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Oct 20, 2023

How the Supreme Court conservative 'supermajority' is changing the country

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Last June, the Supreme Court ended the federal right of American women to obtain an abortion nationwide, rewrote its interpretation of the Second Amendment and clawed back some of the Environmental Protection Agency's ability to fight climate change.

This June, the court's conservative majority could make equally consequential decisions on race as a factor in college admissions, the Voting Rights Act and religious freedom. Read more about the coming decisions.

I talked to Michael Waldman, president and CEO of the Brennan Center for Justice at NYU Law School, about his new book, "The Supermajority: How the Supreme Court Divided America."

In particular, Waldman has his eye on the Supreme Court's looming decision on voting rights. I wanted to hear his argument about why the court's tick to the right is outside of historical norms. He also sat on a presidential commission to outline ways to reform the court and says there is one fix on which most people agree.

Excerpts of our conversation, conducted by phone, are below.

WOLF: The court is about to rule on big cases related to voting rights and affirmative action. What do you expect to hear from the court?

WALDMAN: June, of course, is the month where the court makes its big decisions. This year, we expect big decisions on race and democracy. Those topics come together on the Voting Rights Act.

For decades, going back to the Shelby County case, the Supreme Court has gutted one piece after another of the Voting Rights Act. It may finish the job this year.

The case of Merrill v. Milligan could gravely weaken the use of the law to stop racial gerrymandering with the dilution of the political power and votes of minority communities. That is something that's been used for over half a century, effectively – it is now on the line in this case.

WOLF: You have a new book about the conservative supermajority that now sits on the court. What's the basic thesis?

WALDMAN: Last year was the first full year of a very conservative, six-vote supermajority of justices marching in lockstep. They have begun to issue very significant – and I would argue extreme – rulings, changing the country in significant ways. Last June, three days ended decades of social policy.

► You have the Bruen ruling, which was by far the most sweeping Second Amendment case in the country's history.

► The next day was the Dobbs ruling overturning Roe v. Wade and the federal constitutional protection of reproductive rights that had been available for half a century.

► Finally, in the case of West Virginia v. EPA, which is less well known, beginning to sharply restrict the ability of government regulatory agencies to protect public health and safety and the environment.

It was a lot in a few days, and there's every reason to think that conservative ambition will continue on the Supreme Court.

WOLF: There is clearly a lot of frustration among progressives, liberals and Democrats about the direction of the court. But the overturning of abortion rights – the nationwide right to abortion only existed because of an earlier Supreme Court. Today, same-sex marriage only exists nationwide because of the Supreme Court. American schools – they were only integrated because of the court. Why is what's happening today different than just situational politics?

WALDMAN: Well, I don't entirely agree with your factual statement. Marriage equality was making huge progress all over the country before the court ruled in Obergefell. And in fact, when the court ruled in Obergefell on marriage equality, public approval of same-sex marriage was at 60%, 70%.

(Note: It was at 57%, according to Pew Research Center polling just before the 2015 decision.)

Now Brown vs. Board of Education, in 1954, struck down school segregation, but it was really not until Congress passed the Civil Rights Act a decade later, after the organizing of the civil rights movement, that you really saw an end to segregation in the United States. These things were the product of government and federal government at all levels.

But it is true that one of the things I write about in my book is that the federal constitutional protection of abortion rights through Roe v. Wade led to decades of organizing by conservatives, while liberals very often relied on the court and lost the muscle memory of how to effectively engage in politics on some issues.

The Supreme Court, as a general matter throughout the country's history, hugs the middle. It reflects the consensus of the country or at least the governing elites in the country at any time.

But a few times before there's been overreach and a strong reaction. When the court is extreme or partisan or unduly activist, it's met by a backlash by organizing, even by political realignment.

You saw that in 1857 with the Dred Scott ruling. It happened again in the early 20th century, when the court struck down many laws trying to protect workers.

There was a strong backlash to the Warren court and the Burger court, which was what came right after, and we’re living in that backlash today.

I think that this court, this supermajority court, is provoking a political response that's only beginning and could help shape the coming years.

I think it's also interesting – I don't think it's a purely partisan or ideological response. Public confidence in the Supreme Court has collapsed to its lowest level as recorded in polls. I think a lot of these rulings have surprised people and made them wonder if they’re the right role for the court.

WOLF: In the book, you say the court was not supposed to be as powerful, according to the framers, as it has become. Part of the reason for that is because Congress fails to do much of anything these days. Congress could respond to the abortion decision. It could respond to the voting rights decisions. It could essentially fix all of these problems that you point out. But it is stuck on solving hard problems.

WALDMAN: You’re right that in a lot of instances, Congress could respond.

For example, it could restore the strength of the Voting Rights Act. In fact, legislation to do that passed the House and President (Joe) Biden was willing to sign it, and it had majority support in the Senate. But because of the filibuster, it didn't become law in 2022.

How Congress lost control of the Supreme Court

It's a challenge, in that if Congress cannot protect rights nationwide because of the filibuster and congressional dysfunction, and the Supreme Court will not protect rights nationwide, then state governments have a green light to abuse their own citizens in some instances. And that is one of the consequences of the situation we’re in today.

WOLF: You had some interesting data in the book about how Republican presidents have been able to put their mark on the court despite Democrats getting more votes in most recent elections. I can't help but think that's not a structural problem, but just bad luck.

We all think about Ruth Bader Ginsburg dying while a Republican was in office, but if Thurgood Marshall, a Democratic appointee, had just been able to hang on for another year in the ’90s rather than retire during a Republican administration, the court would have been different for decades after that. We wouldn't have had Justice Clarence Thomas.

WADLMAN: This imbalance did not start with Mitch McConnell. It didn't start last year. Democrats have won the popular vote in seven of the last eight presidential elections. That's the longest winning streak for a party in American history in the popular vote.

Republican presidents have appointed six of the nine justices. Some of that is just luck and happenstance. One seat, the seat that President (Barack) Obama nominated Merrick Garland to fill – that's because Sen. Mitch McConnell and the other Republicans refused to consider the nomination for a year in an extraordinary breach of precedent and norms.

It is an interesting fact, that people don't really focus on, that control of the White House has pretty much been evenly divided for the last half century – but the last time justices appointed by a Democratic president held a majority on the court was 1970.

And the last chief justice nominated by a Democratic president? Here's a trivia question – it was in 1946! So some of this is structural, some of it is luck. And some of it is hardball politics.

WOLF: Let's talk about the structure. Particularly among progressives, there is a growing call to change the structure of the court. You sat on a commission appointed by the White House to look at ways to do that. You issued a report, but it didn't get a lot of attention. What happened to that commission process?

WALDMAN: It's interesting, you know, these commissions are often created with the idea that they won't do very much. And in fact, this commission was instructed at the beginning not to reach consensus.

But something pretty interesting did happen. We heard from public witnesses from left and right, and they disagreed on a lot of things. Some supported expansion of the court, others opposed it. Some supported an ethics code. Others oppose.

Over and over again, the witnesses said, "I support term limits." There is a broad national consensus for 18-year term limits for Supreme Court justices.

I think it is a reflection of the insight from George Washington, for example, that nobody should have too much public power for too long. He, of course, stepped down after two terms.

This is how it is done in all but one state Supreme Court. They all have a term limit or a retirement age requirement. And also the constitutional courts of other countries. It would lead to a more responsive court. It wouldn't help either party. And it would just help keep the court more in touch with the country.

It can certainly be done by constitutional amendment. I think also that it could be done by statute. But fundamentally, it is a very popular idea. And I think there's a kind of an unspoken national consensus for it.

WOLF: If you were in charge, what else would you do to fix things?

WALDMAN: Part of that, in terms of how to do it, would be that each president would get an appointment every two years. Regular appointments would hopefully help drain some of the partisan poison out of the confirmation process.

The other major change that I think would make a lot of sense will be a binding ethics code for the Supreme Court. The US Supreme Court is the only court that I know of in the United States that does not have a binding ethics code.

Dismantling the Supreme Court's 'misdirection' about its own ethics

All the other federal courts do. The state Supreme Courts do.

Nobody is so wise as to be the judge in their own case. And the logic of this seems pretty ironclad. They’re asking us to trust them. They’re going to police their own ethics.

The recent revelations about Clarence Thomas and how his lifestyle has been subsidized for years by a billionaire without disclosure suggest why something stronger is needed.

WOLF: In the book, you describe Chief Justice John Roberts as having a specific opposition to the Voting Rights Act for more than 40 years that he's been acting on.

WALDMAN: John Roberts is an institutionalist. He does seem to care about the credibility of the court and its public standing. He wants to steer it to the right, but carefully.

In one area of the law, though, he has been very aggressive. Very activist. The law of democracy. Since he was a young lawyer in the US Department of Justice, he's been on a crusade to gut the Voting Rights Act, the great and very effective civil rights law passed in 1965.

► The court in 2013 issued the Shelby County ruling, which effectively knocked the most effective provision in the law, which required states with a history of discrimination in voting to get permission from the Justice Department or a federal court before they could change voting rules.

► In 2021, (the court) made it very hard to use Section 2 of the law to sue against voting rules that were discriminatory.

► Now they’re considering significantly weakening a part of the law that blocks racial gerrymandering. That's the drawing of district lines in a way that would diminish the effect of the vote for Black people and other racial minorities.

WOLF: Changing the rules about racial gerrymandering, in particular, could have such a profound effect on control of Congress, I would think.

WALDMAN: It could very much affect control of the House of Representatives if it gives a green light for state legislatures to draw their maps in a way that diminishes the power of voters of color and increases the power of the incumbent political party – in this case, the Republicans.

WOLF: But again, not to belabor it, but Congress passed voting rights legislation in the ’60s. It's been updated multiple times since. So, while you can say it's bad for the court to gut the Voting Rights Act, isn't it also equally bad that Congress, and in particular the Senate, are unable to address that? It's a complete systemic breakdown, not a court breakdown.

WALDMAN: There's not a breakdown of the court. It's an egregious overstep by the court. It's a breakdown in the Senate that they can't do anything about it.

The last time the Voting Rights Act was considered in Congress in 2006, it was reauthorized; it passed the Senate 98 to nothing. And George W. Bush proudly signed it into law.

Now, following on Donald Trump's "big lie" about the stolen election, Republicans in the Senate are refusing to act on any voting bills, including the Voting Rights Act that they once supported.

They’re filibustering those bills. The filibuster was long used by segregationists to oppose voting rights laws and civil rights laws. It is being used again to stop the Senate from undoing the damage done by the Supreme Court.

WOLF: You touched on this at the beginning of our conversation, and it's also in the book – about how we’re about to see a period of political involvement, potentially. What do you think activists should do? First and foremost, should they look to change Congress? Should they look to the grassroots level? What will a new era look like?

WALDMAN: So the most important thing in my view is that liberals need to do what conservatives have been doing for years, which is to care about the Constitution and don't be bedazzled by the Supreme Court. Talk to politicians, lobby Congress.

Congress can, sometimes, pass laws to undo rulings by the court. There are reforms that can be enacted like term limits. There could be constitutional amendments to undo misguided decisions. Decisions, such as Citizens United, which has led to the effective deregulation of campaign finance laws and a flood of big money in American politics.

And candidates, including the president, need to talk about this.

There's been a debate about the Supreme Court, but to some degree in recent years, it's been one-sided. Conservatives have been very vocal and very clear about what they think needs to happen. And too often, liberals have been silent, and I think that has to change.