Liberals need to think of the Republican Party's spreading control over the federal courts in democratic and not just civil-libertarian terms. Our traditional anxiety is that conservative judges will fail to protect the rights of political minorities from attack by an overzealous majority. But the greater danger today is quite the opposite. The new conservative legal agenda is a zealous project by a political minority to thwart the majority's legislative priorities and to undermine the democratic rights of the people.
The emblematic event of this judicial movement was, of course, the U.S. Supreme Court's 2000 decision in Bush v. Gore. In that spectacular failure of law and logic, five of nine justices -- one named to the Court by Richard Nixon, three by Ronald Reagan and one by George Bush Senior -- intervened in the first presidential election of the new century, overruling a state supreme court on a matter of state law in order to stop the manual counting of more than 175,000 uncounted ballots in Florida. By ordering this unprecedented judicial disenfranchisement as a remedy for the entirely hypothetical possibility that some ballots might be treated differently in one Florida county than another, the justices effectively anointed the loser of the national popular vote as the winner of the 2000 election.
Judge Richard Posner, Bush v. Gore's most able defender, cheerfully concedes that the decision's central legal analysis was specious. He argues that the outcome was justified not by anything so banal as the text or meaning of the Constitution but by virtue of the fact that something just had to be done. And the Court could do it so much more swiftly than the messy political branches that actually had the constitutional authority to resolve the issue. Judge Posner did not seem surprised to find tucked into the Court's opinion a proclamation that the American people have "no federal constitutional right to vote."
But we shouldn't be surprised, either. The victory in Bush v. Gore of result-oriented power politics over quaint ideas about formal constitutional democracy was no fluke. The Rehnquist Court has been engaged in a long and sweeping campaign to invalidate any progressive legislative outputs of the American political process and to sharply limit popular inputs.
As discussed elsewhere in this issue, the five-justice conservative majority has struck down dozens of laws passed by Congress, chiefly those expanding the rights of citizens or the reach of regulatory agencies -- often upbraiding Congress along the way for its insolence in enacting them. Whatever you think of the merits of this or that case, the velocity and ferocity of those overrulings refute any claim that "judicial restraint" is the hallmark of conservative jurisprudence.
But the assault on legislation that expresses the popular will isn't the half of it. Far more corrosively, the Rehnquist Court has interfered with the formation of the democratic will in the first place. Indeed, it has left the marks of its right-wing partisanship and nostalgic racial prejudices all over our political institutions and practices.
Consider an exemplary line of cases: the court's decade-long interference with legislative redistricting. In the 1993 Shaw v. Reno case, the Court upheld a stupefying claim brought by Robinson O. Everett, a conservative constitutional law professor at Duke University, and other aggrieved white voters in North Carolina. They complained that they found themselves drawn into a "bizarre looking" and predominantly black congressional district, one of two the North Carolina legislature had created out of the 12 new districts to which the state was entitled in 1992. These two districts elected the first African American members of Congress from the state since Reconstruction: Mel Watt and Eva Clayton, who also became the first woman to reach Congress from North Carolina, a watershed event on Jesse Helms' home turf. But the plaintiffs insisted that the new districts violated the Constitution's Equal Protection Clause because they rambled unevenly and crossed county lines.
This was a curious voting-rights grievance. Facing no literacy test, no poll tax, no night riders, the plaintiffs enjoyed the same chance to vote, to run for office, to give money and to organize as any other citizens. Their situation was no different from that of black voters living in majority-white districts. In fact, the North Carolina plan still left most of the state's African Americans in majority-white districts and left the state's whites, who were 76 percent of the population, a voting majority in 10 out of 12 (83 percent) of the districts. Furthermore, strange-looking gerrymandered districts are as American as apple pie, as the Court has long accepted. And North Carolina's were drawn in an attempt to comply with the Voting Rights Act and rectify the state's history of deliberately suppressing and diluting black voting for most of the 20th century.
But Justice Sandra Day O'Connor, writing for the Court majority, agreed with the plaintiffs and wrote, "The deliberate segregation of voters into separate districts on the basis of race violated their constitutional right to participate in a 'color-blind' electoral process." The opinion thus implied that, in throwing out the North Carolina districts, the justices were only continuing the desegregation work begun by the Supreme Court in Brown v. Board of Education. But this is a baffling analogy, as the challenged districts were the most closely integrated districts in North Carolina history: The 1st District was 53.4 percent black and 45.5 percent white, and the 12th was 53.3 percent black and 45.2 percent white. How could such districts, responsible for integrating the state's century-old lily-white congressional delegation, be equated with 100-percent segregated schools? And how could the Court suggest a right to a "color-blind" electoral process when O'Connor readily admitted that legislatures are always aware of the racial demographics of new districts?
The Court, to put it bluntly, found that Everett and the other white plaintiffs had a right, barring exceptional circumstances, to be part of a white majority. In a display of extraordinary judicial activism, the Rehnquist Court overrode the state, the U.S. Department of Justice and its own history in order to impose this racial double standard. What's more, since Shaw it has continued to undercut the Voting Rights Act. It has taken a machete to dozens of districts drawn to facilitate the democratic participation of African American and Hispanic voters -- while doing nothing of the kind when confronted with districts designed to stifle democracy by assuring the re-election of specific legislative incumbents.
Still, you might suppose that a Court willing to break from precedent to rescue white voters caught behind unsightly district lines would be at least as alarmed about populations in our midst that are actually disenfranchised. Take, for instance, the District of Columbia's nearly 600,000 taxpaying citizens who are denied the right to vote for U.S. senators and representatives, or the 1.5 million citizens who once did time for felonies and now live in the 10 states that thereafter deny them the franchise. But, alas, whenever the current justices have been given the chance to put their radical new reading of the Equal Protection Clause to work for these locked-out populations, they have taken a pass.
The Court's consistent protection of the two-party system is of a piece with those anti-democratic decisions. The Constitution does not mention a two-party system, much less two specific parties. Yet this Court has authorized the major parties to write laws that erect huge barriers to entry into the electoral process, such as the draconian petition-gathering rules imposed on third-party candidates in many states and statutory prohibitions against the kind of "fusion" candidacies that were the lifeblood of progressive politics in the 19th century. The Court has even upheld laws that forbid voters to write in candidates, as if the government -- rather than the people -- owned the ballot.
In the 1998 Forbes v. Arkansas Educational Television Commission case, the Court allowed the exclusion of an independent congressional candidate from a taxpayer-funded debate on public cable television, the only televised debate of the campaign. The candidate, Ralph Forbes, was deemed by state bureaucrats to be not as "viable" or "newsworthy"; as the Democratic and Republican candidates, even though he had won 46 percent of the votes in a statewide Republican primary for lieutenant governor two years before. The Court did not consider that in a democracy, the people determine who is a viable candidate, not the state. And it did not consider that when outsider candidates, such as former Gov. Jesse Ventura (I-Minn.), are actually allowed to debate, they sometimes go on to win.
This term, when it will likely consider the McCain-Feingold campaign-finance law, the Court will get another opportunity to advance favored political actors at the expense of a broad and robust democracy. The McCain-Feingold bans on soft-money contributions and corporate and union electioneering communications have little chance of surviving in this Court, which has zealously protected the right of corporations to spend money advocating their positions in initiative and referendum campaigns. By now, even many liberals have fallen for the contrivance that corporations -- those artificial entities created by the states merely to accomplish certain economic purposes -- enjoy political rights under our Constitution. Ironically, the best hope for taming the monster of corporate political power may lie with Chief Justice William Rehnquist himself, who once wrote that he could not see why "liberties of political expression" are "necessary to effectuate the purposes for which States permit commercial corporations to exist." But that is certainly not the direction in which Rehnquist and his block have been moving.
The genius of a system of divided powers is that when one branch is closed to the desires of the populace or the demands of justice, another may open up. Yet a single minority political faction now controls the House of Representatives, the Senate, the White House and the Supreme Court, and it appears to be immune to all such influences. Perhaps liberals should start talking seriously about constitutional reform. In the meantime, as President Bush puts forward his judicial nominees, it is worth remembering that it is not just civil liberties we are defending. It is democracy itself.
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