This Foreword examines the recent degradation of American democracy, seeks explanations for it, and canvasses the Supreme Court’s contribution to it. Section IA examines the “autocrats’ playbook” to establish a baseline against which to evaluate recent American developments. Part IB considers President Trump’s authoritarian bent. Part IC describes the measures that Republicans have enacted in states to entrench themselves in power, including partisan gerrymandering, voter identification laws, purges of the voter rolls, measures to suppress the youth vote, circumvention of inconvenient voter initiatives, and even the delay and cancellation of elections. Part ID considers Republicans’ complicity with Trump, which has escalated over the course of his presidency, to the point that they mostly will not criticize him for obstructing the investigation into Russian interference with the 2016 presidential election, pressuring the president of Ukraine to dig up dirt on Joe Biden, politicizing law enforcement and intelligence, or catastrophically mishandling the federal government’s response to the coronavirus pandemic.

Part II offers explanations for the nation’s current political predicament. Groups that fear becoming perpetual political losers may abandon their commitment to democracy, just as white southerners did in the antebellum period. Part IIA, “The Disappearing White Majority,” examines the role of demographic change, immigration, and increasing racial resentment in growing disaffection with democracy. Part IIB, “The Disappearing Christian Majority,” describes how the gradual collapse of the idea of the American “Christian nation” has contributed to such disaffection. Part IIC, “The Rise of the Neo-Ayn Randians,” considers how radical libertarians, never enthusiastic about democracy because of the threat it posed to property rights, gradually gained ideological and political influence since the 1960s and came to dominate the Republican Party. Part IID, “Economic Inequality,” explores how working-class Americans, whose economic position stopped improving about forty years ago, have become disaffected with a democratic political system that no longer works for them. Part IIE explains how these other developments, refracted through American political and media ecosystems, have produced a politics of asymmetric polarization, hardball, and negative partisanship, which created a Republican Party no longer strongly committed to democracy and prepared to defend at all costs a president with a strong authoritarian bent.

Part III examines the Supreme Court’s contributions to the degradation of American democracy. The Court’s conservatives abrogated the preclearance provision of the Voting Rights Act, enabling Republican governments in the South to enact voting restrictions enabling the party to maintain political power in rapidly diversifying states such as Florida, Georgia, North Carolina, and Texas. The Court’s Republican Justices have also upheld stringent voter-identification laws and purges of the voter rolls, both of which purport to address the largely non-existent problem of voter fraud, while disfranchising Democratic-leaning constituencies, such as persons of color, the poor, and the young. Most recently, the conservative Justices have declined to intervene against partisan gerrymandering, which has mostly benefitted Republicans in recent years. 

The Court’s campaign finance decisions, dating back to 1976 but becoming increasingly extreme over the last decade, have created a political system dominated by money, which advantages Republicans who disproportionately benefit from the political spending of the most affluent Americans. In Bush v. Gore (2000), the Court helped to elect a Republican president, who appointed two conservative Justices, without whose participation none of the recent rulings undermining democracy would have been possible.

In 2019, the conservative Justices fell one vote short of enabling Republicans to entrench themselves in power for another decade by ensuring that persons of color would be undercounted in the 2020 census. Only a last-minute change of heart by the Chief Justice stymied that effort. The conservative justices have also abjured the Court’s traditional role in protecting vulnerable racial and religious minorities from discrimination by validating the Trump administration’s thinly veiled ban on Muslim travel to the United States. Part III concludes by discussing how constitutional interpretation works in general and why the Republican majority’s rulings on issues of democratic governance nearly always benefit the Republican Party.

Part IV briefly considers how to bolster American democracy. The best way to stem the degradation of democracy is to entrench democracy. Yet, this is an uphill battle, both because political actors who benefit from the status quo are incentivized to resist changes to it and because various structural features of the American political system advantage Republicans. To entrench democracy, Democrats would need to overcome simultaneously the disadvantages of partisan gerrymandering and geographic clustering in state legislatures and the House of Representatives, extreme malapportionment in the Senate, the vagaries and malapportionment of the electoral college, and the flood of unregulated political spending that the Court has unleashed. Even then, Republican Justices might invalidate democracy-entrenching measures. Moreover, some such measures, such as campaign-finance reform, may require a constitutional amendment, given the conservative Justices’ strained interpretations of the First Amendment.

The Court has a Republican majority today only because Senate Majority Leader Mitch McConnell stole a Supreme Court seat from Democrats in 2016, when he refused to permit President Obama to fill the vacancy left by the death of Justice Antonin Scalia. The entrenchment of democracy will probably require Democrats to undo that theft. 

A brief Conclusion examines competing reasons to be pessimistic and optimistic regarding prospects for stemming the degradation of American democracy, and reflects on the deeply contingent nature of this story’s outcome.

Foreword: The Degradation of American Democracy—and the Court

The nation-wide cycle of redistricting is the most consequential, repetitive decision-making process shaping the nature of American democracy. Because the arrangement of the districts forms an essential part of the rules of the game, the process by which they are drawn is meta-politics or a quasi-constitution making activity. The research on this process is voluminous and includes bits and pieces of the process. But the process is complicated, in part because the criteria for redistricting are in conflict with one another. The criteria include considerations of political geography, physical features, community of interest, one person one vote, race and ethnicity, partisanship, contiguity, compactness, recognition of local political boundaries, incumbents addresses, and desires for minimal change. The literature also covers the use of geographic information systems in the process and possible reforms. But no overall theory of redistricting has been developed which includes all these features.

Redistricting in the U.S.: A Review of Scholarship and Plan for Future Research

Concepts are the building blocks of legal doctrine. All legal rules and standards, in fact, are formed by combining concepts in different ways. But despite their centrality, legal concepts are not well understood. There is no agreement as to what makes a legal concept useful or ineffective—worth keeping or in need of revision. Social scientists, however, have developed a set of criteria for successful concepts. Of these, the most important is measurability: the ability, at least in principle, to assess a concept with data. In this Essay, we apply the social scientific criteria to a number of concepts and conceptual relationships in American constitutional law. We show that this field includes both poor and effective concepts and conceptual links. We also explain how the examples of poor concepts could be improved.

The Concepts of Law

In 2013, the US Supreme Court overturned key elements of the Voting Rights Act relating to the racial geography of the USA and relations between federal and state government. The historical background to the Act and its role in changing the political geography of voting are explored. A detailed analysis of the ruling, Shelby v. Holder, reveals competing national imaginaries. The Court's majority view saw a cohesive nation where past assumptions of the racist geographies of the USA centered on the ‘Deep South’ no longer hold true. The Court's minority view, saw a nation still deeply divided and subject to second-generation discriminatory practices. The contradictions of both are discussed. The resiliency of the Act and the implications of the ruling are examined.

The Supreme Court, the Voting Rights Act and Competing National Imaginaries of the USA

/pdf/enforcing-the-fifteenth-amendment-imxboblf8q.pdf

Enforcing the Fifteenth Amendment

This paper examines 331 lawsuits, encompassing 763 decisions, that addressed claims under Section 2 of the Voting Rights Act since 1982. It finds that plaintiffs succeeded in 37% of these lawsuits, and that they were more likely to prevail in regions subject to the temporary provisions of the VRA (known as Section 5 or pre-clearance) than elsewhere. This study also documents the types of electoral practices challenged in Section 2 cases, and the extent to which courts hearing these cases documented any of the factors listed as probative in the Senate Report accompanying the 1982 amendments to Section 2 and those described by the Supreme Court in Thornburg v. Gingles.

/pdf/documenting-discrimination-in-voting-judicial-findings-under-5aa61dxar4.pdf

Margaret Aisenbrey

Papers

Documenting Discrimination in Voting: Judicial Findings Under Section 2 of the Voting Rights Act Since 1982