Adding more justices to the bench might be the only way to stop them.
By Adam Serwer
For a judge with a brilliant legal mind, Amy Coney Barrett seemed oddly at a loss for words.
Does a president have the power to postpone an election? Senator Dianne Feinstein of California asked. Barrett said she would have to approach that question—about a power the Constitution explicitly grants to Congress—“with an open mind.”
Is voter intimidation illegal? Senator Amy Klobuchar of Minnesota asked. “I can’t apply the law to a hypothetical set of facts,” Barrett replied. Klobuchar responded by reading the statute outlawing voter intimidation, which exists and is, therefore, not hypothetical.
Should the president commit to a peaceful transfer of power? Senator Cory Booker of New Jersey asked. Barrett replied that, “to the extent this is a political controversy right now, as a judge I want to stay out of it.”
Taken together, these three questions ask whether the president is, in essence, an elected monarch who, once in office, can determine the time and circumstances of his relinquishing power. Federal law stipulates that states must report their election results by the fourth Wednesday in December; the Constitution mandates that a president’s term ends at noon on January 20. Voter intimidation is outlawed by statute rather than by the Constitution, but the law is unambiguous. Yet Barrett could not commit herself to affirm the bedrock principle of American democracy: the ability of voters to choose their leaders in free and fair elections.
The idea that a potential justice would be unable to address these questions is risible. Barrett seemed perfectly comfortable affirming her support for the Brown v. Boarddecision—a precedent safe to endorse, perhaps, because it has already been neutered. The most charitable explanation of her reluctance to do the same for the basic elements of election law is that Barrett is trying to avoid antagonizing President Donald Trump, who has said he needs her on the bench to decide the election in his favor. That explanation itself would be disqualifying.
Barrett’s evasions are all the more alarming in light of the Republican Party’s decades-long campaign to ensure victory by targeting Democratic constituencies with voting restrictions and other measures designed to limit their political representation, while disproportionately enhancing the influence of conservative white voters. Barrett’s successful confirmation would move the Supreme Court, dominated by conservative appointees since the 1970s, even further to the right on such matters as civil rights, environmental protections, and business regulations. But the more urgent threat is how a 6–3 conservative court might work to entrench the Republican Party’s ability to wield power without the consent of the governed.
In the past few weeks alone, conservative judges have amply displayed their contempt for Democratic constituencies’ right to the franchise. On October 12, Trump appointees to the federal bench in Texas upheld Governor Greg Abbott’s decision to permit counties to designate only a single drop-off point for absentee ballots—a choice that will cause few problems in rural counties, where Republicans typically dominate, but has already created chaos in more populous counties, where Democrats are likely to draw a significant number of votes. In Harris County, which covers nearly 2,000 square miles, 5 million voters are now left with a single drop box. “One strains to see how it burdens voting at all,” the court concluded.
In September, Trump appointees upheld the Jim Crow logic of a Florida poll tax that disenfranchises the formerly incarcerated by forcing them to pay restitution before having their voting rights restored, even though the state has provided them with no means of finding out what they owe. This week, Governor Ron DeSantis ordered that they be purged from the rolls outright, which would complete the nullification of the 2018 referendum restoring voting rights to the formerly incarcerated, one voters approved by an overwhelming margin.
Last Tuesday afternoon, while Barrett was testifying that she did not know whether voter intimidation was illegal, the Supreme Court allowed the Trump administration to shut down the census early, effectively collaborating in an attempt to diminish the political influence of minority communities by undercounting them, a scheme hatched by a Republican operative as part of what he described as a plan to enhance the power of “Republicans and Non-Hispanic Whites.”
Barrett’s future ascension to the high court portends tremendous headwinds for progressive priorities and legislation. But this is not sufficient reason for Democrats to consider drastic measures such as expanding the Supreme Court. What does justify such measures is that the Republican political project has gone beyond shaping policy to rigging the electorate. In politics, sometimes you lose—and the Court’s rightward tilt for the past half century has reflected the left’s losses. The conservative justices, though, have now concluded that their role is to help the Republican Party continue to wield political power, by inhibiting voters’ ability to make a different choice.
James K. Vardaman, later a Democratic governor and senator from Mississippi, wanted to be very clear about the purpose of the state’s 1890 constitution. “Mississippi’s constitutional convention of 1890 was held for no other purpose than to eliminate the nigger from politics,” Vardaman declared. “Not the ‘ignorant and vicious,’ as some of the apologists would have you believe, but the nigger.”
But when the case of Williams v. Mississippi came before the Supreme Court in 1898, challenging the state’s constitution and its laws for discriminating against Black voters, the Court upheld the rules. Justice Joseph McKenna wrote that even though the state’s poll tax, grandfather clause, and literacy tests had reduced the registration rate of one of the largest African American populations in the country to almost nothing, the measures themselves did not mention race and therefore did not violate the Constitution’s prohibitions on racial discrimination.
“It has been uniformly held that the constitution of the United States, as amended, forbids, so far as civil and political rights are concerned, discriminations by the general government or by the states against any citizen because of his race,” McKenna wrote. “The operation of the constitution and laws is not limited by their language or effects to one race. They reach weak and vicious white men as well as weak and vicious black men, and whatever is sinister in their intention, if anything, can be prevented by both races by the exertion of that duty which voluntarily pays taxes and refrains from crime.”
As the legal historian Lawrence Goldstone wrote in Inherently Unequal: The Betrayal of Equal Rights by the Supreme Court, the justices had “chosen a paper-thin, even tortured, interpretation of the Fourteenth Amendment and turned a blind eye to the obvious.” When it came to Black rights, the Supreme Court was both ignorant and vicious.
The Williams case capped a decades-long process of disenfranchisement. Although the Reconstruction governments guaranteeing equal rights for Black Americans had been overthrown by 1876, and Republicans had retreated from their advocacy of racial equality, southern politics remained in flux for some years after. The long night of Jim Crow did not fall all at once.
“Blacks continued to endure abuse and risk bodily harm in order to try to cast ballots. White southerners were also all too aware that just because the Supreme Court had drifted away from freedmen’s rights, this was no guarantee that they might not one day drift back again,” Goldstone wrote. “For white society to permanently breathe easy, they would need to find a way to imbed in law what was practiced in the community.”
As the historian C. Vann Woodward wrote in 1955 in The Strange Career of Jim Crow, Democrats embraced a violent politics of white identity in order to splinter any potential class alliances between poor whites and Blacks.
“The leaders of the movement resorted to an intensive propaganda of white supremacy, Negrophobia, and race chauvinism,” Woodward wrote. “Such a campaign preceded and accompanied disenfranchisement in each state. In some of them it had been thirty years or more since the reign of the carpetbagger, but the legend of Reconstruction was revived, refurbished, and relived by the propagandists as if it were an immediate background of the current crisis.”
States, the laboratories of democracy—or, in this case, its suppression—experimented with different methods that would disenfranchise Black voters while being superficially race-neutral enough to pass under the blind eye of the justices on the Supreme Court, who were willing to countenance the most blatant forms of discrimination so long as they did not announce their obvious purpose.
There were grandfather clauses, which exempted those who had been able to vote prior to the Civil War and their descendants from the new, onerous voting requirements. There were poll taxes and property requirements, which dispossessed Black men could not afford. There were literacy tests, which could take the form of unanswerable questions in the event that a prospective Black voter knew how to read. All of these provisions were aimed at disenfranchising Black voters, but technically such measures didn’t mention race at all. After Williams, southern states were free to employ all of these methods: The Constitution was no obstacle to white supremacy in the South.
There were also explicitly racist methods of disenfranchisement, such as the exclusion of nonwhite voters from Democratic primaries in much of the one-party South. The white primary would pass constitutional muster well into the 20th century, under the rationale that the Fourteenth Amendment applied only to state actions, not private actors. But “race neutral” methods worked well enough to disenfranchise Black Americans even without white primaries.
These methods were swept away by the 1965 Voting Rights Act, which not only enforced the Fifteenth Amendment’s protections against racial discrimination in voting but also placed jurisdictions with a history of such measures under federal supervision to keep them from being reimposed.
That worked. That is, it worked until Chief Justice John Roberts decided that such protections were no longer needed. “Our country has changed,” Roberts announced in his 2013 opinion in Shelby County v. Holder, which rendered useless the provision allowing the federal government to preempt discriminatory voting changes in jurisdictions with a history of discrimination. “The question is whether the Act’s extraordinary measures, including its disparate treatment of the States, continue to satisfy constitutional requirements,” Roberts wrote. In effect, the chief justice held that the real prejudice was not the disenfranchisement of Black Americans—no longer a serious risk—but the Voting Rights Act’s treatment of states with a history of disenfranchising Black Americans.
Roberts’s opinion doesn’t actually say what part of the Constitution the formula that Congress developed for enforcing the Voting Rights Act violated. Instead, he declares it a “dramatic departure from the principle that all States enjoy equal sovereignty.” This principle does not appear in the text of the Constitution, but it was the basis for several infamous decisions, including the 1857 Dred Scott ruling, in which Chief Justice Roger Taney declared that Black Americans could not be U.S. citizens. For that reason, the legal scholars James Blacksher and Lani Guinier wrote in 2014 that Roberts’s rationale in Shelby County was “based on the jurisprudence of slavery.”
The chief justice’s affection for “equal sovereignty” reflects not the overt racism of a McKenna or a Taney, but a nostalgia for an antebellum Constitution that was forever changed by the Reconstruction amendments, a revolution the right’s jurists have been loath to accept. So instead of citing Dred Scott, Roberts chose a few minor cases and an opinion he had written in 2009, which had invoked the concept of equal sovereignty for the first time in decades. Roberts knew which knife he wanted to use to gut the Voting Rights Act, but he had to wipe Taney’s fingerprints from the handle first.
Shelby County ushered in a new era of experimentation among Republican politicians in restricting the electorate, often along racial lines. The country, it turned out, hadn’t changed as much as Roberts insisted. As subsequent decisions showed, the chief justice was far more interested in ensuring that a greater injustice—federal supervision of voting rights—would be rectified.
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