Supreme Court ready to take a sledgehammer to US democracy?

The Nine Black Robes are back in session, hearing two cases that may bang the gavel on representative government

The US Supreme Court just started its new term, which will stretch over nine months until June 2023. The previous term was immensely consequential, and this term promises to be just as much so.

In its last term, SCOTUS overturned five decades of precedent protecting a woman’s right to choose by reversing Roe v. Wade. It also curtailed the Environmental Protection Agency’s ability to regulate climate change, and dramatically expanded gun rights even as kids once again were being murdered in school by a gun toting madman.

In short order, the Nine Black Robes have gone from being the administrators of a still-respected institution to something more like the dark ringwraiths of Sauron. This new term is expected to bring a hurricane of potentially destructive decisions over hot button issues like voting rights, elections, affirmative action and LGBTQ discrimination. Two important cases in particular could result in more widespread voter suppression and worse.

What could be worse? How about a case that might provide state legislatures with a new dark power to override judicial oversight in the conduct of elections, including a presidential election. If the latter case goes the wrong way, it will amount to a terrible hit against the doctrines of “separation of powers,” “checks and balances” and the ability of courts to quash unbridled partisan power that corrupts the democratic process. Just in time for 2024.

These elections-related cases are ideologically charged in an already hyper-partisan charged environment. Rather than being a model for judicial restraint and stability, the Black Robe majority is storming in on their steeds like the Six Horsemen of the Apocalypse. By their actions, it seems increasingly clear: this Court wants a confrontation.

First case: the impending demolition of the Voting Rights Act. 

The Supreme Court will soon hear legal arguments in Merrill v. Milligan, a case that could overturn what’s left of the Voting Rights Act, which for 50 years has been the prime civil rights intervention against racial discrimination and voter suppression.

Last February during its previous term, the unelected, nine-member Republican-controlled legislature – er, I mean the Supreme Court of the United States – overturned a federal district court’s order in the case Merrill v. Milligan that had directed the Alabama legislature to draw a new map for its seven congressional seats to prevent the illegal dilution of black voting power. Even though Alabama is 27% black, the legislature had drawn only a single majority-black district, instead of two. The GOP legislature dragged its feet on the redrawing, and was rewarded for its intransigence when the Black Robe majority intervened with a brief unsigned order that omitted any legal rationale or reason for its decision. Just like the unsigned Bush v. Gore in 2000, which provided no rationale for ending the vote counting in Florida and deciding one of the closest presidential elections in US history, this decision had the whiff of judicial partisanship.

Then in March, in Wisconsin Legislature v. Wisconsin Election Commission, the High Court intervened in a case involving the drawing of district lines for Wisconsin’s state assembly and senate districts. The Black Robe majority issued another unsigned order, this one overturning a Wisconsin Supreme Court ruling and further limiting the conditions under which a state may draw a majority-black district.

Then last June 28, continuing its path of Black Rider destruction through the Voting Rights Act, the Republican majority overturned yet another federal district court’s order, this time over a case in Louisiana. Like months earlier in Alabama, the lower court instructed the state legislature to draw a new congressional map to include a second majority-black district. Blacks comprise a third of Louisiana’s population yet the map was purposely rigged by Republican legislators to ensure that a black representative would win only one out of six US House seats. In a familiar pattern, the Justices’ overturn was unsigned and lacked any explanation or reason.

Shake your head and repeat after me: “Five votes beats a reason any day.”

In the midst of all of these legal wrangling’s, law professor Rick Hasen commented that the Supreme Court “continues to chip away at the Voting Rights Act without acknowledging that it is killing off the last major protection for minority voters from discriminatory districting plans.”

Now in its new term, the Supreme Court will pick up where it left off. It will revisit Merrill v. Milligan and make a final determination about the rules and conditions for minority vote dilution. The expectation is that the court majority will further narrow the scope of the Voting Rights Act, making it harder for plaintiffs to win cases. This decision has the potential to completely flush the nearly 60 years old Voting Rights Act, just like the Supreme Court did for women’s reproductive rights in the previous term. As legal journalist and Yale Law School lecturer Linda Greenhouse has written, “Alabama is saying, essentially, that any effort to eradicate racial discrimination is itself racial discrimination.”

Second case: the challenge to state courts' authority to review elections rules

But it gets worse. During this term, the Supreme Court is also rolling out the welcome mat for a fringe legal theory that could radically remake federal elections, and in the process tear the nation apart. 

The Court will hear arguments in Moore v. Harper, a case that challenges a decision by the North Carolina Supreme Court that struck down the General Assembly’s redistricting plan. In their appeal to the US Supreme Court, the plaintiffs are proposing a novel legal theory -- it’s called the “independent state legislature” theory, and it has rapidly moved from the realm of crackpot jurisprudence to full consideration by the Trump appointees that dominate the Supreme Court.

For many years, the federal government has delegated election administration to the states. In the past, that has always meant that the state legislatures make election rules, and the state supreme courts have provided a check against naked partisan prerogative. But under the independent state legislature theory, the legislature would have total control, without interference from the courts, to be the ultimate arbiter of election procedures for its state.

If the Supreme Court buys this argument, state legislatures would be free to gerrymander without any judicial oversight. Or, during a future presidential election, state legislatures would wield more legal firepower to ignore the popular vote and overturn the will of the voters. In 2020, Donald Trump’s allies tried to use the theory to convince some state legislatures to not certify Joe Biden’s victory in their state and instead send Trump’s electors to the Electoral College. So far four Supreme Court justices have signaled their support for this theory –  which means we are one vote away from all hell breaking loose in the 2024 presidential election.

The Conference of Chief Justices, an organization of state supreme court justices, is so alarmed by this prospect that it has taken the rare step of filing an amicus brief telling the Black Robe majority that they should reject the independent state legislature theory.

If state or lower federal courts have no oversight role in whether a state legislature has unchecked power to do whatever it wants when it comes to drawing legislative district lines or deciding the rules for presidential elections, that will tumble us all into a time machine going backward to the early 19th century, before Marbury v Madison (1803) established the court’s role in judicial review. It would mean that the hypocritical Supreme Court has denied to state courts a power that the Supremes have retained for themselves – the power to overturn what it considers to be bad election law.

Just as with the Patriot movement’s nullification and interposition fanaticisms, this independent state legislature theory should be recognized as branches of the sovereign citizen movement, which manifested in the Oklahoma City bombing in 1995, the rancher Bundy standoff in 2014, the January 6 riot, and other sordid episodes. Taken along their logical trajectory, and scaled to the grandiose proportions to which they aspire, this could well mean the end of some key democratic institutions that make “E Pluribus Unum” governance possible.

By July of next year, when the new Supreme Court term ends, our nation may be in the process of burning down a lot of what’s left of national consensus. Let us hope that the Black Rider majority has the wisdom to turn back from the abyss that it seems to be galloping the nation toward.

Steven Hill @StevenHill1776