The United States Supreme Court: At War With Democracy


Not Much Democracy to Begin With

The Founding “Fathers” had a very narrow view of democracy: voting was to be limited to rich white male landowners. Still, it was an important step in the development of democratic government, especially compared to the prevalence of monarchy (one person rule) in most places at the time. These first democrats did not envision majority rule as preferable and put in place in the Constitution many constructs to prevent such “rule by the mob” (of rich white male landowners?), such as the anti-majority rule US Senate, the electoral college, and the ridiculously difficult amendment process, (not to mention the codification of slavery). But they did also put in place a system of “checks and balances” to insure that any one branch did not assume the power of an autocrat and undermine democratic “values”. The Supreme Court was supposed to be the branch of government of last resort to save our democracy when threatened.

Who Left Out the Right to Vote?

The main body of the Constitution was not that much to write home about. It contained few if any guarantees of personal liberty. It was the Bill of Rights, or the first ten amendments to the Constitution, which set forth those rights (freedom of speech, the press, to a jury trial, against self incrimination, etc.), and which Americans typically talk about as their “Constitutional Rights”. But the U.S. Constitution is silent as to any Right to Vote. That is purely a state issue, even when voting on federal officials (except when right wing justices need to insure that a Republican is elected president, see below). It is true that IF a state holds an election, it can’t (openly) discriminate against women and minorities (by virtue of the Civil War amendments, the Voting Rights Act (what’s left of it), and the Women’s Suffragette Movement). But no affirmative, explicit Right To Vote. Surprise!

What Else Went Wrong?

Where to start? There are Supreme Court cases over the period from its creation in 1789 to the millennial when the Court protected democracy and other cases where they restricted it. That is way beyond the scope of this article, however. But since about 2000, it has been on a crusade to destroy every vestige of US democracy and any hope of majority rule. Here are some top hits:

1. Bush v Gore

Let’s start with the Court’s Dec. 2000 decision when it handed the presidency to Bush (who lost the popular vote) in a 5-4 decision where Justice Sandra O’Connor, who should have recused herself given that she was on Bush’s reelection team, sided with the majority in denying the Florida Supreme Court its constitutionally rightful role in determining the Florida recount procedure. This abridgment of a state’s traditional right in election cases hypocritically was the polar opposite of what the conservative justices had been complaining about re the so-called liberal justices’ agenda against states rights. But handing the presidency to a conservative president who echoed their ideological agenda was paramount.

2. Citizens United

I suspect that hundred of years from now historians will wonder what kool-aid these lunatics were drinking when they decided in 2010 that “corporations were people” endowed with such freedom of speech that the constitution required that they be allowed to spend unlimited funds to buy elections and drown out the effective speech of real people. No case has come close to underlying democratic principles and the equal playing field principle so essential to a fair election. We will be haunted by this decision for generations until it is overruled or the Constitution amended.

3. Shelby County v Holder

For the symbolism alone, the 2013 decision (5-4) striking down the key part of the 1965 Voting Rights Act tops the cake. The very law used by African Americans and other minorities to counter one hundred years of illegally being denied the right to vote in 9 southern states, a law that many died for, disappeared in a second when the radical fundamentalist and racists who make up the majority suddenly said the law was no longer needed and therefore these states could enact whatever restrictions on voting they wanted without first getting US Justice Dept clearance. Within days, the state bigots started feasting on the infringements of the right to vote, having been handed the Court’s blessing. A sad day indeed.

4. Voter ID Laws

The Supreme Court majority has rarely met a voter ID law that they didn’t endorse. Too numerous to list, the fact that the various state legislators who enacted these laws bragged that they were to make it harder for the young, minorities, students, and others who tend to vote Democratic to exercise their voting rights apparently made it even more unassailable. The moral: don’t lose that hunting license if you want to vote.

5. Gerrymandering Cases

Just last month, the Court refused to even hear challenges to the most insidious of all schemes to deny majority rule: partisan gerrymandering, where a state like Pennsylvania can see the majority of voters in Congressional races vote Democratic and the result is they elect a delegation of 12 Republicans and 6 Dems! And there is no dispute that this result is precisely the intent of the Republicans who control the State House. How is this possible in a Country which claims to be a beacon of democracy and freedom for the rest of the world to follow?

6. And Then There’s New York

It is now common knowledge that the Empire State has the most archaic and undemocratic voting laws in the Country. North Carolina (where the legislature brags about its new restrictions on the abilities of Democratic Party leaning voting blocks to vote), Florida (which disenfranchise 3 million felons from EVER voting, and Texas (which is, well, just Texas), are amateurs in making the vote a matter of privilege, exercised by, well, (mostly rich white male landowners?) Not quite, but you get the point. You don’t get a turnout rate of 9% of registered major party voters (the % of registered Dems who voted in the 2014 Dem Gubernatorial Primary) without working at this disenfranchisement business for a long time.

7. Rosario v Rockefeller

It was in this 1973 Decision that the Supreme Court made its special contribution to NY’s unique system of disenfranchisement, holding that there was no federal constitutional problem with the statute which requires a registered independent (non- major party enrollee) who wants to vote in a major party primary (which determines over 90% of all elections) to file a “change” in her party enrollment by 335 days before the primary. The Court was apparently not impressed by the facts that no other state had a deadline even close to this length of time or that it (currently) effectively disenfranchises over 3 million REGISTERED voters or that, strangely, a brand new voter can register 25 days before the primary and vote in it. Thanks guys!

How Can We the People Fight Back?

Tune in to the sequel coming out in November: The Voters Strike Back!

—George Albro, Co-Chair, Downstate