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Republicans on the Supreme Court, 5 of the 6 appointed by presidents who lost the national vote, are the main reason why Americans can’t have nice things.
Republicans have pulled off a coup against an entire branch of government, and nobody seems to have noticed. But if you pay attention, it’s shocking.
Sometimes you can learn as much from attending to what Republicans suddenly stop saying as from what they are talking about. In this case, it’s their half-century-long obsession with convening a constitutional convention to rewrite the U.S. Constitution. Under Article V of our Constitution, when two-thirds of the states formally call for a “con-con” to rewrite our nation’s founding document, it officially comes into being.
They can then make small changes like enshrining the right of billionaires and corporations to bribe judges and politicians, or insert the doctrine of corporate personhood into the document, or simply throw the whole thing out and start over. Many on the right are hoping to insert a national ban on abortion into a new constitution; others want to end the right of women to vote, do away with all antidiscrimination laws, outlaw labor unions, or return the selection of senators to the states.
So far, 19 Republican-controlled states have signed on to a call for for a convention under Article V. The project, heavily funded by righ-twing billionaires, even has its own website: conventionofstates.com. Consider just a sampling of recent GOP supporters of the project:
But over the past year, Republicans have suddenly fallen silent on the issue. Project 2025, for example, the all-encompassing wish-list for the GOP and its billionaire owners, lacks even one single mention of a constitutional convention.
Why would this be?
The simple and obvious answer is that Republicans are rewriting the Constitution right now, this year and last, through their proxies among the six corrupt Republicans on the U.S. Supreme Court.
Having succeeded in seizing the court, the GOP has been able to relax about their plan to call a convention. So far, just in the past two years, Republicans on the court have taken an ax to the Constitution. They have:
And, it appears, they’re just getting warmed up. Next year could see an end to gay marriage, contraception for single people, the abortion pill, the right to possess pornography (which they get to define) or read “banned” books, any meaningful regulation of billionaire-owned social media, further gutting of union rights, and the insertion of religion into schools nationwide… among other things.
Given how radical and willing they are to overturn established law, constitutional doctrine, and to create new law or constitutional doctrine out of thin air, it’s easy to see why Republicans would shift their efforts away from trying to rewrite the Constitution and toward supporting their shills on the court.
This has not gone unnoticed by U.S. President Joe Biden and his Democratic colleagues. Last month, when the six corrupt Republicans on the Supreme Court ruled that presidents can commit crimes without consequences if they call them “official acts,” President Biden spoke out with an uncharacteristic ferocity:
This decision today has continued the court’s attack in recent years on a wide range of long-established legal principles in our nation, from gutting voting rights and civil rights to taking away a woman’s right to choose to today’s decision that undermines the rule of law of this nation.
Two weeks later, The Washington Post reported:
President Biden is finalizing plans to endorse major changes to the Supreme Court in the coming weeks, including proposals for legislation to establish term limits for the justices and an enforceable ethics code, according to two people briefed on the plans.
With Vice President Kamala Harris having replaced President Biden at the top of the Democratic ticket, and the House still under the control of extremist Republicans under Rep. Mike Johnson (R-La.), it appears that President Biden’s Supreme Court agenda has receded into the background.
But Vice President Harris and Minnesota Gov. Tim Walz should be (and almost certainly are) putting considerable attention and work into how to restrain the Supreme Court from doing further violence to our constitutional system of government once they’re in office.It must be, in fact, their first order of business, for two major reasons.
The first is that several of the rulings by Republicans on the court have had the effect of amplifying and solidifying Republican control over the nation. By single-handedly overturning the voting rights act and legalizing bribery by billionaires, they’ve created a political imbalance that fails to represent the people of our country and instead just does what their favorite billionaires and giant corporations want.
As Michael Moore reports, multiple polls have found in recent years:
None of these things are happening because of the Republican lock on the Supreme Court, the third and unelected branch of government which is today only beholden to whichever billionaire offers individual members the best gifts, goodies, and expensive vacations.
Had the actual winners of the national vote become president in 2000 and 2016, the only Republican on the court today would be Clarence Thomas, and America would be a very different nation.
Instead, we’ve had two illegitimate Republican presidents who essentially packed the court. Justice Sandra Day O’Connor was clear about why she cast the tie-breaking vote to hand the presidency to George W. Bush in 2000: She told friends she didn’t want her replacement to be chosen by Al Gore. And, of course, Donald Trump would never have become president without help from Russian President Vladimir Putin.
These Republicans on the Supreme Court, 5 of the 6 appointed by presidents who lost the national vote, are the main reason why Americans can’t have nice things—from a national healthcare system to free college to a functioning democracy that does what the majority of its citizens want—like every other democracy in the world.
The second reason Harris and Walz should be preparing to act immediately after they’re sworn into office on January 20 of next year (G-d willing!) is that a president’s power is at its peak the moment she takes office. After that, it’s largely downhill, as opposition politicians and the press pile on and even members of their own party begin to highlight cracks in the new administration’s policy chops.
This is why FDR, LBJ, Ronald Reagan, Barack Obama, and Biden all got so much done in their first 100 days. If they hadn’t started out with their top and most controversial priorities, they never would have been able to get to them.
And, because the cancer at the heart of our democracy is currently centered in the Supreme Court, it’s why President Harris and Gov. Walt must focus their energy and political capital on taking on this out-of-control Supreme Court’s power as soon as they take office.
"Our chance to finally achieve fair maps in Ohio is just around the corner," said one supporter of the proposed constitutional amendment.
The campaign for an Ohio ballot measure for a state constitutional amendment to end gerrymandering has collected more than 730,000 signatures, according to the initiative's organizers.
The Citizens Not Politicians campaign said it delivered 731,306 signatures to the office of Ohio's secretary of state in Columbus on Monday, significantly more than the 413,487 valid signatures needed to qualify for November's ballot.
If approved, the Citizens Not Politicians Amendment will:
After the delivery, hundreds of campaign staff, volunteers, and supporters rallied in the Statehouse Atrium to celebrate their achievement and send a message to gerrymandering politicians.
"This is our house, the people's house, and with today's signature turn-in, we move one giant step closer to ensuring that the citizens decide who serves here, not the politicians who just scheme and rig the game to stay in power," said retired Ohio Supreme Court Chief Justice Maureen O'Connor, a Republican who helped write the amendment. "This constitutional amendment will restore power to Ohio citizens and take it away from the self-serving politicians and their lobbyist friends and big-money donors."
According to the Citizens Not Politicians campaign:
Nationally, Ohio is recognized as one of the worst states for gerrymandering, undermining proportional representation and leading to political stagnation and ineffective policy.
More than 9 million Ohioans, or 77% of the state population, live in districts where one party has a severe advantage in the 2024 Ohio House of Representatives elections, according to an analysis by the Brennan Center for Justice at the NYU School of Law.
"In my work for voter access and education, I have seen firsthand how gerrymandering creates a Legislature that is ineffective and unresponsive to the needs of Ohio voters," amendment supporter Tucker Sutherland said. "They don't have to care what we think because they draw themselves into cozy districts where they often don't even face opposition for reelection."
Equal Districts, a coalition of 30 advocacy groups,
said on social media that "our chance to finally achieve fair maps in Ohio is just around the corner."
"Let's end gerrymandering in Ohio," the group added.
The ruling in Alexander v. South Carolina NAACP can be understood as part of the court’s 15-year campaign to prevent the strengthening of our democratic institutions.
Last week, the Supreme Court’s supermajority of six highly conservative justices issued a ruling weakening voting rights laws in Alexander v. South Carolina NAACP. Consider it the opening bugle blast on what could be a dismal season of rulings from the high court.
The case is dense with details and doctrine. Here it is in a nutshell: South Carolina’s Republican legislators drew congressional district maps in a way that diminished the influence of Black voters in choosing a representative. The state denied accusations of racial gerrymandering, which is still (theoretically) illegal. No, South Carolina said, this was good old-fashioned partisan gerrymandering, a quaint and cherished part of our political system. It’s the American way—the founding fathers did it! To this implausible argument, the Supreme Court assented.
How to parse this ruling?
If a gerrymander benefits white (Republican) voters, that’s illegal... but if the same map can be said to merely benefit (white) Republicans, then federal courts cannot touch it.
The first way to understand it, and I hope you’re sitting down: This ruling is good for Republicans. Increasingly that’s the surest way to forecast the Court’s output. Justice Samuel Alito, easily the most predictably partisan justice in recent decades, wrote the decision.
Samuel Alito always flies the Republican flag right side up.
But that’s not all. This ruling tilts governance and politics toward white voters. How so? The odd parsing of the difference between partisan and racial gerrymandering is more than lawyerly sophistry.
In a series of cases decided over decades, justices had struggled to craft a “judicially manageable standard” to redress partisan gerrymandering. In 2019’s Rucho v. Common Cause, the court decided to abandon that effort altogether. Chief Justice John Roberts’ cynical majority opinion declared partisan gerrymandering claims “nonjusticiable,” meaning federal judges were barred from deciding them no matter how egregious the gerrymander.
Inconveniently, it was still illegal to draw district lines with the intent to create a racial majority. This left judges in a bind. Racial gerrymandering can look a lot like partisan gerrymandering in places segregated by race where communities of color have distinct political preferences.
Last week’s decision in Alexander, with its broad safe harbor for partisan gerrymandering, effectively settles that problem at the expense of voters of color. Gerrymanderers only have to proclaim an unfair map partisan (yay!), not racial (boo!). If a gerrymander benefits white (Republican) voters, that’s illegal... but if the same map can be said to merely benefit (white) Republicans, then federal courts cannot touch it.
This ruling can be understood, too, as part of the Supreme Court’s 15-year campaign to prevent the strengthening of our democratic institutions. Often that involves undoing the work of elected lawmakers. Citizens United reversed a century of campaign finance laws and led to a flood of even bigger money in American politics. Shelby County v. Holder in 2013 and Brnovich v. Democratic National Committee in 2021 shredded the Voting Rights Act. This ruling further constrains the reach of that landmark law.
We can pine for better doctrine and shout for better judges, but there’s a better solution: Congress should act. The Freedom to Vote Act, among its other robust provisions, would ban partisan gerrymandering in congressional elections nationwide. (It would thus avoid the tilt that comes when courts in Blue New York are far more aggressive about striking down maps than in Red Texas or Florida, for example.) The John R. Lewis Voting Rights Advancement Act would restore the strength of the Voting Rights Act. Voters, too, have power. In Ohio, citizens are poised to consider a ballot measure in November that would create one of the country’s strongest nonpartisan redistricting commissions.
You know who blessed these efforts to redress the Supreme Court’s partisanship? The Supreme Court itself. In Rucho, Roberts lauded Congress’s power to act. He pointed to the proposed Freedom to Vote Act as proof that “the Framers gave Congress the power to do something about partisan gerrymandering in the [Constitution’s] Elections Clause.” He also pointed to state ballot measures as another way to protect democracy. And we can reform the Supreme Court itself through measures including an 18-year term for justices.
We grow used to the idea that every spring, we wait for nine unelected government officials with lifetime jobs to tell us what kind of country we are going to live in. Elections should serve this purpose, and we the people should do the telling. This is, as journalist Dahlia Lithwick puts it, a form of learned helplessness. Everyone whose blood boils about tales of Samuel Alito’s extremism should be just as exercised about the radical rulings that regularly bear his name.