In this short and very accessible work, Millhiser focuses on four facets of the court’s current and future jurisprudence: the right to vote, the dismantling of the administrative state, religion and the right to sue. It is a bit surprising that Millhiser, a senior correspondent at Vox, does not address such issues as abortion rights, gay rights and affirmative action. Although he holds out little, if any, hope that the current Supreme Court will act appropriately with respect to those matters, he maintains that, in terms of our democracy, they are less important than the four issues on which he focuses.
The most discomforting of those is the right to vote, which, of course, lies at the very heart of our democracy. At the center of today’s crisis are the ever-more-aggressive efforts of Republican legislatures to find ways to effectively disenfranchise Democratic voters — and especially Black voters. In recent years, the Roberts court has often evaded its responsibilities in this realm. In Crawford v. Marion County Election Board, for example, the court in 2008 upheld an Indiana voter ID law that would clearly have a disproportionate effect on Black voters, even though there was no evidence that the law would meaningfully deter voter fraud.
Even more dramatically, in Shelby County v. Holder, the Roberts court in 2013 held unconstitutional Section 5 of the Voting Rights Act of 1965, which required states and localities with a history of racial voter suppression to submit proposed changes to their election laws either to the Justice Department or to a federal court in Washington, which would not approve the changes if they had the purpose or effect of “abridging the right to vote on account of race or color.” The impact of this decision has been “profound.”
In Millhiser’s words, “many Republicans recognized immediately that they’d been given a gift,” and GOP legislators have acted quickly and aggressively to enact laws, especially in the South, that have had a significant role in preventing minority voters from exercising their most fundamental constitutional right. In light of the current makeup of the court, this trend toward allowing manipulation of the electoral process to benefit Republican candidates is likely, Millhiser predicts, to escalate. The new Georgia law on voting, which has generated a great deal of controversy, is an example of what Millhiser anticipates and fears.
Adding insult to injury, in Rucho v. Common Cause, decided in 2019, the Roberts court held that partisan gerrymandering is not unconstitutional, although it permits a state legislature to draw district lines in a way that ensures that the party in control will remain in control, even if its candidates statewide receive far less than 50 percent of the vote. As Millhiser notes, Republicans in the future “could gain a lock on the House of Representatives, not because they necessarily have the votes to win elections, but because the Supreme Court is likely to remove nearly all remaining safeguards against gerrymandering.”
The court’s actions on voting rights reflect only one part of its conservative activism. Millhiser explains that over the past decade the court has dismantled much of America’s campaign finance law; crippled the Affordable Care Act’s Medicaid expansion; created a religious exemption doctrine that permits a person or a company objecting to compliance with a law for religious reasons to deny the rights of employees and third parties; undermined the ability of public-sector unions to raise money; and halted President Barack Obama’s Clean Power Plan, among other decisions in a similar vein. And, he notes, with “Republicans now controlling two-thirds of the seats on the Supreme Court, the Court could potentially sabotage any policy initiative pushed by President Joe Biden.”
Ironically, he writes, “until very recently, conservative lawyers organized around the principle that courts should be very cautious about exercising too much power.” Today, though, “judicial modesty is now very much out of fashion in conservative legal circles.” Millhiser offers an interesting explanation for this transformation. He notes that, beginning in the 1930s, a general consensus arose that the Supreme Court should take a relatively passive approach to constitutional law unless the challenged law clearly manipulated the electoral process for political ends or clearly disadvantaged what the court termed “discrete and insular minorities” that could not effectively protect themselves in the political process. It was this understanding that largely animated the jurisprudence of the Warren court and of the liberal justices in the years since. Conservatives in that era condemned the Warren court’s activism, insisting that the Supreme Court should be constrained across the board in its interpretation and application of the Constitution.
Once conservatives gained control of the court, though, even though they’ve increasingly been the minority party in recent decades, they abandoned judicial restraint as a principle and concluded that they have “nothing to fear from judicial activism, and everything to gain from it.” Millhiser focuses on those areas in which the conservative majority will probably “support significant rightward shifts in the law — regardless of whether the justices in the majority are driven by originalist ideology, Republican partisanship, or something else.”
“The current Supreme Court,” he warns, “is likely to build a nation where conservatives, and only conservatives, have the opportunity to govern.”
Millhiser analyzes what he sees as a cynical and unprincipled approach by Republican-appointed justices to manipulate the law to serve their own and their party’s interests by overruling prior Supreme Court decisions and dismantling federal agencies dealing with such issues as clean power, health care and homeland security, on the theory that it is unconstitutional for Congress to delegate such responsibilities to the executive branch; overruling decisions holding that the First Amendment does not give individuals and corporations a right to refuse to comply with neutral laws because they offend their religious beliefs; and overruling decisions recognizing the right of employees under the National Labor Relations Act to sue their employers for violating their contractual and other rights.
Millhiser ends the book “with a note of alarm.” In his view, “the Supreme Court’s 6-3 Republican majority is potentially an existential threat . . . to liberal democracy in the United States” as “Republicans are now poised to use their control of the Supreme Court to skew our elections even more deeply in favor of the GOP.” He makes a strong case that Americans should be worried about what a Supreme Court shaped in no small part by Donald Trump’s three appointees — Trump, who defeated Hillary Clinton with almost 3 million fewer votes — will mean for the future of our nation and our democracy.
How a Republican Supreme Court Is Reshaping America
Columbia Global Reports.
143 pp. $15.99 paperback