A Republican vote to replace the late Supreme Court Justice Ruth Bader Ginsburg before the next presidential inauguration could deepen the pressure on majority rule that is already threatening to engulf all elements of America’s political system.
If the Republican-led Senate confirms a nominee from President Donald Trump before January, it would mark the third time a GOP-majority Senate that represents well below half of the US population – allocating half of each state to each senator – would elevate a justice chosen by Trump, who lost the popular vote, to the Supreme Court.
Two of the five currently serving Republican-appointed justices were nominated by President George W. Bush, who also initially lost the popular vote. The final one, Clarence Thomas, was approved by senators who also represented less than half of Americans.
These incongruities would be enormously deepened if Trump and/or the GOP-led Senate loses in November and confirms the nominee anyway. That would raise enormous questions about the Supreme Court’s legitimacy and create pressure on Democrats to enlarge the court if they win unified control of government, a step that would underscore how the action-reaction cycle of contemporary political combat is creating perhaps the greatest strains on the American governmental system since the Civil War.
To a wide array of Democrats and other critics, the possibility of a GOP President and Senate that each has won support from less than half the country locking in a lasting Supreme Court majority crystallizes a much larger dilemma: how quirks in the constitutional system are allowing Republicans to repeatedly wield power in Washington even when more Americans vote for Democrats.
Whether majority rule survives in American politics “is the fundamental question of our time, when you layer on the fact that we are determining whether a multiracial democracy can exist,” says Heather McGhee, former president of the liberal research and advocacy group Demos.
The overall tension on majority rule is growing because the Republican dominance of smaller, predominantly White and heavily Christian states has allowed the party to benefit from elements of the Constitution that amplify the influence of small states – particularly the two-senator-per-state rule and the Electoral College.
From George Washington through Bill Clinton, only three presidents won the Electoral College while losing the presidential popular vote. But it’s now happened twice in the past five elections, each time to the benefit of Republicans; Republicans have controlled the White House 12 of the past 20 years despite winning the popular vote only once in the five presidential elections since 2000.
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If Trump wins a second term in November, it will almost certainly create another divergence, since he has a much better chance of squeezing out an Electoral College victory than of winning the popular vote, where polls consistently show him trailing Joe Biden by 7 percentage points or more.
The Republican strength in smaller states has produced a similar imbalance in the Senate. As I noted recently, if you assign half of each state’s population to each senator, “while the GOP has controlled the Senate for about 22 of the past 40 years, Republican senators have represented a majority of the nation’s population for only a single session over that period: from 1997 to 1998.”
Today the 47 Democratic senators represent almost 169 million people, while the 53 Republican senators represent about 158 million, according to calculations by Lee Drutman, a senior fellow at the think tank New America. The disparity is even greater when measured by votes: The senators in the current Democratic minority won 14 million more votes than those in the Republican majority, Molly Reynolds, a senior fellow in governance studies at the Brookings Institution, has calculated.
A recipe for conflict
These dynamics are imprinted into the Supreme Court’s DNA. Both of Trump’s Supreme Court nominees, Brett Kavanaugh and Neil Gorsuch, were confirmed by senators representing less than 45% of the population. John Roberts and Samuel Alito were nominated by Bush, who initially lost the popular vote (though he did win a narrow majority in 2004, before he made those nominations in his second term.) The senators who confirmed Thomas, nominated by President George H.W. Bush, also represented less than half the population.
The situation is even more combustible because both Trump and the Republican senators who will decide whether to confirm a justice before the next Congress overwhelmingly represent the parts of America least touched by the convulsive demographic, social and even economic changes remaking American life. Especially if a sixth Republican-appointed justice joins the bench, the conservative court majority could easily last until well after 2030 because the oldest GOP-appointed justices, Thomas and Alito, are only 72 and 70, respectively. That means a court chosen and confirmed by Republicans elected predominantly by White voters, a clear majority of them Christians, could write the rules for years while both of those groups are continually shrinking as a share of society.
That could be a recipe for explosive conflict through the coming decade between the priorities of rising generations that compose a growing majority of the population and a court chosen and confirmed by a Republican political coalition that no longer can regularly command majority support from voters. Those confrontations could unfold across a wide array of issues, with a conservative court rejecting or constraining legislation or executive branch actions popular with the emerging generations on questions ranging from climate change and racial equity to women’s rights, gay rights, access to voting – and perhaps most immediately, access to legal abortion.
Ben Wessel, executive director of NextGen America, a group that organizes young people for progressive causes, predicts that demands from younger generations to change the structure of the court will grow irresistible if a conservative majority repeatedly strikes down measures reflecting their concerns.
“I see a wave of young people being born into social movements who recognize that you have to take every institution in this country on and try to shape it in your image, whether it’s Congress or the White House or the Supreme Court or your local police force,” he says. “This is not a generation that says I will play by the rules and things will be OK. It’s a generation that says: I will rewrite the rules so they work for me.”
The demographic distance is profound between the young generations rising to prominence and the political coalition that has empowered Republicans to create, and now potentially cement, a conservative Supreme Court majority.
As demographer William Frey recently calculated, the diverse generations of Americans born after 1981 – millennials, Generation Z and the younger cohort behind them – now represent a majority of the nation’s population. Because many of those young people aren’t yet eligible to vote – and others don’t vote even though they are eligible – their political influence lags behind their presence in the population; but in 2020, millennials and Generation Z combined, for the first time, will equal baby boomers and older cohorts as a share of eligible voters, and in 2024 they are certain to exceed them as a proportion of actual voters, according to projections by the nonpartisan States of Change project.
Pressure to enlarge the court
These generations are dramatically changing the face of America. As Frey notes, young people of color make up about 45% of millennials, nearly 49% of Generation Z and represent a 51% majority of the younger generation behind them. Comparable change is evident on other fronts. Among adults younger than 30, only 29% identify as White Christians, well below the nation overall (around 43%) and only half the number among the nation’s seniors 65 or older, according to data from the nonpartisan Public Religion Research Institute. They are also the best-educated generations in American history.
Trump and the Republican-led Senate, however, were put in power almost entirely by the parts of the country most insulated from these changes – states with few immigrants, more White Christians and relatively fewer college graduates. Fully 26 of the 30 states Trump won rank among the 30 states with the smallest share of immigrants, according to census data; those same states elected 45 of the 53 Republican senators.
Likewise, 43 of the 53 Republican senators were elected by the 29 states in which White Christians, according to data from the Public Religion Research Institute, compose at least 47% of the population; those same 29 states accounted for 25 of the 30 states that Trump carried last time. The patterns are similar when ranking states by their share of college graduates. After this election, Republicans may hold none of the 24 Senate seats in the 12 states with the most such graduates.
In the past, this sort of divergence between the court and the country has occasionally proven explosive. Because justices serve for many years, as I’ve written, the court is always backward-looking in the sense that its balance of power is inexorably linked to the choices that voters made in presidential and Senate races years before. Some of the most incendiary moments in the court’s history have come when a court majority forged in an earlier era blocks the agenda of a party ascending in a later one.
In the 1850s, for instance, the new Republican Party was emerging as the nation’s dominant electoral force as the voice of voters in the industrializing North who opposed slavery’s expansion. But at that point, seven of the Supreme Court’s nine members had been appointed by earlier pro-Southern Democratic presidents who had dominated the previous era in American politics; that court, led by Chief Justice Roger Taney, sparked outrage among voters in the emerging majority when it repeatedly favored the interests of Southern slaveholding states, a pattern that peaked when the court’s Dred Scott decision in 1857 threatened to allow slavery in all of the territories.
Something similar recurred in the 1930s. At that point, seven of the nine justices had been appointed by Republican presidents, reflecting their dominance of national politics from 1896 through Franklin D. Roosevelt’s first election in 1932. That court invalidated a succession of Roosevelt measures that expanded the role of government to combat the Depression and reflected the priorities of his “New Deal coalition,” which would dominate American politics into the 1960s. That prompted Roosevelt’s highly controversial proposal in 1937 to add more justices to the court – or “pack the court.” While Congress didn’t approve Roosevelt’s plan, enough conservative justices shifted their views (or retired in the years ahead) to eliminate the court as an obstacle to his agenda.
If Democrats can’t stop Senate Majority Leader Mitch McConnell and Trump from confirming a Ginsburg replacement but they win control of the White House and the Senate in November, the party will almost certainly face the most pressure at any point since 1937 to seriously consider enlarging the court.
“If Trump jams through a nominee to replace Ginsburg, there will be a lot of momentum among Democrats to do something like add a seat,” predicts Michael Waldman, president of the Brennan Center for Justice at New York University. “I think that a lot of Democrats recognize adding seats to the court is not something they want to talk about or do; but if Republicans do this, it sort of rips the mask off, and action could lead to reaction.”
Frustration is building
A court chosen by the parts of America least affected by demographic change that writes the rules for the most demographically diverse population in the nation’s history is only one measure of the strains emerging between the enduring structures of American democracy and the rapidly changing nature of its population. There’s a strong racial dimension to this tension, because the elements of the system that benefit smaller and more racially homogenous states are one important reason why Republicans have been able to maintain so much power in Washington, even though they still rely on Whites for about 90% of their votes in a society that is now about 40% non-White and heading toward majority minority status sometime around 2045.
Critics like McGhee see in the Republican actions for at least the past decade – from passing multiple state laws that make it tougher to vote to Trump’s repeated attempts to tilt the decennial census toward GOP advantage to McConnell’s refusal to consider President Barack Obama’s Supreme Court nominee in 2016 and this drive for a last-minute court appointment – a concerted effort to maintain power even if they can’t attract majority support in a society that’s demographically evolving away from them.
For conservatives, “this is absolutely the core question: How do you preserve White male rule when it’s incompatible with democracy?” says McGhee, author of the upcoming book “The Sum of Us,” which examines the costs of racism to American society.
Locking in a conservative Supreme Court majority that could last at least another 15 years – perhaps even in defiance of an intervening election in a little over six weeks that gives Democrats unified control of government – would provide Republicans enormous leverage on the direction of national life even if demographic change sentences it to minority status in most elections over the coming decade.
But if Democrats can build a sustainable political majority from the growing groups that now lean toward them – younger generations, people of color and college-educated Whites, all of them centered in major metropolitan areas – it seems unlikely those groups will quiescently accept existing rules that allow a preponderantly White, Christian and non-urban minority to block their agenda.
If Democrats win unified control of government in November, the pressure to reconsider those rules would likely begin immediately with demands to end the Senate filibuster, which empowers small states; ending the filibuster in turn could position Democrats to overhaul voting laws, pass a new Voting Rights Act, add the District of Columbia and possibly Puerto Rico as states, and even potentially enlarge the Supreme Court (especially if the court strikes down some of those other initiatives).
All of those fights would be enormously controversial, yet they might be only the overture for the sustained struggle ahead between a Republican coalition determined to maintain power and a Democratic coalition increasingly frustrated that it has not obtained more power despite often winning more votes in recent years.
This is not the first time the nation has been riven by division between what America is becoming and what it has been. In the 1850s, America faced a similar confrontation – an “irrepressible conflict” – between the national majority coalescing in the North that wanted to curtail slavery and Southern interests that had successfully protected slavery for decades, even though the South made up a steadily shrinking minority of the nation’s population.
The 2020s might see the most prolonged conflict since then between a rising majority and an entrenched minority that is trying to fortify its power by any means necessary against the demographic waves that are mounting against it.