The Supreme Court and Democracy


This year’s voting will be more exciting than usual in Maine. The Democrats are eager to regain control of the state government and resume its pace of growth. Republicans are hoping for an extension of the LePage reforms. The Maine Peoples Alliance, having failed in an all-out effort to win Lewiston’s mayoral office, is hoping to create a Referendum Party by drawing from out-of-state funding to pass boob-bait like Question 1.

These issues will attract most of the state’s political energy, but national factors and long-term consequences make the Supreme Court of the United States United States (SCOTUS) nominations far more important. President Trump’s inability to stop talking and tweeting long enough to think has diverted attention to Vladimir Putin for a while, but the Left-Lurchers will soon come back to the Kavanaugh nomination in full force. Even if they keep Trump to a single term, a conservative majority on the SCOTUS will influence our country long after his remains are laid to rest. The Left has repeatedly relied on progressive courts to achieve policy goals they cannot achieve through elections and legislation, and the fear of losing that option makes them really, really mad.

The New Yorker’s John Cassidy explained this in a June 11, essay “Why It’s Right to Be Mad about Kavanaugh and the Supreme Court.” According to his historical review “the Republican Party has carefully exploited the biases and shortcomings of the political system.” If the Republicans succeed in installing their latest nominee, it will be, as Cassidy tells us, “the latest act in an anti-democratic (small “d”) heist. Democrats, Independents, and anybody else who cares about the functioning of American democracy have good reason to be sore.”

Before descending more deeply into Cassidy’s profundities, let’s acknowledge that the Supreme Court, far from being a Democratic institution, is a tight little oligarchy. The defunct Soviet Politburo was a little more inclusive, but not by much. One person, only one, has the power to nominate a person for the SCOTUS bench. Eliminate the filibuster it requires no more than fifty-one persons to approve this nomination. The list of persons considered for nomination will not exceed one hundred names (if that). And that list is developed by surveying a thousand judges, professors, distinguished lawyers, and influential politicians. Argue for two thousand, if you wish, or five thousand. It remains an oligarchical institution, not a democratic institution.

Cassidy would realize this if he thought about it. But he is too anxious to demonstrate that conservatives are not entitled to appoint conservative justices, much less a conservative majority. He writes to expose “an outrageous power grab by a radicalized political party, its wealthy backers, and a rogue President.”

John Roberts and Samuel Alito might not be sitting on the court today if the SCOTUS, under Chief Justice William Rehnquist, had not halted the Florida recount, allowing the election of a Republican president who lost the popular vote. If, in 2016, Mitch McConnell, the Senate Majority Leader, had allowed filibusters on the nomination of Merrick Garland, Gorsuch might not be a Justice. And by nullifying Hillary Clinton’s almost three-million-ballot margin of victory in the popular vote, the Electoral College threatens us with a Justice Kavanaugh.

What’s worse, the Republican Party has deliberately used the U.S. Constitution to control the U.S. Constitution. No kidding! This is Cassidy’s argument. The Republican Party has also relied on the U.S. Senate, where the 1.7 million residents of Idaho receive the same number of representatives as the 39.5 million residents of California.

Clinching his argument, Cassidy concluded that “This isn’t how democracies are supposed to work.” His conclusion is not false. This is not how democracies are supposed to work. This is how the Constitution is supposed to work.


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