When at Times the Mob Is Swayed

by Burt Neuborne

  In many Republican-controlled states, like North Carolina, the boundaries of congressional districts have been carefully drawn so that reliably Republican voters are strategically spread over numerous districts, with just enough Republican votes in each district (usually 55 percent or so) for Republican candidates to be the overwhelmingly likely winners. In such a Republican-leaning district, every Republican vote is important. Democratic voters in the same state are frequently packed into overwhelmingly Democratic urban districts (as much as 80 percent Democratic), where the Democratic candidate predictably wins by an overwhelming majority, but where many of the Democratic votes are “wasted” because they are not needed to win. It’s called “packing and cracking.”

  Given the current Republican gerrymandered district boundaries, in order for the Democratic Party to elect 50 percent of the House of Representatives, the Democrats must garner between 55 and 60 percent of the total national congressional vote. The Founders would wince. As the 2018 congressional elections demonstrate, it’s possible for the Democrats to overcome the built-in headwinds and win a majority in the House of Representatives, but it’s also important to note how strong the gerrymandering headwinds can be—in North Carolina, for example, in spite of winning statewide, the Democrats couldn’t flip a single Republican district, leaving the Republican Party with ten of thirteen congressional seats in a state that voted Democratic.

  Worse, in recent years, five Republican justices on the Supreme Court have virtually invited cynical politicians to remain in power by making it as hard as possible for many poor people (often of color) to vote at all. That’s where phony voter ID requirements, felon disenfranchisement, and voter registration purge statutes come from. Under the current Supreme Court, the representational breakdown in the House may even get worse. Stay tuned for: (1) Supreme Court acceptance of even more ruthless partisan gerrymanders; (2) Supreme Court approval of an avalanche of phony anti-fraud devices, such as voter ID requirements and purge statutes; and (3) Supreme Court acceptance of efforts by Republican-controlled states to apportion House seats on the basis of citizenship instead of the historical basis of residence, further diminishing the representation of urban America, where large numbers of noncitizens reside (that’s why Republicans are trying to add a citizenship question to the 2020 census).

  Stay tuned, as well, for a ferocious rearguard defense of felon disenfranchisement in Florida, where for years it has denied the ballot to 25 percent of the black male electorate. The predictably racially discriminatory impact of felon disenfranchisement is what has enabled predominantly rural white Republican voters to retain control of a rapidly urbanizing state. It almost certainly decided the 2000 presidential election.

  In 2018, more than 64 percent of Florida’s voters overwhelmingly rejected felon disenfranchisement, but there is, as yet, no plan for how to restore the many thousands of historically disenfranchised voters to the rolls. Republican election officials are already making noises about how important it is to slow down the implementation of the referendum. And it’s only a matter of time until Republican politicians in Florida and elsewhere try to condition the restoration of voting rights to convicted felons on payments of court fees beyond the reach of poor voters.

  Sadly, instead of being a showcase for the Founders’ self-checking internal braking system, the current House of Representative has been turned into a partisan swamp. When you add the representational distortions in the Senate and the Electoral College to the gerrymandered House of Representatives, it’s as though the Constitution’s great Preamble has been hijacked to read: We, a rural minority of the people, do hereby ordain and establish this blueprint for governing the urban majority.

  Face it: as far as the weak and poor are concerned, there are no longer any reliable self-checking internal brakes on the Founders’ train. If anything, today’s train is geared to run over the poor folks who live in urban America.

  THE EXTERNAL BRAKES

  The Founders didn’t rely solely on internal brakes. Somewhat reluctantly, they introduced a backup external braking system, empowering independent, politically neutral judges to slow or stop a runaway democratic train. The good news is that the external brakes still work much of the time, especially when personal autonomy—the right to be left alone—is at stake. The bad news is that the external braking mechanism is so damn complex, with so many moving parts, that it has ceased to be reliable in many settings, especially when the right of the weak to equal treatment is at stake.

  The Supreme Court is not shy about touting the Court’s constitutional brakes as a state-of-the-art, fail-safe system capable of stopping even a runaway populist train traveling at breakneck speed. According to the warranty printed on the back of the train ticket, riding on the American Democracy Express is a relatively risk-free proposition because “when at times the mob is swayed / to carry praise or blame too far,” a politically neutral, life-tenured Supreme Court, sworn to enforce constitutional checks on the tyranny of the majority, can be trusted to slow or stop the train before it causes too much damage. The Supreme Court even promises to perform prophylactic maintenance on the braking system by stopping government officials—especially officials of the national government—from acquiring dangerous unilateral power over the train’s throttle.

  Like too many warranties these days, the Supreme Court’s earnest assurances that it is standing by to apply politically neutral brakes on a runaway electoral majority by enforcing the constitutional text isn’t entirely accurate. In fact, it comes close to being downright false and misleading. The warranty doesn’t tell you that the precise meaning of the most important rights-bearing provisions of the Constitution—including the First Amendment’s forty-five-word protection of religion, speech, and press; and the Fourteenth Amendment’s guarantee of the “equal protection of the laws”—is almost always up for grabs.

  That’s nothing new, of course. The meaning of the Constitution’s text has always been deeply contested. What is new is the utter breakdown of the internal electoral brakes and the emergence of an immensely powerful president who expresses utter contempt for the very ideas of toleration and mutual respect that undergird our constitutional republic.

  The Supreme Court’s warranty doesn’t tell you that the justices who actually operate the brakes are more divided than ever these days about how to interpret the Constitution’s ambiguous text. In the many important Supreme Court cases where the constitutional text is ambiguous, binding Supreme Court precedent is either absent or confusing, and/or prime constitutional values such as autonomy (the right to be left alone) and equality (the right to be treated the same) point in different directions, Republican justices have, over the years, tended to read the ambiguous constitutional text to favor the right of individuals to be left alone, repeatedly protecting the powerful from a host of government regulations aimed at protecting the vulnerable. Democratic Supreme Court justices have tended to read the same ambiguous constitutional text to advance the equality-based interests of the weak, often at the expense of the autonomy of the strong. Despite the Supreme Court’s sincere promise of political neutrality, Republican justices are more likely to read the Constitution from the top down, insulating big business, rich campaign spenders, political bosses, dominant racial groups, dominant social groups, insiders, police, the military, and men from government regulations designed to rein in their power. Democratic Supreme Court justices more often read the same text from the bottom up to protect the equality interests of racial and ethnic minorities, gays, women, political and religious dissenters, the poor, immigrants, people seeking the vote, outsiders, consumers, and targets of government suppression.

  Don’t get me wrong. I am not asserting that Supreme Court justices consciously advance a partisan agenda, although sometimes, as in Bush v. Gore (the 5–4 case where five Republican justices gave George W. Bush the presidency in 2000 despite his loss of the popular vote and quite possibly his loss of the crucial Florida vote), it looks like that’s
what’s happening. Nor do I believe that Supreme Court justices consciously align themselves with the strong or the weak. In fact, I believe that almost all the justices who have served in the modern era would pass lie-detector tests about their nonpolitical commitment to “equal justice under law”—the aspirational motto carved on the façade of the Supreme Court building. But the Supreme Court’s braking mechanism is so complex, so dotted with branching points requiring the exercise of discretion and choice, that in a close case, I believe that a justice’s deeply held values will inevitably affect her views about the relative persuasiveness of the lawyers’ arguments.

  The truth is that we have two competing Constitutions—one red, one blue—that blink on and off like neon signs depending on which political party controls the Supreme Court. Partisan control of the Supreme Court has flipped only twice since the Civil War: Republicans controlled the Court from 1865 to 1937; Democrats controlled it from 1937 to 1972; Republicans regained control in 1972 and have held it ever since, most recently by unconstitutionally refusing even to consider Merrick Garland, President Obama’s moderate Democratic nominee to replace Antonin Scalia. That’s really all you need to know to understand the zigs and zags of American constitutional jurisprudence over the past 150 years. Not in every case, every time. But enough cases and enough times to establish an unmistakable pattern.

  So, before you put too much trust in the external constitutional brakes on the Democracy Express, it’s a good idea to check on whether the justices operating those brakes are dressed in red or blue. As the legal fate of Donald Trump’s successful effort to ban millions of Muslims from traveling to the United States demonstrates, knowing which political party controls the Supreme Court will tell you more about whether, when, and for whom the runaway train will be stopped than the constitutional text, the constitutional lawbooks, and all the history tomes in your library.

  Most importantly, whatever the Supreme Court’s echo chamber says, it’s crucial to remember that, over time, it’s the people—the passengers on the train—who have the power to decide whether Republican or Democratic justices operate the brakes. I believe that each presidential election and every Senate election operate, in part, as rolling constitutional conventions where the people have a chance to choose between a red Constitution enabling the strong and a blue Constitution protecting the weak. That’s why it was so galling to watch a minority president—who lost the presidential election by more than three million votes, who may well hold office only because of his contempt for campaign finance laws and his dalliance with Russian intelligence services, and who represents a political party that has lost the popular vote in six of the last seven national elections—nominate two swing Supreme Court justices likely to cement the red Constitution into place for a generation, who were promptly confirmed by a majority of the Senate representing fewer than 40 percent of the people.

  The Supreme Court’s vaunted brake warranty also doesn’t tell you that it may not apply to runaway populist trains traveling at dangerously high speeds. Despite the Supreme Court’s lofty rhetoric, the justices have rarely acted in the teeth of a broad national consensus. Overwhelming patriotic support for World War I translated into Supreme Court decisions affirming criminal convictions and draconian prison sentences for opponents of the war whose only crime was to speak out against it. In the 1920s, overwhelming hostility to communism and other left-wing movements translated into Supreme Court decisions affirming the convictions of so-called “criminal anarchists,” guilty of nothing more than espousing radical political views. In the 1930s, after Franklin D. Roosevelt won the 1936 presidential election in a landslide, carrying every state except Maine and Vermont, the Supreme Court promptly installed an entirely new braking mechanism in economic regulation cases that was much more to FDR’s liking, abandoning many of its earlier precedents along the way. In the 1940s, a lethal combination of racism and jingoistic World War II patriotic fervor stampeded the Democratic Supreme Court into a 6–3 decision upholding the internment of 120,000 Japanese Americans residing on the West Coast. In the 1950s, a spate of national hysteria fueled by fear of communism translated into Supreme Court affirmances of the conviction and imprisonment of the leadership of the American Communist Party for the crime of being the leadership of the American Communist Party. In the 1960s, faced with initial public support for the war in Vietnam, the Supreme Court upheld long prison sentences for draft card burners. The Warren Court couldn’t summon up a single vote for the First Amendment, even though the government conceded that the only reason for enacting a ban on draft card burning was to suppress an effective form of protest. In fact, throughout the decade-long war in Vietnam, the justices never summoned up the will to review the legality of an unconstitutional presidential war in which sixty thousand Americans and upward of two million Asians lost their lives.

  In my experience, the Supreme Court is best at enforcing consensus national political and social norms against local outposts of resistance that are out of step with the rest of the nation. It’s no coincidence that the Court didn’t end state-imposed racial segregation until 1954, after the concept had already been rejected by more than three-quarters of the states. And it wasn’t until free speech became a source of national pride in the 1960s that the Court got around to building powerful, maybe too powerful, First Amendment doctrine. The history of the Supreme Court’s women’s rights jurisprudence looks more like a barometer of national public opinion than a principled exercise in law enforcement. Likewise, the Court’s welcome protection of gay rights reflects a dramatic generational change in the nation’s response to sexual orientation.

  Don’t despair, though. The Supreme Court’s warranty is neither worthless nor fraudulent. It’s just misleadingly broad. In the relatively rare settings where the constitutional text is clear; the much more numerous settings where well-reasoned judicial precedent commands the justices’ professional respect; and the occasional settings where the prime constitutional values of autonomy and equality point in the same direction, as they often do in cases involving free speech, religious freedom, the ban on racial apartheid, women’s equality, and the protection of gay marriage, I am confident that the Supreme Court will continue to provide a reliable, nonpolitical check on majoritarian excess. In those important settings the brakes will work as advertised, at least in the foreseeable future. So please don’t kill all the lawyers—yet.

  If, however, our forty-fifth president, craven Republican legislators, and a tame Supreme Court combine to impose the will of the strong on the backs of the weak, only sustained political involvement on behalf of traditional American values can put the democratic train back on track. It will be a tough job, because, as we’ve seen, the democratic deck is stacked against us. But it is far from impossible if only we use the available tools.

  Somehow, we must find the will to act as a re-founding generation. After all, we’re not being asked to live up to past generations who risked their lives by fighting a Revolutionary War to create a nation, waging a bloody Civil War to end slavery, and enduring fifty years of hot and cold war to protect the nation against Hitler and Stalin.

  All we have to do is fix the damn brakes.

  2

  Why the Sudden Concern About Fixing the Brakes?

  Most experienced lawyers know that the outcome of hard constitutional cases often turns on who the judge is. I’ve litigated hundreds of constitutional cases. The defining event in many of them—the tough ones where the constitutional text could be read more than one way, the precedents were murky or nonexistent, and important values such as autonomy and equality pulled in different directions—was the moment when I learned the name of the judge.

  Once I knew the judge, I had a pretty good idea of the case’s outcome. Not every time. Not every judge. But enough times and enough judges to convince me that a judge’s honest assessment of the persuasive power of closely balanced legal arguments is shaped as much by her values as by the inherently persuasive power of the le
gal arguments.

  I never publicly admitted it. No active constitutional litigator dares to blow that whistle if he wants to keep on litigating. Behaving as if the judge is a politically neutral arbiter in search of a single correct legal answer is the price of being taken seriously in the courtroom. So I kept my mouth shut and labored mightily over my legal arguments as if the outcome of every case depended on each turn of phrase and each asserted precedent.

  Sometimes it did. Often, raw material for persuasive legal arguments existed that guided a principled judge to a clearly preferable legal result, rendering the judge’s values irrelevant. Occasionally, I was surprised at the outcome, when principled judges ruled counter to their values. Most of the time, though, the result was predictable and, tolerably often, admirable. The burst of egalitarian precedents that emerged from the Democratic Supreme Court, especially during the years (1954–68) when Earl Warren, a nominal Republican, was chief justice, has salted the legal system with plenty of powerful legal precedents for protecting the weak. And a steady stream of autonomy-protective precedents decided under both Republican and Democratic courts was always available to keep the government at bay.

  But then there was Donald Trump, the only president in recent American history to openly despise the twin ideals—individual dignity and fundamental equality—upon which the contemporary United States is built. When you confront the reality of a president like Trump, the state of both sets of brakes—internal and external—become hugely important because Donald Trump’s political train runs on the most potent and dangerous fuel of all: a steady diet of fear, greed, loathing, lies, and envy. It’s a toxic mixture that has destroyed democracies before, and can do so again.