It's Dangerous When the Minority Party Rules Everyone Else

By Seth Masket, The Washington Post

27 September 20

Republicans get fewer votes, but they’re about to lock down the Supreme Court.

efore the end of the year, Amy Coney Barett will probably be sworn in as a Supreme Court justice — and she may serve for decades. She will have been appointed by an impeached president who lost the popular vote in 2016 and may well continue in office after losing it again in 2020. She will almost certainly be approved by senators representing less than 45 percent of the American population.

Our nation is moving even deeper into minority rule: The House aside, the U.S. government is controlled by the less popular party in a polarized two-party system. We may call this unfair, but that would trivialize the problem. It is entirely permissible under the Constitution, and it is dangerous. When the majority of a nation’s citizens can’t get its candidates elected or its preferred policies passed, the government’s legitimacy is compromised and destabilizing pressure begins to build.

The tendency toward minority rule in the United States, present since the founding, has become more acute. That’s certainly true in the Senate: California has 68 times as many residents that Wyoming has, but the same number of senators. The disparity in population size between the biggest and smallest states is far greater than anything the founders knew.

Residents of rural, sparsely populated states are vastly overrepresented in the Senate. And because the electoral college is based on the number of federal representatives, this rural-state overrepresentation plays out in the selection of presidents, as well. Former vice president Joe Biden could well win the popular vote by three or four percentage points, or even more, this fall and still not be elected.

The House, the most democratic institution in the three branches of government, has no role in selecting Supreme Court justices. That’s the purview of the president and the Senate, which means that the composition of the high court has a minoritarian, rural-state bias built into it as well. (According to a Washington Post-ABC News Poll, only 38 percent of Americans say the replacement for Justice Ruth Bader Ginsburg should be nominated by Trump and confirmed by the current Senate; 57 percent say the nomination should be left to the winner of the presidential election, and put to a Senate vote next year.) Should a Trump nominee be confirmed, the Supreme Court will consist of six justices appointed by Republicans, even though the party has won the popular presidential vote only once in the past seven elections (George W. Bush, in 2004).

On its own, a rural state bias in representation is potentially problematic but not invidious. Plenty of issues in rural states should receive national attention, of course. But the problems mount when one party dominates the rural areas and the other dominates the urban ones, which is where we stand today. Republicans essentially get bonus points: They can be the less popular party and still get to govern.

Political science research reveals that ideologically extreme parties tend to do worse in elections than more moderate parties, and that parties that find themselves in the minority — and out of power — recognize the problem and recalibrate toward the center. But because of their built-in systemic advantage, Republicans face no such check. They have come to prefer winning narrowly with committed partisans than winning broadly with unreliable moderates. Such a strategy helped bring the nation President Trump.

This presents a further problem: How are Democrats to respond to an increasingly extreme, Trumpist Republican Party? Democratic leaders, when pressed with examples of Trump’s latest malfeasance, typically respond with, in effect, a one-word answer: “Vote.” It’s good advice, of course. But what if it’s not enough? What if Democrats continue to bring more people to the polls than Republicans but Republicans maintain control of most of government?

Democrats largely responded to the presidential elections in 2000 and 2016 — in which they won the popular vote — by conceding that rules are rules, and sometimes the more popular candidate just doesn’t get to be president. But how many such defeats will they take in stride? There may be a tipping point at which the situation becomes intolerable.

Since George Floyd’s death, in police custody, at the end of May, enormous numbers of protesters (many, although hardly all, Black) have taken to the streets to demand change. They have done so in large part because, with considerable justification, they don’t think that working within the system — voting regularly, calling their elected officials, showing up at city council meetings, etc. — is producing the change they need. Black people are still being killed by police officers who face few or no consequences. Protest and unrest are a predictable outcome when a population thinks the political system is completely unresponsive to its needs.

Imagine that dynamic multiplied many times over. When well more than half the country votes for one result — over and over — and continues to get another, the situation is unsustainable. This is how a government loses its legitimacy. Governments worldwide facing legitimacy crises have been faced with struggling to govern, as we saw in the Philippines under Ferdinand Marcos, or brutally cracking down on protests, as we saw in Egypt under Hosni Mubarak and continue to see under Abdel Fatah al-Sissi. It’s an ugly situation, and the United States is not immune.

Reform is possible — in theory. The Constitution can be amended to substantially change the electoral college procedure, as happened in 1804 when the 12th Amendment was ratified, allowing separate votes for president and vice president. But as long as one party considers the current system advantageous, it’s hard to imagine such an amendment attracting the supermajority support needed to pass. Other reforms — such as an interstate compact that would make presidential elections subject to the popular vote — are possible without an amendment.

And that reform, too, faces the brutal logic of minority rule: The party in power will fight desperately to keep its entrenched advantage (and deepen it, if possible). Almost by definition, the longer the anti-democratic spiral continues, the harder it becomes to reverse. And it’s not a counterargument to say that the advantages the Republicans have today are “constitutional.” In fact, that’s the heart of the problem.

Why Amy Coney Barrett on the Supreme Court Would Be a Climate Disaster

By Shannon Osaka, Grist

27 September 20

hen Supreme Court Justice Ruth Bader Ginsburg passed away a week ago, commentators were quick to lament the implications of her empty Supreme Court seat for abortion rights and gender equality. But there’s another concern: our overheating planet.

On Saturday, Trump is expected to nominate Seventh Circuit Judge Amy Coney Barrett for Ginsburg’s old spot. And some worry that a 6-3 conservative supermajority might mean that any policy to protect our planet from climate change will be struck down — before it even gets started.

“Environmentalists are facing a real minefield ahead,” said Robert Percival, director of the environmental law program at the University of Maryland. “I have just been so depressed.”

First, some facts: The Supreme Court can’t just go around striking down legislation and a president’s executive orders left and right, but the court can make it much more difficult to implement laws or limit greenhouse gas emissions — by interpreting law narrowly, refusing to defer to agencies like the Environmental Protection Agency, and otherwise restricting presidential and Congressional power. And now, with the potential for more conservative justices on the court than anytime in recent history, the odds that government actions survive Supreme Court scrutiny appear lower than ever.

Barrett is a staunch conservative and and popular on the religious right. Not much is known about her environmental record, but if she follows in the footsteps of Trump’s earlier appointments, she would join the conservative wing of the court in undermining existing environmental laws and blocking others.

Here are two ways a super-conservative court with Barrett could sideline climate progress. And one potential path to success.

No standing in court

One of the most important issues in environmental law is whether groups — cities, states, and even young children — have the right to sue the government to take action on climate change. To have “standing” to sue, plaintiffs have to be able to prove a) that they have suffered some sort of harm; b) that injury is traceable to the action (or inaction) of the defendant; and c) that the result of the lawsuit would somehow rectify the damage done.

That poses a few problems for taking on the giant, global problem of climate change. A court tilted so far to the right might say that since climate change affects everyone, and global CO2 emissions are hard to track and trace to particular defendants, a single state or city doesn’t have standing to sue. Moreover, since no single action can truly “solve” climate change, conservative justices could argue that any lawsuit wouldn’t rectify the harm caused — again, demolishing plaintiffs’ standing.

“I call it the Goldilocks theory of standing,” said Percival. “If the harms aren’t big enough, then you can’t sue; but if the harms are so big, then you can’t sue because it affects everyone!”

Some justices on the court, like John Roberts and Clarence Thomas, are already skeptical of whether groups have the right to sue the government over climate change. In Massachusetts v. EPA, a 2007 Supreme Court case in which 12 states and several cities called on the agency to regulate greenhouse gas emissions, a 5-4 majority found that the plaintiffs did have standing — but only one of the justices in that majority is still serving on the court. Chief Justice John Roberts, currently the Court’s swing vote, wrote a scathing dissent, arguing that global warming was “harmful to humanity at large” and that EPA regulation of greenhouse gases was unlikely to make a dent in the problem.

If Barrett and other conservative justices follow in Roberts’ footsteps, the outcome could be catastrophic. “Litigation brought by states and by environmental groups is very important — for instance, in holding Trump’s feet to the fire,” said Michael Gerrard, a professor of law at Columbia University. If these groups don’t have the right to sue, then a hostile White House could gut more environmental laws and continue to ignore climate change — with nothing standing in its way.

Blocking executive action

Back in 2014, foiled by Congress in his attempts to pass a sweeping climate change law, President Barack Obama turned to the EPA. The agency proposed the Clean Power Plan, which would have cut greenhouse gas emissions from the country’s power plants by 30 percent in 15 years.

It should have worked: The EPA’s right to regulate greenhouse gas emissions had been confirmed in Massachusetts v. EPA. But the Clean Power Plan got held up in the courts, as over two dozen (mostly red) states sued to block it. The Supreme Court, in a highly unusual move, supported those states — halting the enforcement of the plan while the lawsuit worked its way through the courts, and effectively hamstringing the regulation until the end of President Obama’s term. (President Trump later replaced the rule entirely.)

A super-conservative court with Barrett on board would likely give any executive action to take on climate change similar treatment, ruling that large-scale regulations on greenhouse gas emissions is a step too far under the EPA’s authority. That could pose a huge problem for the Democrat’s presidential nominee, Joe Biden, who has promised to make the climate a centerpiece of his term if elected. Biden has pledged to get America’s electricity grid running purely on clean energy by 2035 — basically triple the ambition of Obama’s plan. If Democrats don’t take control of the Senate (a toss-up at the moment), he would have to try to muscle regulation through the EPA. And that probably wouldn’t end well.

It’s up to Congress

There’s at least one path to sweeping, Green New Deal-esque climate action. The best-case scenario for climate action starts with Congress actually passing a bill, Gerrard said. “Most of the litigation about climate change law that gets to the Supreme Court is on interpreting ambiguous statutes,” he said. But if Congress and the president adopt climate legislation — and leave little room for interpretation — that won’t leave much space for the Supreme Court to strike it down.

Even that comes with caveats. According to Percival there’s a growing movement among conservative justices for expanding what is known as the “non-delegation doctrine,” in which laws can be struck down if they seem to hand too much power to executive agencies. That means that if, say, Congress passes a law regulating greenhouse gas emissions — but leaves it up to the EPA to parse out some of the details — the court could quash it. “You could see the court basically striking down some major environmental statutes,” Percival said.

So if the Biden administration gets a clean energy law through Congress, it would have to be extremely detailed and avoid leaving too much for agencies to decide; otherwise, it likely wouldn’t survive a challenge that winds up in front of the Supreme Court.

Gerrard is still hopeful that, given the right conditions, legislation that passes the Senate and the House could hold up even under superconservative court scrutiny. “If the laws are clear and unambiguous and specific enough,” he said, “Congress ties the hands of the courts.”