Joseph Fishkin —
There’s a lot for liberals to despair about these days and the Kavanaugh appointment sharpened several sources of that despair. After such an intensely partisan fight about the Court, and especially after the remarkable, norm-shattering partisan performance of the Justice himself at his final confirmation hearing, some of the liberal worry is inevitably focused on questions about the Supreme Court. Should “we” favor more judicial restraint, more “taking the constitution away from the courts,” more strategies of challenging the Court through politics? These are important questions; there’s much more to say about them. (Indeed I will say more about them, with my coauthor Willy Forbath, as they relate to the project of our book.) But these questions may not be the most urgent ones right now, with an election weeks away. The most urgent ones, I think, have to do with the specter of the possibility that an emerging American majority—racially diverse, young, and well to the left of the current government on both economic and social issues—may face the prospect of living for a considerable period, perhaps much of our lives, under minority rule.
The story is familiar in its outlines so I’ll be brief. Consider the contrast between 2000 and 2016. In both presidential elections, the popular vote winner lost. In 2000 it was basically a fluke. Plausible scenarios were floated under which Gore might have picked up more electoral college votes while Bush won more voters’ votes. In 2016, it was no fluke. Where President Bush had lost the popular vote by only half a percentage point, President Trump lost by more than 2%, approximately three million votes. There is no way to know for certain what would have happened in an election by popular vote, but it is clear enough which way the electoral college now cuts: I don’t expect to see a lot of probable scenarios floated in the near future in which Trump wins the popular vote in 2020 but fails to translate this into electoral votes. It’s mathematically possible, but not remotely probable. Meanwhile, in the House of Representatives, the midterm election next month looks likely to result in a Democratic majority. But this graph says it all: if Democrats win more votes than Republicans in House elections, but only 5% more (a solid but modest margin), that’s most likely not enough to win a majority of the seats. As the same graph nicely illustrates, there is essentially no possible scenario in which the reverse is true: there is no way for Republicans to win more votes and yet fail to translate this into seats. The Senate is of course the most problematic of all. As several commentators have noted, the fifty Senators who just voted to confirm Kavanaugh collectively represent about 44% of the nation’s population.
Wonks have long noted that it is theoretically possible to build a Senate majority with disturbingly small fractions of the population (just add up enough small states to get to fifty Senators). Over time, as states like California have grown, and states like Wyoming haven’t, the theoretical minimum fraction has shrunk: it’s now theoretically possible for about 17% of the population to elect a Senate majority, an all-time low. But that’s a paper exercise. Our political system has never previously made this wonky nightmare real. Sure, Republicans have always had their Dakotas and whatnot, but in the big post-1964 realignment, Democrats ultimately took New England. More recently, however, the skew has aligned more with the partisan axis. Reddening places like Iowa get their own Senators, while equally populous places that are getting bluer, like Orange County, don’t.
More importantly, during the long period of relatively low polarization that has just recently come to an end, across much of the United States there were often enough voters with loose partisan attachments to vote in a Senator from a different party, if only as a means of engaging in what political scientists called “retrospective voting,” or voting the bums out. Today that world is gone. Partisan polarization in the electorate is strong enough that the vast majority of Senators are in safe seats, not just this year but in 2020 too. They have nothing to fear but their primaries. And most of them represent constituents who are older, whiter, and more conservative than the nation as a whole.
This means there is significant long-term potential for minority rule. It is easy to frame this problem in Republican and Democratic terms but I think it runs deeper. Party coalitions can change. The core problem is that an older, whiter, more conservative minority in America has a lock on more political power than the younger, more racially diverse majority that is emerging—by virtue of a tangled combination of mechanisms, both constitutional and subconstitutional. Sandy Levinson has long been sounding the alarm about the constitutional mechanisms, beginning with the structure of the U.S. Senate. He is right. But many of the mechanisms are subconstitutional: the geographic concentration of younger and more racially diverse voters, the blatant and deliberate partisan and racial gerrymandering (which is not close to symmetrical in its effects), and finally, the very disturbing trend toward partisan- and racially-motivated voter suppression on the contemporary right. New tactics on the horizon aim to augment these advantages: the shameful shenanigans to skew the Census count, and potential efforts by states and localities in 2021 to redistrict on grounds other than population in an effort to further shift political power away from populations with more nonvoters such as children and immigrants in their midst. Right-wing efforts to take some sort of wild stab at birthright citizenship now seem likely, although also likely to fail. The more the conservative coalition understands its power as being threatened by demographic change, the stronger the incentive to pursue strategies of entrenchment. (And note that I haven’t even mentioned campaign finance.)
The combined effect of all this is that it is very plausible to imagine a United States ruled, for a considerable period of time, by an older, largely white minority, backed by wealthy conservative donors. I don’t know how low a ruling minority’s number can go, but when I look at President Trump’s approval rating, often hovering around 40%, that number lingers in my mind. It actually strikes me as a not-implausible figure for the size of a potential governing minority. 40% of America really could run the place. If it’s the right 40%.
The good and bad news is: we have been here before. In the 1950s and 60s, before the reapportionment revolution, much of the electoral system, especially at the state level, was even more profoundly antimajoritarian than the system we have today. In large swaths of the country, state legislatures were radically skewed toward more rural areas, which often had many times the political power of urban areas despite having fewer people. In the South, it was worse: the rural areas had large disenfranchised black populations, and so the people with the most extra political power were the same white people who were the most hell-bent on maintaining black disenfranchisement and white rule. The institution that came to America’s rescue was, of course, the Supreme Court. In full Elysian representation-reinforcing splendor, the Court broke up the rural lock on political power, and in doing so, cracked the hard shell of the political juggernaut of white supremacy. In a dark hour, it took the least majoritarian branch to save us from our countermajoritarian electoral system. The “democratic” branches were consistently producing minority rule.
This history raises a tantalizing hypothetical. What if the Court had just left malapportionment well enough alone? It’s not impossible to imagine. Suppose a fluke of history had installed a Court full of Frankfurters and Harlans, without any Brennans or Douglases. Suppose the Court then declined to intervene, leaving the political system to somehow save itself. From there the crystal ball gets very murky very quickly. Would the civil rights movement in the South have turned to mass protests demanding representation? Would Congress, through something like the Voting Rights Act, eventually have done the work of the reapportionment cases? There are various alternative histories we could dream up along these lines. But it is also entirely possible that we might never have righted the ship of rural white minority rule.
This time, no court is coming to our rescue. Not only is Justice Brennan’s court gone, so is the center-right O’Connor/Kennedy Court. I think we can be confident that John Roberts and Brett Kavanaugh will not build any new jurisprudential machine to stop the partisan electoral shenanigans that now do so much to build and maintain the political coalition that put them both on the Court—the one to which Kavanaugh so forcefully and explicitly declared his partisan allegiance at his final Senate hearing. The best we can hope for from this Court in this field is that it not do too much.
So I expect that our politics in the coming decade is likely to be a politics in which both liberals and conservatives attempt to use temporary points of leverage to re-orient the electoral playing field in lasting ways. The bad and perhaps-sort-of-good news is that conservatives have already been so wildly successful at this that liberals are surely close to the nadir. There’s hardly anywhere to go but up.
There are two ways up. I expect we’ll see some of each. One set of moves involves what my coauthor David Pozen calls anti-hardball, which paradoxically sometimes requires hardball: Democrats should use limited points of leverage to unskew the political system where and how they can, making majority rule more likely and minority rule less likely going forward. Thus, should the Democrats somehow eke out a Senate majority in 2020, the first order of business ought to be amending the Senate rules so that legislation needed to fix at least some of these problems—a federal voting rights statute, a statutory scheme against gerrymandering, a law regulating the times, places, and manner of elections in such a way that far more Americans will vote, the admission of some new states such as Puerto Rico to the Union—is not vulnerable to a filibuster. That’s constitutional hardball for sure. A big part of its goal is to take off the table certain other forms of constitutional and political hardball such as vote suppression and partisan gerrymandering (that’s the anti-hardball part). The overall goal is to make the system fairer and more representative of the American people.
The second set of moves aims to shake up our politics in a way that alters the two current party coalitions, leaving the older, whiter minority with too small a faction to rule even with loaded dice. There is nothing foreordained about the current party structure, the issues that define it and the components of the two party coalitions that sustain it. It will someday change. If I knew how to make that happen sooner, I would tell you. But the traditional progressive approach is surely worth drawing on. That approach is to use temporary points of leverage to enact legislation that is so popular it alters politics itself. Medicare is a useful example. Once demonized, it is so popular now that, as with Social Security, even those who repeatedly attempt to gut it have to pretend they’re doing the opposite. Anyone interested in this approach ought to eschew overly wonky, carefully optimized, and targeted policy solutions and instead go for simple, understandable ones (even if inefficient) that have obvious direct positive impact on political constituencies too large to be ignored.
Meanwhile, there are moves wholly apart from policy that can help cause political coalitions to shatter and re-form. The simplest way to divide the current ruling coalition would likely be to cause that coalition to split in some way over its mercurial, disastrous President. If the majority takes the House, serious oversight would be a place to start.
Although you would not know it from this blog post, those who know me will tell you that I’m actually a deeply optimistic person. Recent events have not made that a particularly easy disposition to maintain. Still, I believe, optimistically, that our political future remains highly contingent. It is not foreordained that we are entering a period of long-term minority rule. Still, it seems more than just possible. It seems likely. The danger of lengthy and well-entrenched minority rule is extremely serious, and every choice we all make about political and legal reforms in the coming years needs to begin from that premise.
Joseph Fishkin is the Marrs McLean Professor in Law at the University of Texas, Austin.
Cross-posted at Balkinization.