The importance of appointments to the Supreme Court isn’t limited to the issue of abortion, or to questions whether “religious liberty” protects the right to discriminate against gay people or refuse to be vaccinated, even when that “liberty” demonstrably harms others.
Thanks to Mitch McConnell, the Court now has at least four current Justices who appear ready to erase over a hundred years of precedent in order to protect the GOP’s electoral advantages. If the Court ultimately decides to ignore most of the jurisprudence that followed and applied the 14th Amendment, returning the United States to a decidedly ununited status under the rubric of “states rights,” it won’t take long before we inhabit a country that most Americans won’t recognize.
And that country will not be a democracy, if by “democracy” we mean majority rule limited only by the Bill of Rights.
The Court recently denied efforts by Republicans from Pennsylvania and North Carolina to overturn lower court decisions that found redistricting maps favoring Democrats were fairly drawn. The immediate result was positive (or negative, depending upon your political preferences) and most people didn’t read beyond the headline. If they had, they would have seen a chilling dissent filed by four right-wing justices who supported the Republicans’ argument that state legislatures have ultimate power to determine their own voting procedures, including the selection of presidential electors.
This–as several commentators have noted–is the old state’s rights argument.
If a state’s legislature can determine who gets to vote, or how votes are to be counted and by whom, states like Indiana that have already been gerrymandered to ensure Republican super-majorities can pass laws that further disenfranchise Hoosiers who disagree with their agenda, no matter how extensive that disagreement may be. (We saw the outlines of that agenda in the recently concluded session; Republicans and police officers opposed the bill that eliminated the requirement of a permit to carry a gun.It passed anyway. And Republicans in the legislature have already asked the governor to call a special session to outlaw abortion if–or when–this Supreme Court strikes down Roe v. Wade.)
As historian Heather Cox Richardson recently reminded readers, in 1868, it was this very concept of “states rights” that Congress overrode with the Fourteenth Amendment–an amendment that the states subsequently ratified.
As others have noted, with appropriate alarm, at least four of the current Supreme Court justices have confirmed that they are ready to support this independent state legislature theory. That support requires what one pundit has accurately called “a radical reading of the Constitution that imbues state legislatures with total control over election and voting rules, and redistricting.”
The Supreme Court has already denied the federal courts authority to overrule partisan gerrymandering. If it endorses the independent state legislature theory, that would bar state courts from doing so as well. As the linked article summarized the situation,
f enough justices embrace this theory, it’ll give state legislatures — which skew Republican thanks to down-ballot investments and aggressive gerrymandering — free rein over redistricting, voting rules and, most disturbingly, elections.
“It is effectively an avenue to free state legislatures from the supervision of state courts, which play a critical check and balance on the power of those legislatures,” Daley added. “All you have to do is look at state legislatures around the country to get a really good sense of what the future would look like if these legislatures are free to enact election law with impunity.”
An embrace of that theory by the Supreme Court would further exacerbate the divisions between Red states and Blue states; as the old saying goes, what’s sauce for the goose is also sauce for the gander. Many years ago, political scientist Theodore Lowi traced the resistance of local political pooh-bas to the 14th Amendment’s application of the Bill of Rights to state and local units of government. The result of that application, of course, was to create an American identity–to assure citizens that they would have the same basic rights if they moved from State A to State B.
Make no mistake: empowering state legislatures under this radical theory wouldn’t simply entrench political parties and eviscerate the 14th Amendment. It would be a retreat in the direction of the Articles of Confederation.