By Tom Coffin
In his Year-End Report on the Federal Judiciary, Chief Justice John Roberts reminded us of our obligation to pass on to the next generation a fully functioning government that is responsive to the needs of the people.
An ancient proverb admonishes us to first take out the beam in our own eye before we attempt to remove the speck in our neighbor’s eye. The Supreme Court has itself not been kind to democracy in the 21st century.
The century began when the court directly intervened to halt Florida’s vote-recounting process and award the presidency to George W. Bush. Shocking though that was, the court has continued to issue rulings that endanger our democracy.
In 2010, after Roberts had been appointed chief justice, the Supreme Court issued its infamous Citizens United decision, holding that corporations have a First Amendment right to make unlimited contributions to political campaigns. In the 5-4 opinion, the court dismissed the argument that corporate expenditures created any risk of corruption, because the contributions would not be “quid pro quo” transactions.
In dissent, Justice John Stevens prophetically observed that corporations would unfairly influence the electoral process with vast sums of money, noting that corporations exist solely as creatures of legislation and are not in any sense “We the People” for whom the Constitution was established.
The majority’s Pollyannish recital that corporate expenditures could not corrupt public officials and that the resulting influence over lawmakers was not corruption has been proven false. Even the Kremlin has exploited Citizens United to funnel money to Super PACs in the American political system. Foreign actors and multinational corporations, in short, are purchasing assets.
If that is not corruption, then the term has lost its commonly understood meaning.
The Supreme Court delivered another body blow to democracy in 2013 with its decision in Shelby County v. Holder. Again, by a 5-4 vote, Roberts ruled that a key provision of the Voting Rights Act of 1965 turned unconstitutional with age because the data relied upon by Congress was now stale. Subsequent critiques concluded that it was Roberts who cited erroneous data to justify his finding that voter suppression no longer existed in the states subject to the VRA.
In the aftermath of Shelby, with no VRA as a barrier, Republicans have closed more than 1,000 polling places in formerly protected counties, purged voter rolls and imposed strict voter ID laws — all with the effect of suppressing minority votes. To no one’s surprise, taking away the preventative medicine has resuscitated the disease.
In 2019, the Supreme Court rendered even more assistance to the Republican agenda through its decision in Rucho v. Common Cause. With Roberts again writing for a majority composed of Republican appointees, the Court held that partisan gerrymandering was strictly a “political” question that cannot be challenged in federal courts.
One form of gerrymandering apropos to that case involves “packing” districts to negate the effect of oppositional votes. Imagine, for example, a boarding house with eight occupants and three rooms. Decisions in the house are made by a majority vote of the rooms, with each room having one collective vote. The occupants are evenly divided between a Red faction and a Blue faction, with each faction having quite different ideas about the house rules. Suppose the landlord assigns all Blues to a single room, while putting two Reds in each of the other two rooms. Although equal in number, the Reds will always prevail because they have double the voting power.
Even a child would immediately perceive this to be unfair or cheating.
This is squarely at odds with the democratic principle of equality among all members of the electorate. It is racist in the extreme when it targets voters of a particular ethnicity in the manner in which districts are drawn.
Although Common Cause did not disturb existing jurisprudence barring intentional racial discrimination in drawing district lines, the map drawers can now simply claim their decisions were made only for partisan reasons to mask racist intent (African American neighborhoods are typically perceived as being populated by more Democrats than Republicans). In fact, there are conferences and seminars to teach state lawmakers how to tweak gerrymandering to avoid getting caught with forbidden motives.
A political movement in the nation today threatens our institutions, our Constitution, our democracy and the fundamental principles on which our country was founded. This movement is spearheaded by a president who is enamored of dictatorships and foments a nationalism that rejects the diversity that has heretofore defined us.
Tragically, key decisions by the Supreme Court over the last 20 years have not only failed to protect our principles, they have undermined them. If we fail in the obligation to pass on to the next generation a government that is responsive to their needs, the Supreme Court will bear much of the blame. ν
Thomas Coffin is a retired United States Magistrate Judge. He served 24 years in the United States District Court for the District of Oregon, from 1992 to 2016. Prior to joining the federal bench, Judge Coffin earned his Juris Doctor from Harvard Law School and served as an assistant United States attorney in both the Southern District of California and District of Oregon.
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