By Alex Goldstein, 2020 AFJ Summer Law Clerk
In March, Judge Lynn Adelman of the United States District Court for the Eastern District of Wisconsin published a scathing critique of the Roberts Court for its role in “undermining American democracy” in the Harvard Law & Policy Review. Adelman called out Justice John Roberts personally for his “disingenuous” claim during his confirmation hearing that his role as Chief Justice would be that of an umpire, merely calling balls and strikes. Adelman paints a picture of an activist conservative court under Roberts’ rule that has aggressively advanced the interests of the wealthy and powerful over those of everyday Americans.
The article is particularly concerned about the Roberts Court’s consistent degradation of voting rights, which has opened the floodgates for various Republican-led laws targeting and disenfranchising marginalized groups with “surgical precision.”
Following a Supreme Court term in which liberals cheered Justice Roberts’ “progressive” stances on abortion, gay rights, and DACA, Adelman’s piece serves as a powerful reminder of the conservative Court’s willingness to advance the anti-democratic impulses of the right-wing elite to maintain the power of a wealthy minority.
Judge Adelman was admonished by a Judicial Conduct panel of the Seventh Circuit for, as a lower court judge, “an attack on the integrity of the Chief Justice rather than disagreement with his votes and opinions in controversial cases.” But, while legal analysts criticized the character of Judge Adelman’s attack on a higher court, few debated the substance of Adelman’s claims.
Indeed, if Democrats take back control of the White House and Congress this fall, they must prioritize a pro-democracy agenda that ensures the will of the American people — not the wealthy and powerful — is represented in government. And, they must prioritize nominating and confirming judges who will protect the critical right to vote. Otherwise, Republicans will continue to push voter suppression tactics with impunity from an increasingly right-wing judiciary.
Particularly at a time when politicians of both parties celebrate John Lewis’s life, it is long past time for the Republican-controlled Senate to take up and pass the John Lewis Voting Rights Advancement Act. In an article released after his death, Lewis stated, “The vote is the most powerful nonviolent change agent you have in a democratic society. You must use it because it is not guaranteed.” This act would help realize the civil rights icon’s vision of an equal and just society by correcting the Supreme Court’s disgraceful Shelby County v. Holder decision, creating a new Section 5 coverage formula based on recent evidence of discrimination, and protecting the right to vote for communities of color across the nation.
A bold vision of democratic reform also requires that Congress finally pass H.R. 51, a bill that would grant D.C. statehood and representation in Congress to the city’s more than 700,000 residents. As the ACLU recently noted, D.C. residents’ lack of federal representation is not a historical coincidence. It was an intentional reaction to a politically active Black community in the late 1800’s. In 1890, Senator John Tyler Morgan of Alabama explained that once “the negroes came into this district,” it became necessary to “deny the right of suffrage entirely to every human being.” D.C. remains 49 percent Black and overwhelmingly Democratic.
In a city that pays the highest income tax rate in the country and has been denied critical funding during the coronavirus pandemic, the stakes of self-rule became even more apparent this June. Peaceful protesters reeling from the police murder of yet another Black man, George Floyd, were confronted by federal law enforcement officers firing rubber bullets, tear gas, smoke canisters, and stun grenades. For the following week, federal troops occupied the city’s streets over D.C. Mayor Muriel Bowser’s objection. Republicans discredited Democratic efforts to expand rights to D.C. residents as a “power grab.”
Ultimately, Democrats have the moral high ground in the debate around D.C. statehood and voting rights generally. Republicans have openly admitted that denying the vote to large swathes of the population is their goal for decades. In 1980, Republican strategist Paul Weyrich, known as the founding father of the modern conservative movement, publicly stated, “I don’t want everybody to vote. Elections are not won by a majority of people. […O]ur leverage in the elections quite candidly goes up as the voting populace goes down.” This sentiment continues to guide the right’s conception of voting. In a March interview with Fox News, President Trump echoed Weyrich’s sentiment, claiming that “you’d never have a Republican elected in this country again” if Democratic policies making it easier to vote were enacted.
Understanding the threats of a fully realized democracy to their own agenda, Republicans push policies like strict voter ID laws, purges of registered voters, and limits to mail-in voting, relying on the myth of widespread voter fraud. These measures serve the dual purpose of disenfranchising populations who have historically been excluded from systems of power and decreasing Americans’ faith in the democratic process. This opens the door for Republican politicians to question the legitimacy of elections as many fear Trump will do again this November. In fact, he has already stated that mail-in voting will lead to inaccurate results and foreign interference, despite a lack of evidence, and has even threatened to delay the election.
Critically, Republicans have effectively weaponized the courts to create a political machine dedicated to disenfranchising anyone who might not vote for them. As a report released by Senate Democrats warned, “our federal courts risk becoming little more than an arm of the Republican Party’s big donors.” The Supreme Court held in Yick Wo v. Hopkins in 1886 that voting is “fundamental” to the American system of self-government. Under Roberts, however, the Supreme Court has refused to apply strict scrutiny review in voting rights cases as it does in cases involving other fundamental rights.
In fact, despite the supposedly fundamental role of voting, Judge Easterbrook of the Seventh Circuit — in a decision that limited mail-in voting in Wisconsin as coronavirus was ravaging the state — equated democratic efforts to expand the franchise with Republican efforts to limit voting, stating, “Wisconsin has lots of rules that make voting easier, […] These facts matter when assessing challenges to a handful of rules that make voting harder.” This moral relativism assumes that expanding access to the ballot is a left-wing political tactic rather than an effort to ensure we indeed live in a democracy, where a majority gets to determine who governs.
Following the Roberts Court’s gutting of the Voting Rights Act in Shelby County v. Holder, states across the South rushed to impose voter discrimination measures while the decision’s ink was still wet. Over the past few years, the Supreme Court has rejected challenges to extreme partisan gerrymanders in Texas, allowed Ohio to target and remove infrequent voters from the rolls (many of whom are young and people of color), and upheld a strict voter ID law in North Dakota that disenfranchised over 70,000 Native American voters.
The Supreme Court has continued its “trend of condoning disenfranchisement” during the height of a global pandemic as states prepare for the 2020 election, supporting Republican laws that force Americans to choose between their lives and their ability to vote in Wisconsin, Texas, Alabama, and Florida. The chaos and dysfunction of the primary elections in Georgia, Wisconsin, Ohio, and elsewhere are the direct result of years of Republican voter suppression efforts and refusals to fund safe voting during a global pandemic. These primaries are a warning for what could be a disastrous election this November.
But this trend goes well beyond the Supreme Court. President Trump has nominated over two hundred federal judges, many of whom have dedicated their careers to attacking voting rights.
Andrew Brasher, now a judge on the Eleventh Circuit, defended Alabama’s strict voter ID law as well as its anti-voter felon law, which disenfranchised over 286,000 Alabamans, over half of whom were Black. He also supported an Arizona law requiring voters to show proof of citizenship before voting.
Kyle Duncan, now on the Fifth Circuit, represented North Carolina in an attempt to obtain a Supreme Court reversal of a Fourth Circuit ruling invalidating the state’s restrictive voting law that required voters to have photo identification, reduced the days of early voting, and eliminated same-day registration, out-of-precinct voting, and preregistration.
One nominee, Thomas Farr, spent his entire career trying to make it harder to vote, including being named in a Justice Department memorandum for taking part in an illegal voter suppression scheme on behalf of Jesse Helms. The list goes on.
If Democrats take control, they will face a federal judiciary hostile to even small-scale democratic reform. Trump’s lower court judges have already supported efforts to make it hard to vote. Elizabeth Branch of the Eleventh Circuit, contrary to decades of precedent, even argued that people and organizations could not sue to enforce the Voting Rights Act.
Thus, any pro-democracy platform must include nominating judges who understand the vital role of voting in ensuring a functioning democracy. This means nominating lawyers who have been on the front lines of the struggle for voting rights throughout their career.
As the country becomes younger and more diverse and Republicans continue to run on a platform of racial resentment, their power relies on the suppression of Democratic-leaning voters, as well as structural constitutional provisions like the Senate and the electoral college that benefit white, rural voters.
While Republican politicians and judges promote a reactionary vision of democratic representation, progressives should heed Judge Adelman’s warnings about the current state of American democracy and do everything in their power to expand the right to vote.
This fall, they may have a once-in-a-century opportunity to drastically reform American democracy. If they squander it, there is no telling whether the opportunity will present itself again.