Democratic candidates could collectively win millions more votes in the next Congressional elections and still not capture a majority in the House of Representatives. And this is all before getting to the raft of underhanded measures meant to prevent or discourage voters, including felony disenfranchisement laws that affect more than six million US citizens—a quarter of them in the presidential “battleground state” of Florida. Abolishing these constraints is not about helping the Democratic party win elections, but about expanding and reconfiguring the field of political possibilities in this country. Yet this institutional monstrosity is virtually impossible to address due in part to the requirement that three- quarters of the states must approve any constitutional amendment. This has kept the formal text of the constitution—and some of the hardwired rules of the electoral system—beyond the reach of popular politics for nearly a century, while turning the idea of the constitution into a sacred yet abstract ideal.
This state of affairs has given the nine Supreme Court justices, insulated by lifetime appointments, inordinate power over constitutional matters. In perhaps no other country have judges been accorded demigod status, whose every firing of a synapse must be gleaned for higher meaning, whose every heartbeat could determine the fate of the republic. Hence the liberal panic over the likelihood of the court moving even further to the right with Brett Kavanaugh’s lifetime appointment to the bench. This reaction is understandable, and the urgency is absolutely real. But it is also important to keep some history in mind and to recalibrate long-term expectations around the reality that in order to be meaningful, rights must not only exist in law books but also be vigorously defended by popular forces. The notion that courts are the last bulwark protecting the marginalized stems from an impoverished notion of politics: elect the right officials who will then appoint smart judges so that we can sit back and wait for them to decide on our rights. The historical myth of the judiciary as protector of the weak is a relatively recent one, dating mostly from the 1960s onward. More relevant are the extraordinarily undemocratic structures at work,
- Summer '20
- Dr joseph