Conservative Courts Empower Conservative Legislatures

As the smoke starts clearing from a flurry of historic U.S. and Wisconsin supreme court decisions, one consistent theme is becoming pretty clear. These conservative courts are shifting power on a massive scale toward legislative bodies and away from courts and executives.

The reversal of Roe puts the issue back before states or, when Republicans take back Congress, it potentially empowers them to ban all abortions on a national basis. The thwarting of EPA rules on climate change is less significant for the case at hand than it is for everything else. The Obama era rules that were struck down were never in force and the utility sector has been moving rapidly toward cleaner fuels on its own. But the over-riding principle of the court’s ruling is that agencies — not just the EPA — have to go to Congress for authority when they make rules with a major new impact. How that will be defined is less certain, but what’s clear is that every government agency will have to think twice before acting.

At the state level, the Wisconsin court declared voting drop boxes illegal because the Legislature did not specifically authorize them. Again, the principle here could be applicable to a lot of things, not just election rules.

I don’t think they’re doing this on principle. I can’t imagine either court moving power to legislative bodies controlled by Democrats. In Wisconsin, Republicans have a gerrymandered chokehold on the Legislature for another decade, unless Democrats can figure out how to win again in suburban, small town and rural parts of the state. Nationally, Republicans fully control 30 legislatures, Democrats control only 17 and three are split. And in Congress a slim Democratic majority will certainly disappear this fall in the House. Even if they manage to hang on in the Senate, the filibuster and the Republican House will thwart any kind of progressive moves beyond court appointments and there aren’t likely to be any new Supreme Court vacancies for quite some time.

So, by investing more authority in legislative branches, overall, the conservative courts are handing power to fellow conservatives. If it was Democrats who had a comfortable majority in Congress and controlled the lion’s share of state legislatures there is simply no way that these conservative courts would be doing this. This is not about the law or about principle. It’s about raw politics.

And the worst may be yet to come. SCOTUS will take up Moore v. Harper next term. This case out of North Carolina is technically about redistricting, but the Court took it because it gives the conservatives a chance to establish something called the independent state legislatures doctrine. When the Court rules on this case in about a year what they will almost certainly do, on a 5-4 vote, is give legislatures the power to decide presidential elections. Legislatures will be able to ignore popular votes and assign electoral votes any way they please. And, again, because Republicans will control some three-fifths of legislatures it makes it very possible that the Republican candidate will lose both the national popular vote and popular votes in states that amount to a majority in the Electoral College and still be declared the next president. And it will all be legal.

Here’s the irony. You would think that investing more power in elected legislative bodies would mean more democracy, but the net result is just the opposite. Because various elements of our system (equal representation of states in the Senate regardless of population, the Electoral College, the filibuster, extreme partisan gerrymandering) combine with a quirk in how we distribute ourselves on the landscape (Democrats huddle in tight deep blue cities making it hard to draw competitive districts even if you want to) we’re left with a situation where the will of the majority is being thwarted.

Americans support abortion rights with some reasonable limits, but over half the states will ban it in all but the rarest cases. Americans overwhelmingly support at least modest gun control, but a tiny minority of gun rights extremists hold sway. Americans are concerned about climate change, but if left up to Congress nothing will happen.

Our system is set up to go slow. It favors stability. As a moderate, I appreciate those things. But I also respect democracy and the will of the majority. If that will continues to get pummeled on big issues and over the long-term I fear for our country. It undermines public confidence in our entire system. I worry about what happens next.