Legal correspondent explains how a party that can't win elections is using the courts to drive a hard-right agenda
For two whole years, Republicans had complete control of both branches of Congress and the White House under Donald Trump, but all they did of legislative significance was pass a massive tax cut for the rich and corporations. Republicans seem so uninterested in legislation, in fact, that the party didn't even bother to draft a platform during the 2020 campaign. Instead, then-Senate Minority Leader Mitch McConnell spent Trump's presidency cramming as many judges as he could onto the federal bench, working until the last possible moment of Trump's presidency on this takeover of the judicial branch. The result was a massive victory for Republicans, a thorough remaking of the federal courts — including, of course, the Supreme Court, which now has six right-wing justices, three of them appointed within Trump's single term.
Ian Millhiser, the senior legal correspondent for Vox, argues that this is no accident. In his new book, "The Agenda: How a Republican Supreme Court Is Reshaping America," Millhiser argues that Republicans have given up trying to pass their wildly unpopular policy agenda through the legislature, which only invites voter anger and backlash. Instead, the court capture is a way to go around the voters to impose the GOP agenda by fiat. I recently spoke with Millhiser about what this Republican-controlled court system means for America. Watch our "Salon Talks" conversation here, or read the following transcript, edited as usual for length and clarity.
As you note in your book, outside of a big tax cut for the rich in 2017, Republicans in Congress "enacted hardly any major legislation under Trump, at least until the pandemic." But you argue that we shouldn't mistake this for the GOP having no agenda at all.
If you go back maybe five years, the Republican Party had a hugely aggressive legislative agenda. There was the Paul Ryan budget: They wanted to voucherize Medicare, cut Medicaid in half and slash food stamps, all these things. And they campaigned on none of that in 2020. While Biden's trying to pass his agenda, Republicans seem to feel like a good use of their time is to complain about Dr. Seuss.
I've seen some writers say, "Hey, the Republican Party doesn't have any ideas right now." But the truth is, they've got a hugely aggressive policy agenda. They just have turned away from democracy as the vehicle to decide how policy is enacted. They control the courts, and they have a 6-3 supermajority on the Supreme Court, and they're pushing an extraordinarily aggressive agenda. I get into some parts of it in the book.
They are dismantling voting rights laws, they are making it so that agencies like the Environmental Protection Agency, the Department of Labor an the Department of Health and Human Services, can't regulate businesses, can't prevent emissions, can't make sure that your health insurer provides you with a certain baseline of coverage. They make it so you can't get into court, even when your rights are violated. On top of that, they're carving out certain special protected classes, like conservative Christians who don't even have to follow the laws. It's a pretty aggressive agenda.
If Donald Trump had campaigned in 2020, and had said, "We're going to render the Voting Rights Act completely useless, we're going to strip the EPA of its ability to control pollution and we're going to say that if you hold the right religious beliefs, then you're allowed to violate anti-discrimination laws," people would have thought that was a pretty impressive agenda that's as aggressive as any party has run on in recent years.
Which leads me to an interesting question. Do you think they set out to take over the courts deliberately, or was it something they backed into, realizing that this was the best way to pursue their agenda without paying a political price for it?
It's a good question. I think that, generally, parties that are confident politically don't tend to rely too much on the courts. So if you go back and you listen to what FDR had to say about the judiciary — and FDR was dealing with a very hostile Supreme Court that was striking down key portions of the New Deal. But what FDR did not do is put in place a bunch of justices who would just implement the New Deal for him. What he wanted was for the court to back the fuck off. He got elected in a landslide. He had a huge congressional majority. He argued, just let the democratic process work, and the court should just uphold his legislation. And if you look at, say, Nixon or Reagan's rhetoric regarding the court, it was basically the same.
Whatever you think of Ronald Reagan, he won two elections in a landslide. He had every reason to be confident that he could get his policy through using the democratic process with political legitimacy, without having to have some side body of unelected aristocrats doing it for him. You flash forward to the present, and Democrats have won seven of the eight last presidential elections, if you look at the popular vote. If the Senate wasn't as badly apportioned as it is to give extra seats to small Republican states, Democrats would have controlled the Senate, I think, continuously since the mid to late '90s. The Republican Party that we have now can't win free and fair elections.
Now maybe if they didn't have as many built-in advantages as they do they would moderate, and they would be competitive. But the particular hard-right Republican Party that is in place right now, they're not confident in their ability to win elections. And if you're not confident in your ability to win elections, there's one of two things you can do. Either you can try harder to win elections by moderating, or you can abandon democracy. When you control the Supreme Court, you have the option to abandon democracy.
Right now in Georgia, they've passed this very expansive voting restriction law that makes it much more difficult to vote, but also makes it very difficult for a free and fair election to be adjudicated correctly because they're doing all this weird stuff in the background to make it so that Republicans can throw out votes. I think that's the end game here. I've been seeing a lot of liberals on Twitter confidently declaring that the Supreme Court will throw this law out, that it's so clearly unconstitutional that we shouldn't be worried about it. What's your take on that?
This Supreme Court is really hostile to voting rights. So the backbone of our voting rights law is the Voting Rights Act, which prohibits racists voting laws. And the reason why you have to think about race when you think about elections is because, in a typical American election, Democrats will win 80% to 90% of the Black vote, and about 60% to 70% of the Latino vote. That's been a consistent pattern for many, many elections in a row. So if you're a Republican state lawmaker, and you want to disenfranchise Democrats, you can use race as a proxy to identify where the Democratic communities are. The most troubling provision of this Georgia law isn't any of the stuff dealing with early voting or voting by mail or even the dumb provision saying you can't give people water while they're waiting in line. The most troubling provision of this bill is that it allows the Republican-controlled state elections board to take over any local election board.
And what local election boards can do in Georgia is they adjudicate voting disputes over whether an individual voter is qualified to vote. They can potentially shut down precincts in a locality, and then they can refuse to certify an election. So the big danger is that it's very easy to identify where the Democratic communities are in Georgia — not all of them, there are white Democrats in Georgia — but if you shut down the polling precincts in a Black neighborhood in Atlanta, you can be confident that 80% to 90% of the people who are disenfranchised because of that are going to be Democrats.
The danger is that they will use this power. They'll use race as a proxy to identify the Democratic neighborhoods, they'll shut down precincts, they will uphold a lot of ballot challenges, they'll say that people aren't allowed to vote, and they may even refuse to certify the results in those areas as well. Now, the way that that would have been handled in the past is that the Voting Rights Act has three prongs. First is "pre-clearance." States with a history of racist voting practices have to pre-clear their new election laws with officials in D.C., just to make sure they aren't racist. The second is called the "intent test": If you take an action with the intent to discriminate on the basis of race, that's not allowed. So if Georgia Republicans of the state election board take over the Atlanta local election committees with the intent to prevent Black people from voting, that would violate the intent test. And then there's the thing called the "results test," which is complicated, but the short of it is that certain laws that have a disparate impact on voters of color also have to be struck down.
If for instance, they're only throwing out majority Black districts, that's pretty clear.
Right, so the thing that you see in a lot of states — this actually didn't make it through in the Georgia bill — is that Black churches tend to hold "souls to the polls" drives on Sundays. A lot of Republican states are trying to get rid of early voting on Sundays, because Black people are unusually likely to vote on Sunday because of these voter drives held by the churches. If you write a law that says, "There's no voting on Sunday," there's nothing in it that immediately clicks "race" to you. But the result of that law will be that a lot of Black people won't be able to vote, or at least it will be harder for them to vote. That would ordinarily run afoul of the Voting Rights Act.
The problem you have is that the Supreme Court basically got rid of pre-clearance in the Shelby County decision in 2015. There was a case called Abbott v. Perez in 2018 that said that the burden of proof for a plaintiff alleging racist intent is so high that it's basically impossible to meet. If you can show that the lawmakers burned a cross while passing the law, then maybe the Supreme Court will say that that's not allowed — although Justice Alito will dissent. Anything short of that, it's just next to impossible after Abbott v. Perez to win all but the most egregious cases.
There's a case in front of the court right now called Brnovich, which goes after the results test. I don't know if the Supreme Court is going to dismantle the results test in one fell swoop, I think they're more likely to do it incrementally, a few pieces at a time. But still, if you don't have pre-clearance, you don't have the intent test, you don't have the results test, then you don't have a Voting Rights Act. If you don't have a Voting Rights Act, then you don't have safeguards against, say, the state election board in Georgia coming in and taking over all the Atlanta polling places and allowing conservative groups to come in and challenge tens of thousands of voters claiming that they aren't properly registered to vote. All of a sudden you aren't having free and fair elections anymore.
I also want to talk about abortion rights because there are a bunch of cases coming to the court, I suspect very quickly. South Carolina and Arkansas have passed almost complete abortion bans and Texas is about to. The Supreme Court is 6-3 opposed to abortion rights. Could they overturn Roe v. Wade?
Absolutely. Unless Justice Thomas and Justice Alito are lost at sea during the early phase of the Biden administration, I think Roe is doomed. Now, I think there are two questions. One is, how quickly it will be doomed? There's a case called Dobbs, I believe, in front of the Supreme Court right now, it involves a 15-week abortion ban. That's been sitting on the court's docket and they've been waiting to decide whether they're going to hear the case or not. Every week passes and they just do nothing with it. Maybe they're a little cautious. Maybe they realize that Democrats are mad right now about how things went down with the last few Supreme Court confirmations and they should maybe wait until there's a Republican Senate before they overrule Roe v. Wade. They might not do it right away, but it's coming.
The other thing is that I don't know that the Supreme Court will ever actually use the words, "Roe v. Wade is overruled." And the reason why is they don't have to. We had a bunch of cases — one out of Texas, one out of Louisiana — dealing with what are often called trap laws. These are laws that just put unnecessary and expansive restrictions on an abortion clinic. Your doctors have to have certain credentials that are hard to get and don't matter, your halls have to be a certain width, you have to have an HVAC system that costs this much money. There's no actual health purpose, it's just to run up the cost of running a clinic.
That's the equivalent of these voting restrictions, but on abortion.
Exactly. I think it's only a matter of time before some state tries to say that, "You can't vote unless you have admitting privileges at a nearby hospital." But anyway, once the Supreme Court opens the door to that sort of thing, they don't have to strike down Roe v. Wade. They could say, "Abortion is protected by the Constitution. But if a state wants to say that all abortion clinics need to be made out of solid gold, that's fine." Or, "Doctors can perform abortions, but before they do, they have to complete a special training class that can only be taught by the pope." Stuff like that, things that in theory leave the abortion right alive, but in practice make it impossible.
It doesn't even need to be as egregious as the class being taught by the pope, because the problem is that there's a moving target here. If the Supreme Court had upheld Texas' law with its admitting privileges and its hallways and stuff like that, Texas would have just passed another law that made it more restrictive and imposed more and more restrictions on a clinic. Maybe they'll wait until Planned Parenthood invests a bunch of money in a new $10 million facility that complies with all the legal obligations. And then they'll be like, "Sorry, we just looked at your operating room, and the ventilation systems aren't good enough. I guess you've got to shut this down." Eventually, if you're an abortion provider you're just not going to be able to keep up. You're not going to keep lighting money on fire and making improvements to your buildings, when five minutes later you're going to be told to do something else.
This is all very depressing, especially considering how much the courts have been captured by the Republicans. What can people watching this do to make this situation better?
The most important thing that anyone can do is vote. I have an entire chapter in here talking about a practice called forced arbitration, which is where if you do business with anyone, including your employer, your boss can send you an email saying, "If you ever want to sue the company, you can't. You have to go to a private arbitrator and we're going to pick the arbitrator." And all the data shows that arbitrators are more favorable to companies than they are to individuals. And you're also not allowed to bring a class action. So if we do something to all of our employees, all of you have to bring individual suits. You can't join together in a class action. And if you don't agree to give up all your rights this way, you're fired.
This "You get your steak knives or you're fired" approach was endorsed by the Supreme Court. But it's all statutory law, it's all this misinterpreted law called the Federal Arbitration Act that was passed in the 1920s. And because it's statutory, Congress can fix it. Now, for Congress to fix it, not only do we need to make sure that we vote for members of Congress who want to fix it, we need to eliminate the filibuster. We need to vote for members of the Senate who will eliminate the filibuster. And then the nuclear bomb that could be dropped on the Supreme Court is you can add seats to it.
The Constitution says, "There shall be a Supreme Court." It doesn't say how many seats there are. Congress could say that there are going to be 15 justices: "Look, now there's six vacancies, so Biden gets to appoint them." There's a Democratic majority, Congress could do that. I don't think they have the votes for it right now. Now, I don't think court packing is necessarily your option of first resort because if you add seats to the court you diminish the prestige of the judiciary. I don't think it leads to Roe v. Wade being saved. It leads to Texas saying, "We're just not going to follow Roe v. Wade anymore." But what court packing is useful for is: Well, why do we have nuclear weapons? We have them so we don't have to use them. The reason why the U.S. has a nuclear arsenal is so anyone who would think of attacking us knows we could destroy them, so they don't attack us.
If we can put the fear of God into the Supreme Court and say, "OK, I understand that you don't like voting rights, but we like voting rights, and we have this nuclear missile that we are going to launch at you if you come after the Voting Rights Act." If you can convince them of that, then you don't need to deploy the weapon.
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