News & Politics

How the Supreme Court's Outrageous Assault on Our Lives Might Be Used to Knock Republicans Out of Power in Congress

The damage to this country that the Supreme Court's right-wing majority has done could be employed by Dems to destroy House Republican majority.

Chief Justice John Roberts has played the American public like a hand of cards this week. He rolled out of rulings gutting some of the most important civil rights laws of the past 50 years. But he quickly diverted attention to these assaults by holding back two same-sex marriage rulings until the term’s last day.

Everywhere, from ubiquitous Facebook posts, to cheers and hugs on the Court’s marbled steps, to The New York Times columns a day later, euphoria has surged for the ruling written by Justice Anthony Kennedy holding that the definition of marriage in the Defense of Marriage Act (DOMA) is unconstitutional. The other ruling, written by Roberts, allowed the marriages to resume in California.

But Kennedy is no civil rights hero. He wrote the 2010 Citizens United ruling that made federal elections even more of an extreme sport for the rich. His DOMA decision was the right thing to do. It wasn’t courageous. Its scope was limited. And despite predictable homophobic barbs aimed at him from Justice Antonin Scalia, Americans—including many progressives—are missing the big picture.

John Roberts is the most political chief justice in recent decades. His strategic release of this week’s decisions—one setting the stage for overturning affirmative action in higher education, two eviscerating workplace harassment standards, and then gutting the most important voting rights law of the past half-century—were all deliberately buried by the timing of the two marriage decisions. These rulings take months to prepare and their release is not random. 

Americans shouldn’t buy into Roberts’ divide and conquer strategy by saying, ‘we won’ on GLBT issues but lost on racial justice. This politicized right-wing majority Court must be seen as the political animal that it is—and could become a target and rallying cry in 2014 elections. 

Many political scientists expect the 2014 federal midterm election to be another low-turnout cycle, with 40 million fewer voters than a presidential year. But what would it take to turn 2014 into a wave election that takes back the U.S. House from the GOP? Or expands a Democratic U.S. Senate? Or pressures the Obama administration to do what most people wanted when voting for him for the first time in 2008?

The answer is roughly an 8 percent increase in voter turnout on the Democratic side, according to George Mason University’s Michael McDonald, who studies voter turnout and runs its United States Election Project. He says figuring out what motivates voters is tricky and evasive, just as it is hard to pinpoint what races and voters will tip outcomes.

But the damage that the Supreme Court’s right-wing majority Court has done in recent years, and continued to do this week, evokes deep emotional reactions.

Just look at the euphoria felt and expressed in GLBT circles. It’s real and equality is too long in coming. As The New York Times’ Frank Bruni wrote, the marriage rulings “have another kind of effect, deeply emotional, potentially symbolic, impossible to measure—but arguably much more sweeping.” Bruni is referring to the dignity that’s conferred when powerful institutions affirm one’s identity and self-worth.

But the opposite is also true. When the Court’s radical, rightwing majority hacks away at the legacy of 20th Century’s civil rights movement, most notably gutting the 1965 Voting Rights Act, politics-as-usual no longer suffices. You don’t have to be gay to feel the pride about legitimizing same-sex marriage, just as you don’t have to be African-American to feel the pain caused by Court’s latest race-blind injustice. 

Voting rights groups that have worked very hard in communities of color held a press conference a day after the VRA decision. These advocates have slowed or stopped GOP-led voter suppression in Pennsylvania, Florida, Virginia, and North Carolina that sought to discourage voting by people of color, young people, the poor and the elderly. The Justice Department used the VRA to help them.

The groups—Advancement Project,, Florida New Majority, North Carolina NAACP, Virginia New Majority—and others issuing press releases, promised to keep fighting. They called for a new federal constitutional amendment affirming voting rights. They pledged to work with Congress to rewrite the VRA’s enforcement formula. They promised to lobby even harder at state legislatures to stop voter suppression laws.

What they didn’t put front and center was doing what the Civil Rights Movement was known for—campaigning and turning out voters despite the odds. What’s needed is a new Supreme Court majority and a new congressional majority that actually would pass revisions to the Voting Rights Act that most Americans would want. What’s needed is a Senate that will confirm federal judges appointed by a Democratic president, instead of years of stonewalling. What’s needed are innumerable other fair-minded initiatives. 

The only way to get there is through the ballot box. That doesn’t start with reaching for the heavens with a new constitutional amendment, which has been introduced and gone nowhere in recent sessions of Congress. It starts with organizing first on the ground and talking to voters about regime change in Washington in 2014.

Twenty years ago, Republicans unexpectedly took back the U.S. House in midterms after the Democrats were seen as having the upper hand in 1990’s congressional redistricting. Today, the pendulum has swung the other way. It is true that Republicans in states once curtailed by the Voting Right Act—Texas, North Carolina, Florida, Mississippi, Alabama and elsewhere—are already taking steps to make it more difficult for people of color, students and poor people to vote in 2014.

Texas is imposing tougher voter ID rules and will seek to redraw district lines to dilute Latino representation. North Carolina is looking at a package of laws that will curtail weekend voting and take away tax breaks for parents if their kids vote while away at college. These affronts shouldn’t just prompt more ‘the sky is falling’ statements about the new Jim Crow, which they already have, or prompt promises to redouble civil rights lobbying in state capitols and Congress, which they have. 

These affronts could prompt a new electoral strategy. Part of that strategy is making the Supreme Court a target, and cultivating a sense that there are many more reasons to vote than just picking a president. Can the Democrats turn out 10 percent more voters than in past midterms?

Academics that have tried to access the party’s 2012 voter data say that the Democratic Party appears to be doing nothing with it—sitting on it—while the GOP is being far more active in its circles. What will it take to make 2014 a wave election? It could start with making the Supreme Court an issue and rallying cry and resurrecting campaign tactics from the heyday of the Civil Rights Movement—the very era that the Court’s rightwingers seek to dismiss as history. 


Steven Rosenfeld covers national political issues for AlterNet, including America's democracy and voting rights. He is the author of several books on elections, including Democracy Betrayed: How Superdelegates, Redistricting, Party Insiders, and the Electoral College Rigged the 2016 Election, to be published in March 2018 from Hot Books.


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