The Republican-appointed majority of the U.S. Supreme Court has done a fairly good job of making decisions that have provided relatively short-lived political benefits to the GOP. But the majority seems to operate on the faulty assumption that conditions on the ground will forever remain the same, making it impossible for Democrats to overcome those decisions.
In fact, the Democratic Party has been able to largely negate the GOP advantage in two important instances — money and voting success. But the majority is now dabbling further into another area, partisan gerrymandering, in the case of Moore v. Harper, which was argued on Dec. 7.
When the majority issued its decision in the 2010 Citizens United case, opening up the floodgates for corporate and dark money contributions, Republicans celebrated because they had a decided cash advantage at the time. But it did not take long for the Democrats to catch and at times surpass the GOP in raking in the filthy lucre.
In the 2020 federal elections, Democratic candidates and groups spent $8.4 billion, compared with $5.4 billion for the Republicans. Dark money groups aligned with the Democrats spent over $1.5 billion, while those aligned with the GOP spent about $900 million. As we know, the Democrats won both the presidency and control of Congress.
The just-concluded 2022 elections produced a remarkable outcome for the Democrats for a midterm election. They added one Senate seat and held House Republicans to a narrow majority. Congressional spending exceeded $9.3 billion. Democratic candidates and groups outspent Republicans in the general election, although Republicans spent more overall because of costly primary contests.
So, while the Citizens United gift to the GOP was at first a boon, the worm seems to have turned. In the process, our system has been corrupted by the steadily increasing cash flow resulting from this ill-conceived, politically motivated decision.
The Supreme Court majority has also chipped away at the voting rights of minorities, who tend to favor Democratic candidates. In its 2013 Shelby County v. Holder decision, the majority crippled the provisions of the Voting Rights Act of 1965, which were designed to prevent former segregationist states from disenfranchising Black voters. Those states have since enacted numerous laws that restrict voting access in ways that have a disproportionate effect on racial minorities.
What the Court’s majority may not have anticipated is that many Black voters took extreme umbrage at the move to deprive them of their hard-won voting protections. By organizing and forming coalitions with like-minded voters, they have achieved unexpected success in overriding the voter-suppression laws in some states (think Georgia in the last two elections). Changing demographics, particularly the youth vote, which leans heavily toward Democrats and has become increasingly important in recent elections, promise to further level the playing field.
The Supreme Court’s majority ruled in 2019 that federal courts could no longer consider gerrymandering cases, a ruling that handed an advantage to the Republican Party. GOP legislatures were given a green light to draw congressional boundaries any way they liked following the 2020 census. The GOP now fully controls the governments of 22 states. But there are eight purplish states in which control of Congress can be decided by divided governments. Even where the GOP controls both houses of the legislature in those states, courts or governors can frustrate gerrymanders under state law.
The North Carolina Supreme Court invalidated an extreme gerrymander on state law grounds earlier this year, prompting the legislature to seek help from the Court’s majority. The lawmakers claim that the U.S. Constitution gives state legislatures, acting alone, the sole power to establish congressional boundaries.
At least four members of the Court’s majority voted to consider the case, Moore v. Harper, despite that the “independent state legislature theory” advanced by the legislature has no legitimate legal or historical support. Indeed, there is convincing argument in the case record that Congress has foreclosed the theory as it relates to drawing congressional districts.
The Dec. 7 argument did not go particularly well for the Court’s four political hardliners. Chief Justice Roberts pointed to a 1932 case, Smiley v. Holm, in which the Court upheld a gubernatorial veto of a legislative redistricting plan, pretty much blowing the theory out of the water. Justice Amy Coney Barrett also appeared skeptical. It is not clear how the case will turn out, but it does not appear that it will produce the GOP triumph that the hardliners had expected. Even if the Court were to adopt the theory, a compelling case can be made that the theory might well backfire on the GOP. The best outcome would be for Court to drop the case like a hot potato, saying review was improvidently granted.
The political track record of the Supreme Court majority is not particularly impressive. The majority has made some tactical decisions favorable to the GOP, but, as conditions have changed, the political benefits have diminished or disappeared.
On the negative side, those decisions have needlessly fanned the flames of political discord and sullied the Court’s reputation. The Court’s majority would be well advised to leave politics to the political branches of government and focus on advancing the rule of law.
Jim Jones is a Vietnam combat veteran who served eight years as Idaho attorney general (1983-1991) and 12 years as a justice on the Idaho Supreme Court (2005-2017). He is a regular contributor to The Hill.