Tomorrow begins the confirmation hearings for Judge Brett Kavanaugh, President Trump’s nominee to fill Anthony Kennedy‘s seat on the Supreme Court. The Republican-controlled Senate will confirm him. When it does, conservatives will control the Supreme Court for the first time in a generation.
This is quite the reversal. A little over a decade ago, on the eve of Sandra Day O’Connor‘s retirement from the hallowed body, the court was comprised of four liberals (John Paul Stevens, David Souter, Ruth Bader Ginsberg, and Stephen Breyer), two moderates (Kennedy and O’Connor), and just three conservatives (Antonin Scalia, Clarence Thomas, and John Roberts). One or both of the moderates frequently sided with the four liberals to give them majority decisions. Even when George W. Bush appointed conservative Samuel Alito to replace O’Connor to make it four-four, a frustratingly liberal Kennedy, having spurned conservatives on numerous key issues — most notably LGBTQ and reproductive rights — lingered.
Thus, this rapid conservative takeover is a dramatic development, and, for liberals on the verge of finding themselves outnumbered on the bench — to say nothing of every other branch of the federal government and most state ones as well — it is a humbling one.
Still, in a country that’s voting comparably and perhaps even more Democratic at the national level, this development is also confusing. Consider the following facts:
- The court’s rightward transition since O’Connor’s retirement has occurred during the last three presidencies, which have been determined by the last five presidential elections.
- Of the last five presidential elections, Democratic candidates won the popular vote four times. One might think that this string of results allowed Democratic executives to appoint liberal judges.
- However, despite winning the popular vote four out of five times, Democrats only twice won the Electoral College.
- Both those wins came from Barack Obama, who twice won the popular vote and Electoral College. However, with nearly a year left in his presidency, he had his final Supreme Court nominee, Merrick Garland, denied a hearing by the Senate.
- That vacancy was then filled by President Trump, who did not win the popular vote.
- For Republicans to pull off that great swindle, one might conclude that the nation must have voted for a Republican Senate to check Obama and help Trump, right? Well, not exactly. Consider the last three Senate elections — 2010, 2012, and 2014, and — the combination of which have determined every seat in the Senate. Across those six years of elections, Democratic Senate candidates won about 102 million votes to the Republican candidates’ 97 million.
- Then, in 2016 (the election that chose one-third of the senators who have confirmed Gorsuch and soon Kavanaugh), Democrats won 51.3 million senate voters to Republicans 40.8 million. (They would still lead even after negating California’s wonky 2016 Senate election, where two Democrats became the finalists on the general election ballot.)
- Yet, though more Senate votes have been cast for Democrats across the country in the last six and eight years, Republicans hold a majority of the 100-seat Senate. They had 52 seats for Trump’s first Supreme Court nominee, and they still hold 51 now.
- The question must therefore be asked: if the president and Senate are the ones who determine Supreme Court justices, and the people keep voting for Democratic presidents and senators, how is it that Republicans are on the verge of taking over the bench?
The short answer: the Constitution.
The longer answer was partially discussed in Part 2 of my Electoral College evaluation. The Constitution props up the power of sparsely populated, rural states. It does so in a couple key ways:
- Every state gets at least three electoral votes. That number is determined by the number of a state’s senators and House members. Every state gets exactly two senators plus at least one House member, even if its only three citizens were the ones who filled those roles. Most infamously, Wyoming’s population of 586,000 nets them the minimum three electoral votes (one electoral vote per 195,000 residents), while California’s 39,250,000 earns them just 55 (one electoral vote per 714,000 residents). That means a Wyomingite’s vote for the presidency counts 3.6 times more than a Californian’s. To varying degrees, all the smaller states, which are typically more rural, enjoy this advantage. The result is a rural citizen’s increased ability to determine the presidency.
- Meanwhile and similarly, each state gets exactly two senators, no matter the state’s population. Wyoming’s 586,000 people, like California’s 39 million, send two senators to Washington. In this case, Wyoming’s citizens get 66 times more say in choosing senators than does California’s.
In the Senate’s counterpart, the House of Representatives — or what our founders considered the “people’s chamber” — things are a bit more democratic. Gerrymandering aside (which isn’t an inconsiderable loophole but not in this post’s purview), the House ties representational weight to population, so American citizens’ influence in electing the House is more democratic.
However, the House doesn’t get a say in the Supreme Court process. The President nominates, then the Senate advises and perhaps consents. That’s it. That’s the process.
The rural citizen, therefore, has outsized influence over five-sixths of the federal government: the Senate, the presidency, and, as a result of those first two, the courts.
I’m not saying the Constitution favors a party. Momentum for our political parties has long oscillated, with each party having stretches of political dominance. However, the Constitution does favor a type of voter — the citizen who lives in small states, and small states are usually rural, and rural citizens are usually conservative.
Note that so far I haven’t evaluated this model. I’m fairly certain all I’ve done is lay out the facts and their implications. I am starting to wonder, however, if this system will remain acceptable for much longer. As I said, momentum has shifted between the parties before, but there is evidence to suggest Republicans, if they remain the preferred party of the rural voter, might never give up this advantage.
For most of American history, we could forgive the founders for giving rural voters an oversized vote. That’s because, for most of American history, there were more rural voters than urban ones. Even as late as the 1940s, according to the U.S. Census, rural voters still made up half the American population.
Since then, however, rural America has dwindled to less than 20 percent of the population. This transition from rural to urban goes back a century and shows no signs of reversing:
The American landscape has totally transformed since the founders’ era. As urban areas continue to clump together, this is going to be a long-term disadvantage for urban voters. Recent projections from the University of Virginia’s Weldon Cooper Center for Public Service determined that by 2040, half the population of the U.S. will be found in just eight states. Politically speaking, that means half the population will be represented by only 16 of 100 Senate seats.
The effects on the Electoral College won’t be quite as undemocratic, but they will be unmistakable. The presidential voting-power of a rural citizens’ vote, already out of proportion, will continue to climb in comparison to an urban voter. It could be having a palpable effect already. We had a complete century (1896-1996) of presidential popular vote winners winning the Electoral College, but in just the five elections since then (2000-2016) the popular vote loser has won twice, and both came from the rural party. By 2040, a Democrat winning the popular vote and a Republican the Electoral College might be the safest bet in presidential politics.
And the pièce de résistance? This potential slip into perpetual Republican dominance can now be crystallized by this conservative takeover of the Supreme Court. Once Kavanaugh gives conservatives control of the bench, it’s likely that the court would rule conservatively on gerrymandering, voter ID, and, if given a chance, the above electoral disparities. These are three issues that, if ruled on liberally, would curb Republican momentum. Meanwhile, with Democrats fighting against gravity in presidential and Senate elections, it’d be difficult to ever again swing the court back to the left. When conservative 70-year-old Justice Thomas moves on, he’ll likely be replaced by a conservative, and when liberal octogenarians Ginsburg and Breyer leave the bench, so will they. Unless Democrats start winning more Senate elections soon, the 2016 election likely set up the permanent era of a conservative SCOTUS.
All considered, it’s increasingly clear that rural America, like a reborn Bacon’s Rebellion, is taking control of the federal government. What they’ll do with it remains to be seen, but liberals should brace themselves.
Remember when we were talking about an alleged child molester almost winning the Alabama special election? That feels like a decade ago. It’s been nine months!
In truth, there’s still a small advantage for the GOP in the House as well. In the past four elections, the Republican Party won more seats than they did share of the two-party vote. In 2012, remarkably, Democrats won more House votes than Republicans, but Republicans won 53.8 percent of House seats. The cause of these discrepancies: Democrats have a knack for running up the score in their district victories, while Republicans win more districts at smaller margins. This might seem innocent enough, but consider that the House makes national policy and maybe the people’s branch should reflect the will of the nation.
To be clear, it’s already a problem for them. In addition to the aforementioned Senate and Electoral College disadvantages, these demographical issues also partially explain why Democrats are struggling so badly at the local and state levels. Though nationally there are more Democrats than Republicans, Republicans outnumber Democrats in more states, albeit less populated ones. They therefore have an easier path to controlling state legislatures and governors’ mansions, which gives them the advantage when drawing federal districts and enacting voter requirements that favor their party.
Similarly, under the current model, it also feels inevitable that one day Americans will regularly cast more votes for Democratic Senate candidates but Republicans will still consistently control the Senate. Of course, a Constitutional amendment might one day re-calibrate the system, but guess how the Constitution gets an amendment…. It needs a two-thirds majority in each Congressional chamber, one of which is the rural-controlled Senate, and three-quarters of states legislatures, most of which are Republican and have small sizes that benefit from the current system. Remember, only eight states would control half the population, so it’s in the interest of most of the other 42 to maintain the status quo in the Senate and Electoral College.