The injustice of the Supreme Court
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RULE BY THE FEW
An oligarchy is, by Aristotle’s definition, the rule over the many by the few. There have been plenty of well-reasoned arguments and data-driven studies that the U.S. is ruled by an oligarchy of the wealthiest 1% of Americans and top business interests. Less-acknowledged is the obvious oligarchy right before our faces: Nine individuals appointed to lifetime positions on the highest court of the land with virtually unlimited power over the 330 million people in the country. Eight out of the nine attended an Ivy League school and all have a net worth of over a million dollars, with the portfolios of four exceeding five million dollars.
We can ask how nine people ended up with control over the lives of hundreds of millions but the answer is, again, the rule over the many by the few. Despite being called “the greatest deliberative body in the world,” the U.S. Senate is undemocratic and biased in structure. The fact that each state gets two senators, no matter the population of said state, violates important democratic norms like majority rule, fair representation, and one-person/one-vote. California’s 40 million residents get to elect two senators, but the state right next door, Nevada, gets the exact same representation for 3 million residents. A vote in Nevada is worth 13 times as much as a vote in California.
The result of misrepresentation in the Senate is a bias towards small population states, which tend to be overwhelmingly rural, white and conservative. Over-representing these small states means over-representing the Republican party. On average, each Democratic senator in the 2018 midterms won 30% more votes than each Republican senator. Yet, the Republican party controlled the Senate 53-47. At its worst, the Senate’s structure enables residents of the smallest population states that represent only 17% of the U.S. to elect 51 senators and rule over 83% of us. The existence of the filibuster only deepens minority rule: 42 senators from the smallest states representing only 10% of the population can block legislation favored by 90% of America.
The Senate’s minority rule leads directly to the Supreme Court’s super-minority rule. Less-populated conservative states have much more say over who is confirmed to the most powerful body in the nation, with the ability to review and declare unconstitutional both executive and legislative policies. For example, the Senate Republicans who blocked President Obama’s nominee to the Court, Merrick Garland, represented 20 million fewer people than the Democrats who supported him. Neil Gorsuch, President Trump’s first Supreme Court nominee, was opposed by 45 Democratic Senators representing 25 million more Americans than the 55 Republican Senators who supported him. Brett Kavanaugh was approved by Senators who represented only 44% of the American public and Amy Coney Barrett was approved by Senators representing 14 million fewer Americans than those opposing her.
The power of minority rule goes farther than the Senate: Five out of the nine justices were appointed by presidents that lost the popular vote. Chief Justice Roberts and Samuel Alito were appointed by George W. Bush, who lost the popular vote in 2000 (and only won the election thanks to the Supreme Court). Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett were appointed by Donald Trump, who won the 2016 election despite losing by over 2.8 million votes. The ascension of unpopular presidents is a result of the Electoral College, which violates the ‘majority rules’ principle of democratic elections and allows a specific few states, called battleground states, to dominate the electoral process.
In sum, every step of becoming a Supreme Court justice is determined by a minority of voters. From the president who chooses the nominee to the Senate who confirms a justice to the bench. These justices then have unparalleled power to determine the rights 330 million Americans have—and, crucially, the rights we do not have.
VOTING RIGHTS AND GERRYMANDERING
With the release of the Supreme Court’s Dobbs v. Jackson Women’s Health Organization opinion overturning Roe v. Wade, the logical place to start answering how we got here is voting rights. Why? Because, as Justice Samuel Alito wrote, Dobbs “return[s] the issue of abortion to the people’s elected representatives.” This would be true if the elected representatives weren’t given the green light by the Supreme Court to rig the game, preventing the full electorate from showing them the door. State legislatures can choose their voters, can oppress the opposition, and ensure that they are not representative of the population as a result.
Crawford v. Marion County Election Board (2008): The Supreme Court voted 6-3 to uphold voter ID laws as constitutional. Justice John Paul Stevens (Ford appointee) wrote for the plurality that Indiana’s legitimate state interest in preventing voter fraud outweighed the burden on voters’ right to vote. Justice David Souter, joined by Ruth Bader Ginsburg, dissented, arguing that Indiana had the burden of producing actual evidence of the existence of fraud, something he felt the state did not accomplish.
Shelby County v. Holder (2013): The Supreme Court ruled 5-4 to throw out the formula that determines which states must have changes to voting procedures cleared by the Department of Justice. Chief Justice Roberts, writing for the majority, claimed that “no one can fairly say that it shows anything approaching the ‘pervasive,’ ‘flagrant,’ ‘widespread,’ and ‘rampant’ discrimination that faced Congress in 1965, and that clearly distinguished the covered jurisdictions from the rest of the nation.” Justice Ginsburg, joined by Breyer, Sotomayor, and Kagan, wrote that “[t]hrowing out preclearance when it has worked and is continuing to work to stop discriminatory changes is like throwing away your umbrella in a rainstorm because you are not getting wet.”
The Atlantic: The results have been predictable. Voter-identification laws, which experts suggest will make voting harder especially for poor people, people of color, and elderly people, have advanced in several states, and some voting laws that make it easier to register and cast ballots have been destroyed. For many of the jurisdictions formerly under preclearance, voting became rapidly more difficult after the Shelby County decision, particularly for poor and elderly black people and Latinos…looking deeper, it might be even more appropriate to say that the Shelby County v. Holder decision committed violence against the Fourteenth Amendment itself, of which the Voting Rights Act is a distant descendant.
Husted v. Randolph Institute (2018): The Supreme Court ruled 5-4 upholding the practice of voter caging, where a locality sends mass direct mailings to registered voters and purges those whose mailing is returned undeliverable. The law, as Justice Sotomayor notes in her dissent, “disproportionately affected minority, low-income, disabled, and veteran voters.”
Brnovich v. Democratic National Committee (2021): The Supreme Court ruled 6-3 to uphold regulations requiring out-of-precinct ballots to be entirely discarded and prohibiting anyone but a voter’s family member or caregiver from returning early ballots for another person. In doing so, the Court rewrote the law that applies to lawsuits under Section 2 of the Voting Rights Act of 1965, focusing on factors never before considered in these cases, such as whether a state provides more opportunities to vote now than most states did when Section 2 was last amended in 1982. This means it will be even more difficult for voting rights advocates to challenge discriminatory voting laws.
Justice Kagan, dissent: “What is tragic here is that the Court has (yet again) rewritten — in order to weaken — a statute that stands as a monument to America’s greatness, and protects against its basest impulses. What is tragic is that the Court has damaged a statute designed to bring about ‘the end of discrimination in voting.'”
Abbott v. Perez (2018): The Supreme Court ruled 5-4 to overturn both trial and appellate court findings that Texas’ 2010-cycle redistricting maps violated the Voting Rights Act of 1965 (VRA) by diluting minority votes and using racial gerrymandering to define the new districts. In doing so, the Court reworked the process for determining violations of Section 2 of the VRA, making the voters prove that “the legislature intended to discriminate when it enacted the current plan.”
Justice Sotomayor, dissent: [The majority’s] disregard of both precedent and fact comes at serious costs to our democracy. It means that, after years of litigation and undeniable proof of intentional discrimination, minority voters in Texas—despite constituting a majority of the population within the State—will continue to be underrepresented in the political process.
Rucho v. Common Cause (2018): The Supreme Court ruled 5-4 that “partisan gerrymandering claims present political questions beyond the reach of the federal courts.” Chief Justice Roberts, writing for the majority, said that individual states have the power to decide whether partisan gerrymandering is allowed. Justice Kagan, joined by Ginsburg, Breyer, and Sotomayer, dissented: “Of all times to abandon the Court’s duty to declare the law, this was not the one. The practices challenged in these cases imperil our system of government.”
Merrill v. Milligan (2022): The Supreme Court issued a 5-4 shadow docket order allowing Alabama to use maps for the 2022 election that lower courts found to be unconstitutionally racially gerrymandered. In doing so, the Court invoked the Purcell principle to reason that four months away from a primary election is not enough time for state legislatures to draft new maps.
Citizens United v. FEC (2010): The most consequential Supreme Court ruling, perhaps in American political history, came in the form of 2010’s Citizens United v. Federal Election Commission. Citizens United, a conservative non-profit organization, sought to air and advertise a film critical of then-Democratic presidential candidate Hillary Clinton ahead of the 2008 primary. Advertising the film would have been a violation of the 2002 Bipartisan Campaign Reform Act, so the organization filed a lawsuit to challenge the law.
A 5-4 majority of the Supreme Court sided with Citizens United, ruling that corporations and other outside groups can spend unlimited money on elections. Justice Anthony Kennedy, writing for the majority, found that limiting “independent political spending” from corporations and other groups violates the First Amendment right to free speech. In the process, the Court overturned Austin v. Michigan Chamber of Commerce (1990), which had allowed different restrictions on speech-related spending based on corporate identity, as well as a portion of McConnell v. FEC (2003) that had restricted corporate spending on electioneering communications.
Columbia University Magazine: Who has benefited from the influx of cash? Overwhelmingly, the Republican Party, according to new research by Columbia political scientist Carlo Prato…the researchers found that in the twenty-three states that formerly restricted corporate and union political spending, Republicans have won a three-to-four-point greater share of the vote since 2010 than would otherwise have been expected, given national voting trends. Not surprisingly, this appears to have won the GOP many tight races: the party’s share of legislative seats in these states has jumped by an average of 5 percent.
Arizona Free Enterprise Club’s Freedom Club PAC v. Bennett (2011): The Supreme Court ruled 5-4 against campaign finance laws that supplement publicly financed candidates once they were outspent by privately financed opponents. “Arizona’s matching funds scheme substantially burdens political speech,” Chief Justice Roberts wrote for the majority.
McCutcheon v. FEC (2013): The Supreme Court ruled 5-4 to abolish aggregate federal campaign contributions. Before the ruling, individuals were prohibited from giving more than $48,600 combined to all federal candidates and, also, prohibited from giving more than $74,600 combined to all parties and political action committees. Chief Justice Roberts, writing for the majority, stated that “the government may no more restrict how many candidates or causes a donor may support than it may tell a newspaper how many candidates it may endorse.”
Justice Breyer, dissent: The court’s opinion “creates a loophole that will allow a single individual to contribute millions of dollars to a political party or to a candidate’s campaign. Taken together with Citizens United v. Federal Election Comm’n, 558 U. S. 310 (2010), today’s decision eviscerates our Nation’s campaign finance laws, leaving a remnant incapable of dealing with the grave problems of democratic legitimacy that those laws were intended to resolve.”
RELIGIOUS FREEDOM AND SEPARATION OF CHURCH AND STATE
In the hands of modern conservatives, “religious freedom” has morphed from the right of all Americans to worship freely under a neutral government into a phrase that connotes rights only for the Christian faith. No longer is religion kept separate from the state; it is used as cover to allow discrimination against any individuals and causes that the Christian faith finds objectionable or distasteful.
Burwell v. Hobby Lobby Stores, Inc. (2013): The Supreme Court ruled 5-4 that employers cannot be required to cover contraceptives like Plan B and hormonal IUDs for their female employees. Justice Alito, writing for the majority, reasoned that “protecting the free-exercise rights of corporations…protects the religious liberty of the humans who own and control these companies.” Justice Ginsburg, joined by Breyer, Sotomayor, and Kagan, noted that “[u]ntil this litigation, no decision of this Court recognized a for-profit corporation’s qualification for a religious exemption from a generally applicable law,” and that such an exemption in this case would “deny legions of women who do not hold their employers’ beliefs access to contraceptive coverage.”
Town of Greece v. Galloway (2014): The Supreme Court ruled 5-4 that town governments may open meetings with religious prayer as long as the practice is consistent with the tradition long followed by Congress and state legislatures. Justice Kagan, in dissent, wrote that the town’s practice of focusing almost exclusively on Christian ministers violated the “First Amendment’s promise that every citizen, irrespective of her religion, owns an equal share in her government.”
Masterpiece Cakeshop v. Colorado Civil Rights Commission (2018): The Supreme Court ruled 7-2 that the Colorado Civil Rights Commission expressed impermissible hostility to religion by questioning “the sincere religious beliefs” of a baker who refused to create a cake for a same-sex wedding.
Erwin Chemerinsky, in the American Bar Association’s Human Rights Magazine: …for decades, the law has made the choice that ensuring equality is worth sacrificing the liberty to discriminate. Put in constitutional terms, ending discrimination is a compelling government interest. Enforcing antidiscrimination laws thus should not be seen as a violation of free exercise of religion or freedom of speech.
American Legion v. American Humanist Association (2018): The Supreme Court ruled 7-2 that longstanding religious monuments—specifically a World War I memorial cross on government land—do not violate the Establishment Clause because they may have had a secular original purpose. “That the cross originated as a Christian symbol and retains that meaning in many contexts does not change the fact that the symbol took on an added secular meaning when used in World War I memorials,” Justice Alito wrote for the majority. Justice Ginsburg wrote in the dissent that the Peace Cross unconstitutionally “elevates Christianity over other faiths, and religion over non religion.”
Espinoza v. Montana Department of Revenue (2020): The Supreme Court ruled 5-4 that religious schools cannot be excluded from school choice programs. “Today’s ruling is perverse, Sotomayor wrote in the dissent. “Without any need or power to do so, the Court appears to require a State to reinstate a tax-credit program that the Constitution did not demand in the first place.”
CIVIL RIGHTS AND CRIMINAL JUSTICE
Connick v. Thompson (2011): The Supreme Court ruled 5-4 that prosecutors cannot be held liable for damages when they violate the law to deprive a person of a fair trial. The case involved John Thompson, an African American father of two who was wrongfully convicted of robbery and murder due to the prosecutor’s office hiding a blood test that proved his innocence. After nearly two decades of wrongfully being imprisoned, Thompson was released and sued the district attorney, winning $14 million. Justice Thomas, writing for the majority, overturned the award by arguing that there was no evidence of a pattern of misconduct.
Salinas v. Texas (2013): The Supreme Court ruled 5-4 that a person under police questioning must expressly invoke the Fifth Amendment privilege; otherwise, prosecutors can use a person’s silence during questioning as “proof” of their guilt. Justice Breyer, writing for the dissent, noted that the Court has previously held that “no ritualistic formula is necessary in order to invoke the privilege.” Breyer continued, “How can an individual who is not a lawyer know that these particular words are legally magic?”
Heien v. North Carolina (2014): The Supreme Court ruled 8-1 that police officers who make “reasonable” mistakes of law and conduct searches on that basis do not violate the Fourth Amendment. In the case, a police officer claimed to believe that a single broken brake light was reason to institute a traffic stop in North Carolina, which then led to a search of the vehicle and drug charges. State law, in reality, did not hold that a single dysfunctional brake light was a traffic violation.
Utah v. Strieff (2016): The Supreme Court ruled 5-3 that evidence obtained from an unlawful police stop cannot be excluded from court when the unlawful stop led to the discovery of an outstanding warrant. Justice Sotomayor dissented, writing “this case tells everyone, white and black, guilty and innocent, that an officer can verify your legal status at any time. It says that your body is subject to invasion while courts excuse the violation of your rights. It implies that you are not a citizen of a democracy but the subject of a carceral state, just waiting to be cataloged.”
Edwards v. Vannoy (2021): The Supreme Court ruled 6-3 against retroactively applying its 2020 Ramos v. Louisiana ruling that a criminal defendant in state court as well as in federal court has a Sixth Amendment right to a unanimous jury verdict. The case involves Thedrick Edwards, an African American man, who was convicted of numerous serious crimes in Louisiana by a non-unanimous jury in Louisiana prior to Ramos. On each charge, Mr. Edwards was found guilty “over the lone Black juror’s vote to acquit.”
Justice Kagan: For the first time in many decades, those convicted under rules found not to produce fair and reliable verdicts will be left without recourse in federal courts…I would accept the consequences of last Term’s holding in Ramos. A decision like that comes with a promise, or at any rate should. If the right to a unanimous jury is so fundamental—if a verdict rendered by a divided jury is “no verdict at all”—then Thedrick Edwards should not spend his life behind bars over two jurors’ opposition.
Egbert v. Boule (2022): The Supreme Court ruled 6-3 that immigration enforcement agents cannot be sued for violating an individual’s Fourth Amendment rights.
Vega v. Tekoh (2022): The Supreme Court ruled 6-3 that a person cannot sue a police officer under federal civil rights laws for violating their Fifth Amendment by failing to provide a Miranda warning. “The point of § 1983 is to provide such redress—because a remedy ‘is a vital component of any scheme for vindicating cherished constitutional guarantees,’” Justice Kagan wrote in dissent. “The majority here, as elsewhere, injures the right by denying the remedy.”
Glossip v. Gross (2015): The Supreme Court ruled 5-4 that the use of unreliable drugs, which may cause pain and suffering, in lethal injection protocols does not violate the Eighth Amendment (prohibiting cruel and unusual punishments). Writing for the majority, Alito explained that the Eighth Amendment requires prisoners to show there is a known and available alternate method of execution. The alternative drugs the prisoners proposed were unavailable to Oklahoma due to drug manufacturers’ refusal to manufacture and sell drugs meant to be used in executions; therefore, Alito reasoned, the court must side with the state.
Justice Breyer: “…under the Court’s new rule, it would not matter whether the State intended to use midazolam, or instead to have petitioners drawn and quartered, slowly tortured to death, or actually burned at the stake: because petitioners failed to prove the availability of sodium thiopental or pentobarbital, the State could execute them using whatever means it designates.”
Bucklew v. Precythe (2019): The Supreme Court ruled 5-4 that a prisoner who had a medical condition that would cause him to suffocate on his own blood from the lethal injection cocktail was not protected by the Eighth Amendment. Justice Gorsuch, writing for the majority, stated that the Eighth Amendment “forbids ‘cruel and unusual’ methods of capital punishment but does not guarantee a prisoner a painless death.”
There are many other instances of the Supreme Court allowing the execution of individuals who either (1) have strong innocence claims or (2) have strong mitigating factor claims, including Hamm v. Reeves (2022) and Shinn v. Martinez Ramirez (2022). There are just as many, if not more, examples of the Supreme Court refusing to even hear the cases of death row inmates in the first place.
LABOR AND CONSUMERS
Epic Systems Corp. v. Lewis (2018): The Supreme Court ruled 5-4 that an employer can require its employees, as a condition of keeping their jobs, to submit to individual arbitration of wage-and-hour and other workplace-condition claims. The inability for employees to take collective action allows employers to be less accountable to employees, and deters employees from taking the time, cost, and effort needed to resolve individual arbitration, effectively silencing their concerns.
Janus v. AFSCME (2018): The Supreme Court ruled 5-4 that public employees do not have to pay fees to unions to cover the costs of collective bargaining, overturning 41 years of precedent and weakening unions.
Seila Law LLC v. Consumer Financial Protection Bureau (2020): The Supreme Court ruled 5-4 that the president (Trump, at the time) may fire the director of the Consumer Financial Protection Bureau, an independent agency responsible for consumer protection, without cause.