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The Supreme Court’s Anti-Democratic Feedback Loop

The GOP installs Supreme Court justices over the will of voters. The Supreme Court helps the GOP remain in power. Rinse, repeat.

Brendan Smialowski/Getty Images

Between the failure of the latest reprehensible attempt to repeal the Affordable Care Act and Roy Moore’s win in the Alabama Republican Senate primary, this has been a rough week for Senate Majority Leader Mitch McConnell. But this week also brought a reminder of one of his most important coups: preserving a Supreme Court vacancy for Donald Trump. 

On Thursday, the Supreme Court agreed to hear Janus v. American Federation of State, County, and Municipal Employees, a case which will almost certainly gut public sector unions once it is decided. This will be a particularly stark example of the anti-democratic feedback loop that has allowed Republicans to maintain power despite a highly unpopular agenda, as unrepresentative institutions enable Republicans to make appointments or enact policies that further entrench their power.

In 1977, the Supreme Court held unanimously in Abood v. Detroit Board of Education that public employees represented by a union could charge non-members fees equivalent to dues in order to cover non–politically related activities. The Court’s logic defending “agency shops” remains sound. It rejected the argument that such fees violated workers’ First Amendment rights to free speech by empowering unions to speak for them. Instead, it found that these workers were asking to free-ride by getting the benefits of collective bargaining without sharing the expenses. But because the decision favored the interests of organized labor, it has long been a target of Republican legal operatives as the federal courts marched to the right, starting with the election of Ronald Reagan.

Indeed, Abood was very nearly overruled in 2016. In January of that year, the Court heard oral arguments in Friedrichs v. California Teachers Association, and after the arguments it was apparent that a 5-4 majority would use the case to rule that public sector agency shops violated the First Amendment, even if compelled dues could not be used for directly political activities. But after the unexpected death of Justice Antonin Scalia in March, the Court ended up deadlocked 4-4, leaving in place a lower court ruling refusing to overrule Abood.

Which brings us to McConnell. Had Barack Obama been able to appoint Scalia’s replacement, Abood would almost certainly have been safe in the short term. But McConnell successfully blockaded Obama from filling the Supreme Court vacancy. This gamble paid off in spades when Trump unexpectedly won the election, and nominated Federalist Society dream nominee Neil Gorsuch to the Court, where he was confirmed on a mostly party-line vote (with every Republican joined by three deep-red state Democrats). No wonder McConnell spent the last week touring his home state with Gorsuch, his critical political ally.  

There is virtually no question that Gorsuch, who is essentially a human manifestation of the most recent platform of the Republican Party, will vote to overrule Abood. Such a ruling will not materially advance anyone’s free speech rights, but will have a devastating effect on public sector unions, which is, of course, the point.

Not only would overruling Abood be substantively bad, but the process that led to it highly disturbing, with many of the worst features of American institutions combining to produce a Supreme Court majority the American people haven’t voted for.

First, Barack Obama, who won successive electoral majorities, was not able to nominate a replacement for Scalia because his party did not have a majority in the Senate, an institution that severely overrepresents rural conservatives. Republicans maintained their Senate majority in 2016 despite receiving far fewer votes overall. Then Donald Trump—despite losing the popular vote by a substantial margin—was selected president by an anachronistic electoral mechanism designed to limit democracy and overrepresent slaveowners.

As a result, Republicans have lost the popular vote in six of the last seven presidential elections, and yet, have a Supreme Court majority able to impose its vision on a national electorate that has consistently rejected it. And if one or more of the Court’s octogenarians or near-octogenarians resigns or is forced to leave the Court while Trump is president and Republicans control the Senate, Republicans could control the Supreme Court for decades.

And what’s worse is that Supreme Court Republicans have used the First Amendment to make American institutions less fair and representative. They have used the First Amendment to protect the nearly unfettered ability of wealthy individuals and corporations to influence elections. They are now poised to use it to reduce the power of organized labor, one of the few potential counterweights to corporate power. And instead of actively checking Republican attempts to overcome its unpopular agenda by suppressing the vote, the Roberts Court has actively contributed to Republican vote suppression efforts, even when it has had no remotely plausible basis in the text of the Constitution for doing so.

The coming decimation of public sector unions by the Supreme Court is part of a disturbing pattern—and it’s a problem that will get worse before it gets better, as the Court joins with other antidemocratic features of American government to stop majorities from expressing themselves.