A Historic SCOTUS Confirmation Underscores the Court’s Importance
The Democracy Dispatch (Edition #44)
Hello again! Yesterday, Judge Ketanji Brown Jackson became the first African American woman to be confirmed as a Supreme Court justice. In honor of her historic confirmation, this week we will dig into the role that the Supreme Court has played in our democracy in the past decade. As we’re sure you know, the Court has ruled on a number of election cases over the past decade with major implications (often profoundly negative). As always, at the end of this Substack we include a number of useful articles about democracy in America right now.
Before beginning our look into the Supreme Court, some more legal news: A federal judge in Florida overturned significant portions of the Florida anti-voter law that was passed last year. While the judge’s ruling will almost certainly be overturned by higher courts, including the Supreme Court, this ruling was a strong rebuke to the recent wave of anti-voter laws. Read more about the ruling here.
A Historic Confirmation
Before yesterday’s final vote, Judge Ketanji Brown Jackson, who serves on the U.S. Court of Appeals for the D.C. Circuit, faced two “grueling” days of questioning by the Senate Judiciary Committee. While Democrats mostly asked her about her extensive legal experience, Republicans used the hearing to launch racially coded attacks against her and share their opinion on current cultural issues such as critical race theory. The Senators’ treatment of Judge Jackson was so out-of-line that even Senator Joe Manchin criticized their behavior as “disgraceful.”
On April 4th, the Senate Judiciary Committee voted on whether or not to move forward with Judge Jackson’s confirmation to the Supreme Court. The vote split along partisan lines 11-11. This tied vote meant that the Democrats had to engage in the extra procedural steps of filing a discharge petition and holding a floor vote to move the confirmation out of committee. Only after the confirmation leaves the committee can the entire Senate weigh in on the matter.
These procedural votes led to yesterday’s vote, wherein the Senate confirmed Judge Jackson 53-47. This outcome was all but assured after both key moderate Democrats and Republicans announced their support for her ascension to the Court.
Throughout American history, the Supreme Court has been one of the least diverse institutions in the country. Justice Jackson, as the first Black woman Justice, serves not only to mark history, but, as we will explain below, will also be a valuable voice on the United States Supreme Court.
What will this mean for voting rights?
Judge Jackson’s confirmation will not change the ideological makeup of the Supreme Court. Judge Jackson is replacing fellow liberal Stephen Breyer, so the conservative justices will continue to outnumber liberal justices 6-3 on the Court. Judge Jackson therefore will not stem the anti-voter tide of the current Court. She will, however, have a chance to write strong dissenting opinions if and when future voting cases arise.
If you want more information about her specific views on voting rights, Senator Padilla (D-CA) asked her about her judicial views on voting rights and Native American Tribal rights. You can read an excerpt of the exchange here.
Why do we care about the Supreme Court?
It goes without saying that the Supreme Court plays a major role in the shape our democracy takes.
The Court interprets the constitutionality of the election laws passed in the states and by Congress. So if they interpret the law in a certain way or deem it unconstitutional, it will have significant consequences — not only in how the law is applied, but also in the ability of future generations to experiment with policy. This is what we see again and again. Through the cases the Court chooses to review and the decisions it hands down, the rules of elections are altered and the tools we have to advance our democracy either expand or shrink.
The Court has a growing influence over our policies, including voting rights, in large part because the federal government has been unable to legislate effectively due to gridlock. As Congress sits on its hands, the Supreme Court strikes at laws, such as the Voting Rights Act. And while the Court gives Congress a chance to update the law they struck down, the gridlock prevents any congressional action. The Supreme Court then shapes election rules with no say from the people.
Over the last decade, the Court, with its conservative tilt, has issued a number of rulings weakening our democracy. These range from major cases that you may have heard about to lesser known minor rulings that make our work so much harder. Below, we compiled the three most significant cases affecting our democracy.
Citizens United v. FEC (2010)
More commonly known as Citizens United, this case was, in short, the case that allowed for out-of-control independent and corporate spending in almost every major election after it was issued.
The story behind the 2010 ruling actually began during the primary presidential election of 2008. In 2008, the conservative group Citizens United created a documentary film called Hillary: The Movie, which was highly critical of then-presidential candidate Hillary Clinton. Citizens United wanted to air the documentary close to the primary election, which was in violation of the Bipartisan Campaign Reform Act of 2002, otherwise known as the McCain-Feingold Act. The BCRA prohibited corporations, labor unions, and other nonprofits from directly funding electioneering communications, which included a ban on corporations and unions funding advertisements about specific candidates less than 60 days before a general election and less than 30 days before a primary election.
Citizens United understood that their documentary would violate key parts of the BCRA, so they asked the court for an injunction to prevent the FEC from enforcing the BCRA. Citizens United argued that the BCRA’s restrictions on corporate electioneering broadcasts were unconstitutional and violated the First Amendment’s guaranteed right to free speech. The court cases around this issue eventually made it to the Supreme Court in 2010, and, after a bizarre request to re-hear the case to expand the constitutional questions at issue, the Court narrowly sided with Citizens United, effectively ruling key provisions of the BCRA were unconstitutional. The ramifications were massive. This 5-4 decision held that corporations had a right to spend unlimited amounts of money on elections so long as it was independent of and not in coordination with candidates.
This decision had two disastrous effects for American democracy. First, as stated, it allowed corporations to spend unlimited amounts of money on election-related (independent) expenditures, with money that comes directly from their own treasury. This means that companies like Pfizer or Wal-Mart could, if they wanted, spend as much money as they want on ads telling you to vote for or against a certain candidate, again, so long as they do not directly coordinate with that candidates’ campaign (a threshold that is incredibly easy to meet).
Citizens United also led to the explosion of dark money groups. These groups (under the tax code as 501(c)(4)) had existed before Citizens United, but campaign regulations prohibited them from explicitly telling voters to vote for or against someone. Under Citizens United, 501(c)(4)s were no longer subject to those restrictions, so they could spend money on electioneering communications just like most other entities. The key difference that makes these groups so insidious? 501(c)(4)s are not regulated by the FEC, but by the IRS. That means that they do not have to disclose who gave them money and how much they received. In short, when 501(c)(4)s tell you who to vote for, they don’t have to tell you who is behind their messaging. Thus, it’s “dark” money.
Not surprisingly, in the years after the Citizens United decision we saw a huge increase in the amount of outside spending in elections
In one narrowly-decided ruling, the Supreme Court threw away decades of precedent of regulating how money is spent in elections, and gave corporations and billionaires unchecked power to influence elections. And in a subsequent federal court ruling, Super PACs were created. But that's the story for another Substack.
Shelby County v. Holder (2013)
Be warned: This is one of the most egregious rulings in modern American history.
In Shelby v Holder, the Supreme Court gutted Section 5 of the 1965 Voting Rights Act. Section 5 of the Voting Rights Act required jurisdictions with a history or racial discrimination to submit changes in voting laws and district maps to the Federal Department of Justice for review. The DOJ or a federal court would then review the submission and rule whether the proposed change would be racially discriminatory. This is a process known as preclearance and it was one of the most successful civil rights policies ever implemented.
The formula that determined which jurisdictions were required to get preclearance was established in Section 4 of the Voting Rights Act. In a 5-4 ruling, the conservative Supreme Court ruled that this preclearance formula was outdated and that it could not be used. This prevented the further usage of preclearance (Section 5) until Congress updated it (which would be subject to further Court review). This was a devastating outcome for American democracy. Chief Justice John Roberts claimed that times have changed in America and that preclearance was an unnecessary burden. In one of her most scathing dissents, Justice Ruth Bader Ginsberg had this to say about the decision:
“Throwing 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.”
Ginsberg was unfortunately correct; within hours of Shelby County states moved to restrict the right to vote and the federal government could do little to stop it.
Since the ruling, voting rights advocates have been pushing Congress to pass an update to the Voting Rights Act, in the form of the John Lewis Voting Rights Advancement Act. This bill would establish a new formula to determine which jurisdictions fall under preclearance, based on recent histories of voter suppression laws and maps. However, the Senate refused to pass the bill earlier this year thanks to the filibuster.
Rucho v. Common Cause (2019)
Every ten years, states redraw their congressional and state legislative maps based on changes in population reported in the Census. This ensures that districts evolve and remain equal as populations grow or decline. As long time readers know, the redistricting process is plagued by state politicians using their powers to draw maps that favor their own party and supporters. This is called gerrymandering and it renders countless districts completely uncompetitive.
For years, reformers have tried to rein in gerrymandering, especially as the practice became particularly egregious after 2010 when Republicans expertly manipulated maps. Momentum even began building in federal courts to strike down gerrymandered maps. However, in 2019, the Supreme Court, in a case called Rucho v. Common Cause, ruled (in another 5-4 decision) that federal courts were no longer allowed to weigh in on partisan gerrymandering. In other words, the Court left the job of finding a solution to partisan gerrymandering to Congress, the states, and state courts. This closed off one of the most promising pathways to ending partisan gerrymandering across the country.
This case was a major blow to democracy reformers. The Court could have unilaterally disarmed the parties and ended the stain of gerrymandering on democracy. Instead the Court made gerrymandering worse.
The new redistricting cycle is almost over. It’s clear that Rucho v. Common Cause emboldened partisan actors to draw highly favorable maps for their political party. Across the country, we see egregiously drawn maps that undermine the will of voters. If there is any solace, it's that state courts have played an important role in striking down partisan gerrymanders. Earlier this year, Congress had a chance to stop the worst congressional gerrymandering through the Freedom to Vote Act but the Senate filibuster once again blocked progress.
Further Reading:
Black voters suffer another significant loss in the Supreme Court | Vox
Opinion: The case for 100 percent democracy by E.J. Dionne Jr. and Miles Rapoport | Washington Post
As maps fall, GOP tries to neutralize state supreme courts | AP News
Bonus: Why redistricting has stalled in 4 unfinished states | POLITICO
Don’t forget to keep your friends, family, and colleagues in the loop by sharing this Substack with them.
More About Us:
Kevin Rissmiller is a fellow at Equal Citizens and a Goodwin-Niering Scholar at Connecticut College majoring in Government and double minoring in sociology and economics. In his free time, you will find him at Dunkins or playing ultimate frisbee. Connect with him on LinkedIn.
Kate Travis is a fellow at Equal Citizens and a senior at Harvard studying History and Literature with a minor in Government and a citation in Spanish. When she is not writing about democracy, Kate spends her time running, drinking coffee, and watching bad rom-coms with her friends. Follow her on Twitter.
If you want more updates on voting rights from Equal Citizens, then subscribe here!