Courting Disaster

The barn door to minority rule is wide open

Thanks to The Baffler for letting me repost this. Original (subscription required) here.

Antidemocratic: Inside the Far Right’s 50-Year Plot to Control American Elections by David Daley. Mariner Books, 432 pages. 2024.

I initially thought agreeing to review this book was a mistake. Did I need a treatise on the nation’s sickening slide toward one-party rule, thanks to the devolution of a judiciary that rigs our elections while routinely violating ethics standards, among other egregious offenses? After all, I get an hour of MSNBC every weeknight. Even for the jaded, however, it turns out David Daley’s account is interesting and enlightening. But still sickening.

Few pictures reveal more starkly how high public officials are in the tank, how blasé they are about their exposure, and how little can be done about it. The lede for Daley’s account could be summarized in the central, decisive role of the current Chief Justice, John Roberts, who emerges as the most evil personage in contemporary U.S. history. Donald Trump may come to supersede him, depending on this year’s presidential election and what follows, but Roberts has been far more consequential. In fact, to an important extent, we have Roberts to thank for Trump.

The deal with Trump, who doesn’t know jurisprudence from hair gel, is that in return for being bestowed with a conservative seal of approval, Trump effectively gave the Federalist Society carte blanche in judicial appointments. The judges tolerated Trump’s peccadillos, since they have lifetime appointments and would be around long after he left the White House. Roberts, however, has been playing the long game ever since he began a brilliant legal career in the Reagan Administration as a dedicated foe of the Voting Rights Act, working to destroy it in steady increments, until he ascended to Chief Justice and gained the benefit of the 5-4 majority fortified by the replacement of Sandra Day O’Connor with the equally evil—but less politically adept—Samuel Alito in 2006. Now thanks to Trump and weak-kneed Democrats, the right-wing margin is 6-3 and the barn door to minority rule is wide open. Three of that six-member majority were directly involved in engineering George W. Bush’s pilfer of Florida’s electoral votes, and the presidency, in 2000.

Roberts’s mortal sin is not that he is a conservative; it’s that he lies about his views and intentions with a virtuosity that would make Trump marvel in admiration. For decades, he’s masqueraded as a fair-minded, reticent moderate, describing his role as limited to “calling balls and strikes” as a neutral umpire. But reporting and the paper trail unearthed by Daley reveal Roberts, no less than Alito, to be a fanatical, demagogic, rightist partisan. To understand Roberts’s current sway, we need to consider the benefit afforded to his work by a well-articulated, sophisticated, elaborate legal philosophy that goes by the name “originalism.”

The conceit of originalism is that it purports to adhere to the literal text of the Constitution and the intentions of its authors, in contrast to the sin of legislating on the fly, according to one’s political biases, from the bench. In practice, Daley shows that originalism is just a dodge for right-wing judges to impose their own policy preferences or to replace the decisions of elected legislators, always for the sake of Republican electoral prospects. It is amusing to note, per Daley, that even Reagan SCOTUS nominee Antonin Scalia, considered the leading jurist of originalism, “didn’t really buy what he was selling.” Daley writes that Justice William Brennan declared that the pretense that originalist thinkers could divine the founders’ intent to be “little more than arrogance cloaked as humility.”

The core of originalism, which arose in the wake of Warren Supreme Court decisions pertaining to civil rights, is an obsession with race. The recent uproar over so-called “critical race theory” actually echoes very old arguments upholding purportedly non-racist neutrality in controversies over race. This provides a justification to blunt efforts to ameliorate the impacts of racism that entail policies aimed at directly assisting minorities. The justification in question is that such policies are themselves discriminatory and an exercise in favoritism. By appealing to data that demonstrates racist policy outcomes, efforts to combat discrimination exploit the device of racial quotas. Per Daley, there is a long sequence of decisions establishing this, chipping away at anti-discrimination efforts, bit by bit. Anti-racism is the real racism.

The central document in this trend was the infamous Powell memo of 1971—not a work of legal scholarship but a political tract. It has been an object of discussion among radical economists for some time. Lewis F. Powell Jr. was an elite southern attorney from Virginia, and chief counsel to tobacco giant Philip Morris. He made his professional bones demonstrating the fallacies of anti-smoking commentary and regulation. You get the picture. The memo issued a clarion call to U.S. business interests to get off their keisters and fight the ascendant left. It is supposed to have lit a fire under the Republican Party and helped to popularize neoliberal economic ideas. It certainly helped Powell, scoring him Richard Nixon’s nomination to SCOTUS scarcely months later—together with career, racist voter-suppressor William Rehnquist—in 1971.

Daley shows the memo had enduring impacts on judicial appointments and constitutional interpretation. It helped also germinate a network of institutions, including the Federalist Society for Law and Public Policy Studies, founded in 1982 to foster networking among ambitious right-wing law students; today it commands billions of dollars of resources, spins off a dizzying number of satellite groups, and supplies Republican presidents with the names of approved judicial nominees.

What caused Powell and Rehnquist? You could just as easily ask what caused Nixon. Daley lays the arousal of the further right with the New Left and Black Power, as well as popular support for consumer rights and rejection of “corporate values.” That sounds like weak tea to me. As far as revolution was concerned, I was circulating in radical ranks back then, and I can’t say it—or we—were any threat at all. We couldn’t have taken over New Jersey, let alone the United States. More to the point was the nascent threat of social-democratic reform that powered the civil rights movement and the big industrial unions of organized labor. The career of the activist Bayard Rustin—his misleading, recent biopic notwithstanding—was exemplary in this respect. These forces manifested themselves in the epic advances in domestic social reform during the Johnson Administration. We all know how that came to grief.

For Daley, the right-wing Thermidor and the entirety of what followed the establishment of originalism as legal canon was founded in racism. Not unlike some understandings of politics reflected in the 1619 Project discourse, racism is understood to be America’s original sin, what Daley calls the “galvanizing force” in U.S. history and, in more or less unchanging presence, it corrupts everything that comes after. This is what makes Daley’s account a liberal horror story.

It is true that a good part of the ongoing legal onslaught against the Voting Rights Act has been in defense of racially suspect moves pertaining to local governments. One example is the practice of annexing white neighborhoods to diminish the electoral power of black politicians. Another is instituting at-large electoral offices in jurisdictions where a white majority can prevail over residentially concentrated minority districts. The flood of such initiatives since 1980, once it became evident that they would fly past SCOTUS, has been ongoing. The regress is incremental but inexorable. The main constraints were political nervousness within the Reagan and Bush administrations about accusations of racial insensitivity, or worse. Now with Trump and the MAGA movement, along with a 6-3 right-wing majority on SCOTUS, such concerns have gone by the board. This is all as craven as it’s made out to be, but it does not explain the rise and fall of many white Democratic politicians throughout the South who were able to win statewide elections for governor and senator. Even in local elections, any decent-sized minority would in principle be available to competitive politicians to leverage their own followings. There are a few holes in Daley’s “antidemocratic” theme.

Why devote so much effort to suppressing the black vote for local governments? I’m prepared to be convinced that it comes down to irrational race hatred, but I suspect there is more to the story. One explanation is that a myriad of vote suppression measures at the local level, enabled by Roberts’s jihad against the VRA, have statewide impacts on Democratic vote capacities. If you can never vote for a winner in your local elections, your interest in national or state elections is likely to wane.

A controversy surrounding voting rights is the merit of sustaining majority-minority districts that facilitate the election of African Americans, as opposed to seeding a wider array of districts with black, likely Democratic, voters. The thrust of Daley is that the VRA has favored the former, but the consequence tends to bleach mostly white districts and favor the election of Republicans. To some extent there is a tradeoff between high-probability black elected officials in a limited number of districts, and more problems for Republican hopefuls in mixed districts. In the trade, the alternative techniques are known as “cracking and packing.” As Daley recounts, some Republicans have not been sure which outcome they prefer. In this respect, redistricting games are not entirely consistent. Anti-VRA maneuvers are diverse, opportunistic, decentralized, and consistently anti-black, but the techniques vary. Sometimes Republicans consolidate hostile voters in a limited number of districts, but sometimes they split majority-minority districts to preclude the election of black candidates. Examples of the latter cited by Daley are Asheville and Greensboro, North Carolina. Gerrymandering has been elevated to a fine art in that state.

My own meatball theory is that African American political stirring after World War II was a prelude to the nascent social-democratic aspirations underlying the civil rights movement and its victories under the SCOTUS of Earl Warren, and before that the Committee for Industrial Organization movement in the 1930s, and before that what W.E.B. DuBois called “abolition democracy” after the Civil War. It is that political economy which drives rightist, racist politics in the United States, anchored in the South, starting with the reversal of Black Reconstruction. As the confirmation votes for Powell, Rehnquist, Roberts, Alito, and Scalia attest, elite Democrats are not especially welcoming of the prospects of mass left-wing mobilization themselves. When Amy Coney Barrett was nominated by Donald Trump and went before the Senate Judiciary Committee for questioning, the first thing the late California senator Dianne Feinstein asked was for Barrett to introduce her family.

Anti-racism can take on insipid, counter-productive forms, as discussed ferociously by writers like Adolph Reed, but alternatively it can reflect a serious threat to capitalism as we know it. Daley’s history oversimplifies the significance of race in the greater evolution of U.S. politics. It glosses entirely over class. That is its liberal bias. There is more going on here than re-segregation.

The fruits of the antidemocratic campaign are evinced frequently these days. As this review was being written, a decision by a Federalist Society/Trump-appointed judge squelched an administrative move by the Consumer Financial Protection Board to cap late fees on credit cards. There is nothing overtly racial about this move, but its implications in terms of class are obvious. Broadly speaking, the accretion of SCOTUS decisions eviscerating the VRA, facilitating unregulated campaign finance, and packing the judiciary is helping to cement Republican control of everything. The manifest anti-black/anti-Hispanic racism obscures the underlying drive to indulge increasing economic inequality.

If Trump fails to win the election this November, we could see the emergence of another originalist theory that Daley shows to have been germinating in right-wing legal circles, the so-called “independent state legislature” theory, which culminates in the ability of state legislatures to ignore the popular votes in their own states and decide to which candidate the state’s electoral votes should be awarded. This fear could prove unjustified in light of the Supreme Court’s rejection of the theory last year and Roberts’s record of gradual movement, albeit toward retrograde objectives.

Reconstruction was reversed by a terrorist campaign waged by Confederate remnants who had escaped accountability for their treason. Today the methods are lower-key. History doesn’t repeat itself, but it rhymes. Trump’s campaign is gearing up to besiege the administration of this November’s election through the use of armed goons posing as election observers. These will be mobilized in precincts with heavy proportions of Democratic voters. Voting will be disrupted, even immobilized, when votes have not been suppressed in advance through voter ID requirements, purges of voter rolls, threats of arrest for those accused of voting illegally, unannounced changes of polling places, and discards of ballots with minor filing errors and late postmarks.

Given the thin margins in 2020 and 2016 in battleground states, small, well-targeted vote suppression can have outsize impacts. It could end up in court, but that will be the end of the story.