East SBV Times

The case is reminiscent of civil rights battles in a long-ago era: Alabama’s Republican lawmakers, drawing seven new congressional districts in 2021, split the state’s broad “Black belt” among four districts. Though Black citizens account for 27 percent of the state’s population, they would be a minority in every district but one.

Voting rights advocates sued the state, arguing that the districts illegally diluted Black political power. Lower courts agreed, and ordered the legislators to draw more equitable maps before the 2022 midterm elections.

But when the U.S. Supreme Court took the case, the conservative majority allowed the maps to stand, pending a full review this spring. Last November, white Republican men won six of Alabama’s gerrymandered districts, leaving the last seat to a Black woman.

For many legal analysts nationwide, including some at the UC Berkeley School of Law, the high court’s intervention was the latest in a series of recent rulings that are jeopardizing core standards of democracy. In the span of less than 15 years, they say, an increasingly conservative court has eroded limits on campaign donations and hollowed out the monumental Voting Rights Act of 1965. Last year, the court’s six conservative justices seemed to embrace conservative Christian doctrine in decisions that limit abortion rights and advance public school prayer. 

“At a time when our country is so politically polarized, the Supreme Court is a risk factor for American democracy,” said Berkeley Law Dean Erwin Chemerinsky, one of the nation’s preeminent constitutional scholars. “What’s it going to mean to have a Supreme Court that’s come down so clearly on one side of that divide and so far to the right on that side of the divide?”

It could mean law, at every level, that is more hostile to people who have long suffered from political and social exclusion, said Berkeley Law Professor Russell K. Robinson, faculty director of the Center on Race, Sexuality and Culture.

“Our country is becoming more diverse,” Robinson said. “We’re seeing more and more the browning of America. More young people identify as non-heterosexual, non-cisgender. … But it feels like this is a backward-looking court. It’s not embracing demographic change — in some ways, it’s trying to lock in the traditional ways of understanding power and who holds power in America.”

Indeed, conservatives throughout much of the U.S. have moved to recast election processes and to constrict rights in ways that appear designed to limit the political power held by people of color, women and LGBTQIA+ communities. Many of the most high-profile cases before the high court in recent years involve fiercely contested issues of race, gender and religion.

Doubts about the court’s commitment to democracy are underscored by the brass-knuckle politics that conservatives have used to nominate and affirm allied Supreme Court justices. The doubts are further inflamed by ethical issues, as court conservatives in some instances seem to have shed impartiality and to be working closely with religious and political allies.

In a new series of decisions due before the end of June, the court is expected to continue its focus on these contentious issues. At stake, Berkeley scholars say, is a critical question for American democracy: With the nation dangerously divided over demographic and cultural change, is the court helping to assemble a legal structure in which a shrinking base of white conservatives can rule the country long-term, even as a minority?

A legal war for power — and for the meaning of democracy

In a practical sense, the intermingled legal, political and symbolic conflicts that come before the Supreme Court often are conflicts about the values of democracy, how democratic processes should work, and even the meaning of the word.

In the view of Berkeley Law professor John Yoo, critics often misunderstand the court’s role. “The Constitution’s design and the Supreme Court’s job is not to advance democracy,” he said. “It’s to maintain the guardrails that the Constitution imposes on democracy.”

The nation’s founders worried that a majority of voters, with passions inflamed by some issue or cause, might trample the rights of the minority, he said. To counteract that risk, they decentralized power to three branches of federal government and to the states. And they gave the Supreme Court power to review actions by Congress and the Executive Branch — in effect, a way to moderate extreme actions driven by a runaway majority.

The current court is simply performing the role advocated by the founders, said Yoo, who held a high-level Justice Department post during the administration of President George W. Bush.

Others, however, suggest that the Supreme Court has a long history of supporting a majority that’s trampling on minority rights. The most stark example: racial justice.Soon after the Civil War, the U.S. ratified constitutional amendments that prohibited slavery and racial discrimination, and gave Black men the right to vote. But in 1896, the court sanctioned “separate but equal” treatment for Black and white people. That created a framework for Jim Crow laws that allowed the white majority to repress Black people with impunity — and often to block them even from voting.“If a democracy is characterized as the people being able to vote for lawmakers who will represent their interests, this country was not a democracy until the passage of the Voting Rights Act of 1965,” said Berkeley Law professor Khiara M. Bridges.

Campaigns, elections and voting rights — a sustained erosion

Since 2010, the Supreme Court has delivered a succession of rulings focused on changing the rules of elections. The decisions have given potent new advantages to wealthy and corporate donors, and to governments that seek to make voting more difficult. Two more cases with potentially far-reaching consequences may be decided by the end of June.

“The Supreme Court is deciding election cases in ways that enshrine minority rule and keep some voters, particularly Black voters, from having an equal political voice,” said Charlotte Hill, director of the new Democracy Policy Initiative at the Goldman School of Public Policy. “That then could create a bias in election outcomes and create the potential for more right-leaning court appointments down the road.”

Generally, the cases fall into three areas:

Election financing. The court in recent years has loosened a century of controls on political donations and campaign spending, said UC Berkeley political scientist Henry Brady, former dean of the Goldman School. That has a direct bearing on important policy — in climate change, for example, or reproductive rights or gun control.The most momentous decision came in 2010, when the court’s conservative bloc concluded that the government could not limit independent spending on political campaigns. Campaign spending is a form of speech protected under the First Amendment, the court said — and corporations and advocacy groups have free speech rights, just like people.

Today, Brady said, billions of dollars in donations, often from anonymous donors to political action committees, have created an unprecedented power imbalance between special interests and average voters. While both Democrats and Republicans benefit from these donations, most of the individual mega-donors to super PACs are conservatives.

“The top 100 donors to super PACs basically give two-thirds or more of the total money spent on elections,” Brady said. “And so a very, very small group of people have given large sums of money to the super PACs. Those super PACs then run ads. There’s no transparency.”

“Some of these donations come directly from corporations,” he continued, “but corporations are not people. The one thing they want to do is maximize profits. They’re not trying to help other social aims. And the result is that we’ve empowered corporate sector institutions, and they now have tremendous powers to affect outcomes in policy debates.”Voting rights. The Voting Rights Act of 1965 was a landmark in the mid-20th century campaign against institutionalized racial discrimination, especially the overt discrimination practiced in the Old South. The law gave the federal government broad authority to monitor state and local efforts to suppress voting on the basis of race — and to block those efforts, if needed.

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