With all of the discussion over the past couple of years about the legitimacy of the supreme court, I'll admit there are two major decisions[1] that definitely lead me to be wary of the motivation behind how decisions are made, as well as to be incredibly cynical about the overall idea of "equal justice under the law". These are:
Before I discuss what's troubling about these decisions it's worth noting that both were decided by a slim 5-4 majority. I find this to be one of the most troubling aspects of these decisions: it means that if any single justice flipped to the opposing side, then the entire decision would flip, and so in the end, a 5-4 decision looks a lot like the court is just making things up. At a minimum, it makes these decisions like appear arbitrary. Because of this, I wish there had to be a minimum split for a decision (e.g.: 6-3, or 7-2). This would give a lot more confidence that these incredibly important decisions aren't just a coin toss[2].
So why do these two decisions in particular trouble me so much?
The news has lately featured a veritable cornucopia of articles published about legislative maps being rejected by various state supreme courts because they are gerrymandered[3]. This is largely because a new census was recently conducted, and so maps are being redrawn all over the country, but the number of gerrymandered maps is staggering. States like North Carolina, Pennsylvania, Alaska, New Hampshire, Wisconsin, Alabama, Maryland, New York, and Ohio (three times!) have all had their maps challenged on the basis that they're gerrymandered.
(And it's not like I read all of the news. I'm quite sure I missed some.)
This implies that two things are true:
And if those two things are true, then why aren't there federal standards on gerrymandering? The supreme court could have leaned incredibly hard on congress by both (a) establishing a legal standard and/or definition of gerrymandering and then (b) continuing to reject gerrymandered maps until the senate created and passed some laws limiting the redistricting process at the federal level.
The other troubling aspect is slightly more abstract. The SCOTUS decision suggested that states themselves should solve this problem, which sounds reasonable until you consider that the very people who are drawing the gerrymandered maps (and therefore benefitting from the political power that results from said maps) are also the people who are tasked to fix the problem. See the Catch-22 there? It's never going to happen. The only remedy is either (a) every state should appoint a non-partisan body to draw it's legislative maps (which will never happen due to the aforementioned Catch-22) or (b) put in place some reasonable federal limits on gerrymandering.
This particular SCOTUS decision is incredibly troubling. Chief Justice Roberts even noted in the decision that excessive partisanship in the drawing of districts does lead to results that "reasonably seem unjust". So the court is well-aware of the problem, it just chose to eschew it's responsibility to provide a remedy. This is concerning because the court regularly concerns itself with discrimination, equal protection, and civil rights, and in theory seems to support "one person one vote / equal representation / no discrimination" and yet, this single decision disenfranchises millions of voters and effectively removes their right to meaningful participation to choose their elected representatives.
The end result of all of this will be some combination of:
And why is this all so troubling to me? In a word: it's undemocratic. The US is [allegedly] a representative democracy, and yet, it's clearly not. There was a huge opportunity to correct this problem at the federal level, and the supreme court eschewed it's responsibility to provide a remedy.
I agree, theoretically anyways, that money is a form of free speech. How an individual spends their own money is a form of self-expression and in nearly all cases should not be regulated.
The part I wholly disagree with is that limits shouldn't be imposed for the purposes of elections. While everyone has one [physical] voice (and so we're all equal in that respect w/r/t free speech), we don't all have the same number of dollars. This allows outsized/disproportionate influence from a handful of incredibly wealthy individuals to fund political campaigns and influence elections.
The other problem with that decision is that elections affect everyone, and so one [wealthy] individual having a significant impact on an election both (a) impacts those who will live with their new legislator and (b) disenfranchises people who cannot participate similarly in the political process.
To me, the supreme court abrogated it's responsibility in this incredibly important case by using a "one size fits all" approach ("all money is free speech in all cases") rather than impose limits in a single, critical case.
And if you look at some recent elections it's just breathtaking how much money is spent on elections these days[4]:
That's simply obscene. And it should cause everyone to question exactly how the political machine works here in United States. It's deeply troubling: money buys legislators, and then later buys laws.
These two decisions lead me to conclude that the supreme court is a highly political institution that makes decisions not based on legal theory and practice but on ideological terms and preserving political power.
Why not level the playing field for elections? Why not get as close to "one person one vote" / "one person one voice"? It's clear that the supreme court is perfectly okay with the current system, which is at the core of my cynicism.
I'm singling out these two decisions because I regard them both to be "meta-political", in that they concern themselves with the foundational mechanics of the political process, and therefore it's imperative to get them right.
My guess is it's a combination of (a) ignorance and (b) political disenfranchisement that allows what I think of a "tyranny by the few"[5], in which a narrow group of donors controls the political agenda.
Here in Seattle, I consider myself to be "politically unrepresented". WA State on the whole is incredibly polarized (very progressive here in Seattle, Bellingham, Bainbridge, etc, very conservative in most of the state, particularly as you travel east). There are no candidates that actually represent my political views. Political disenfranchisement is amazingly ubiquitous, which is a foundational problem of our broken political system.
