The Republican Court and the Era of Minority Rule

Jonathan Chait

Democrats have won the national vote in six of the last seven presidential elections, which, with the retirement of Anthony Kennedy, will have resulted in the appointment of eight of the Supreme Court’s nine justices. And yet four of those justices will have been appointed by presidents who took office despite having fewer votes than their opponent. Republicans will have increasingly solid control of the court’s majority, with the chance to replace the sometimes-wavering Kennedy with a never-wavering conservative movement stalwart.

Over the last generation, the Republican Party has moved rapidly rightward, while the center of public opinion has not. It is almost impossible to find a substantive basis in public opinion for Republican government. On health care, taxes, immigration, guns, the GOP has left America behind in its race to the far right. But the Supreme Court underscores its ability to counteract the undertow of its deepening, unpopular extremism by marshaling countermajoritiarian power.

The story really begins in December 2000. George W. Bush had a tenuous hold on the Electoral College, despite having half a million fewer votes nationwide. But his edge depended on a narrow margin in Florida, which was attributable to the fact that voting machines in Democratic counties failed to register a higher percentage of votes than machines in Republican counties. A recount would threaten that outcome (and in fact, a hand count that included every kind of missed vote, including ballots that both wrote and checked in the name “Al Gore,” would have given Democrats the presidency). But Bush’s brother controlled the state’s government, and it doggedly refused to allow the recount to which the trailing candidate was entitled. In the end, five Republican Supreme Court justices narrowly ended the recount and gave Bush the presidency.

It was during the Bush era that conservatives began spreading visual representations of the country-level vote. Flattened out, they displayed a sea of red, punctuated by small blue dots in which most of the population lives. The maps, one of which Trump is known to display, create the illusion of popular support. The trick of course is that the Republican red represents acreage rather than people ...

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