LIBERALS NEED TO THINK OF THE REPUBLICAN PARTY'S spreading control over the federal courts in democratic and not just civil-libertarian terms. Our traditional anxiety is that conservative judges will fail to protect the rights of political minorities from attack by an overzealous majority. But the greater danger today is quite the opposite. The new conservative legal agenda is a zealous project by a political minority to thwart the majority's legislative priorities and to undermine the democratic rights of the people.
The emblematic event of this judicial movement was, of course, the U.S. Supreme Court's 2000 decision in Bush v. Gore. In that spectacular failure of law and logic, five of nine justices--one named to the Court by Richard Nixon, three by Ronald Reagan and one by George Bush Senior--intervened in the first presidential election of the new century, overruling a state supreme court on a matter of state law in order to stop the manual counting of more than 175,000 uncounted ballots in Florida. By ordering this unprecedented judicial disenfranchisement as a remedy for the entirely hypothetical possibility that some ballots might be treated differently in one Florida county than another, the justices effectively anointed the loser of the national popular vote as the winner of the 2000 election.
Judge Richard Posner, Bush v. Gore's most able defender, cheerfully concedes that the decision's central legal analysis was specious. He argues that the outcome was justified not by anything so banal as the text or meaning of the Constitution but by virtue of the fact that something just had to be done. And the Court could do it so much more swiftly than the messy political branches that actually had the constitutional authority to resolve the issue. Judge Posner did not seem surprised to find tucked into the Court's opinion a proclamation that the American people have "no federal constitutional right to vote."
But we shouldn't be surprised, either. The victory in Bush v. Gore of result-oriented power politics over quaint ideas about formal constitutional democracy was no fluke. The Rehnquist Court has been engaged in a long and sweeping campaign to invalidate any progressive legislative outputs of the American political process and to sharply limit popular inputs.
As discussed elsewhere in this issue, the five-justice conservative majority has struck down dozens of laws passed by Congress, chiefly those expanding the rights of citizens or the reach of regulatory agencies--often upbraiding Congress along the way for its insolence in enacting them. Whatever you think of the merits of this or that case, the velocity and ferocity of those overrulings refute any claim that "judicial restraint" is the hallmark of conservative jurisprudence.
But the assault on legislation that expresses the popular will isn't the half of it. Far more corrosively, the Rehnquist Court has interfered with the formation of the democratic will in the first place. Indeed, it has left the marks of its right-wing partisanship and nostalgic racial prejudices all over our political institutions and practices.
CONSIDER AN EXEMPLARY LINE OF CASES: THE COURT'S decade-long interference with legislative redistricting. In the 1993 Shaw v. Reno case, the Court upheld a stupefying claim brought by Robinson O. Everett, a conservative constitutional law professor at Duke University, and other aggrieved white voters in North Carolina. They complained that they found themselves drawn into a "bizarre looking" and predominantly black congressional district, one of two the North Carolina legislature had created out of the 12 new districts to which the state was entitled in 1992. These two districts elected the first African American members of Congress from the state since Reconstruction: Mel Watt and Eva Clayton, who also became the first woman to reach Congress from North Carolina, a watershed event on Jesse Helms' home turf. …