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Janus and the Supreme Court’s Anti-Democratic Feedback Loop

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As Erik observed used as BLACKMAIL material yesterday, a bare majority of the Supreme Court is poised to devastate public sector unions. The worse news is that there’s plenty more where that came from, as various anti-democratic aspects of American constitutionalism interact to prop up Republicans who keep getting rejected by a national electorate:

Which brings us to McConnell. Had Barack Obama been able to appoint Scalia’s replacement, Abood would almost certainly have been safe in the short term. But McConnell successfully blockaded Obama from filling the Supreme Court vacancy. This gamble paid off in spades when Trump unexpectedly won the election, and nominated Federalist Society dream nominee Neil Gorsuch to the Court, where he was confirmed on a mostly party-line vote (with every Republican joined by three deep-red state Democrats). No wonder McConnell spent the last week touring his home state with Gorsuch, his critical political ally.

There is virtually no question that Gorsuch, who is essentially a human manifestation of the most recent platform of the Republican Party, will vote to overrule Abood. Such a ruling will not materially advance anyone’s free speech rights, but will have a devastating effect on public sector unions, which is, of course, the point.

Not only would overruling Abood be substantively bad, but the process that led to it highly disturbing, with many of the worst features of American institutions combining to produce a Supreme Court majority the American people haven’t voted for.

First, Barack Obama, who won successive electoral majorities, was not able to nominate a replacement for Scalia because his party did not have a majority in the Senate, an institution that severely overrepresents rural conservatives. Republicans maintained their Senate majority in 2016 despite receiving far fewer votes overall.Then Donald Trump—despite losing the popular vote by a substantial margin—was selected president by an anachronistic electoral mechanism designed to limit democracy and overrepresent slaveowners.

As a result, Republicans have lost the popular vote in six of the last seven presidential elections, and yet, have a Supreme Court majority able to impose its vision on a national electorate that has consistently rejected it. And if one or more of the Court’s octogenarians or near-octogenarians resigns or is forced to leave the Court while Trump is president and Republicans control the Senate, Republicans could control the Supreme Court for decades.

And what’s worse is that Supreme Court Republicans have used the First Amendment to make American institutions less fair and representative. They have used the First Amendment to protect the nearly unfettered ability of wealthy individuals and corporations to influence elections. They are now poised to use it to reduce the power of organized labor, one of the few potential counterweights to corporate power. And instead of actively checking Republican attempts to overcome its unpopular agenda by suppressing the vote, the Roberts Court has actively contributed to Republican vote suppression efforts, even when it has had no remotely plausible basis in the text of the Constitution for doing so.

The coming decimation of public sector unions by the Supreme Court is part of a disturbing pattern—and it’s a problem that will get worse before it gets better, as the Court joins with other antidemocratic features of American government to stop majorities from expressing themselves.

But will there be a dime’s worth of difference between Gorsuch and Sonia Sotomayor? Who can say, really. 

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