Conservative Justices Are GOP Puppets. They’re Happy to Play the Part.

Under GOP-appointed control for the past 50 years, the Supreme Court is an important piece to the conservative agenda of maintaining minority control.

Graphic illustration of the Supreme Court building with people's heads in front
The Supreme Court's conservative justices have wasted no time shielding the Republican Party to whom they owe their power from the consequences of democracy. Shutterstock/Austen Risolvato/Rewire News Group illustration

This piece is part of a Special Edition, which you can see here.

In all corners, evidence abounds that our democracy is not well. Less than two years ago, the outgoing president incited his supporters—many of whom he reportedly knew were carrying weapons—to march to the U.S. Capitol and stop Congress from formalizing the results of the election he had lost. Every day since then, he and many of his fellow Republicans have repeated the lie that the 2020 presidential election was stolen, and now 61 percent of Republicans, and nearly a third of all Americans, believe Joe Biden is not the legitimately elected president. Incredibly, despite a mostly disappointing showing during this year’s midterm elections, at least 22 election deniers were elected to statewide office, and just weeks ago, the election-denier-in-chief announced he will run for president again in 2024. If I’m being honest, it’s entirely possible he will win.

Refusing to accept the results of the 2020 election is part of a broader trend by the Republican Party to openly question the very value of democracy to the extent that it has become an obstacle to maintaining power. Shortly before the 2020 election, without context or qualification, Utah Sen. Mike Lee tweeted “We’re not a democracy” and declared “Democracy isn’t the objective; liberty, peace, and prosperity are. We want the human condition to flourish. Rank democracy can thwart that.”

More recently, an Arizona state house candidate expressed open disdain for the notion that the United States is a democracy, claiming, “When I hear the word ‘democracy,’ I think of the democracy of the Democratic Republic of the Congo. That’s not us.”

Of course, the structure of our federal government can’t be defined by a single word, but naked contempt for the label of democracy reveals a darker truth—to many, “democracy” is only a value when it operates as a means to an end. For the Republican Party, what’s more important than democracy is maintaining power by the shrinking minority that is its base.

The Supreme Court is an essential component of this project of maintaining minority control at all costs. An institution that is fundamentally anti-democratic in form and in function, the Court has been under Republican-appointed control for the past 50 years, even though the Democratic candidate has won the popular vote in seven of the last eight presidential elections. A majority of the sitting justices were nominated by presidents who came into office having lost the popular vote and confirmed by Senate majorities that represented a minority of the U.S. population.

One of the justices, of course, owes his seat to a shameless ploy by Mitch McConnell to deprive the nation’s first Black president of his constitutionally granted authority to appoint Justice Antonin Scalia’s successor. That ploy was based on a made-up rule that McConnell himself broke four years later to confirm Amy Coney Barrett to the Court just eight days before the election and after tens of millions of people had already voted.

Having ascended to power through plainly anti-democratic maneuvers, the Court’s conservative justices have wasted no time shielding the minority party to whom they owe their power from the consequences of democracy. In 2010, the Court chose the free speech rights of corporations over the ability of actual people to participate equally in the political process, opening our elections to a deluge of corporate money and effectively drowning out the voices of everyday Americans in Citizens United v. Federal Election Commission.

The conservative justices have taken taken a wrecking ball to the Voting Rights Act, which for decades protected voters of color from a return to Jim Crow-style discriminatory election laws. The Court slashed section 5 of the Voting Rights Act in 2013, and severely weakened section 2 of the Act in 2021. Next year, in Merrill v. Milligan, the Court could deal a final blow to what was likely the most effective piece of civil rights legislation in history.

The Court’s shifting of power away from voters and toward corporations has had its intended effect of shifting power from the Democratic Party to the Republican Party. This year, in particular, it’s all but certain that the Republican Party owes its House majority to the workings of the Supreme Court. The Court directly intervened in two cases to block lower court orders that found newly drawn congressional maps in Louisiana and Alabama violated the Voting Rights Act. Though detailed findings of the maps’ illegality are still technically on the books, the Court insisted that, for the sake of administrative ease, this year’s elections be held under those maps. A federal court in Georgia took note, and allowed for the one-time use of an illegal map there, as well.

Republicans also reaped the benefits of a 2019 case in which the Court decided that the federal judiciary is powerless to set limits on extreme partisan gerrymandering that overwhelmingly advantages the GOP. Predictably, red-state legislatures took this decision to heart when they redrew congressional districts following the 2020 census, and the resulting maps in red states from Ohio to Florida to Texas meticulously maximized the number of safe seats for Republicans, the will of the voters be damned. These maps, and the Court decision that allowed them, erase any doubt about the Supreme Court’s footprint on the 2022 election and the Republicans’ victory in the House.

Lest anyone misinterpret the Court’s 2019 partisan gerrymandering decision as a commendable display of judicial restraint, the Court has agreed to hear oral arguments this very week in a case that proves otherwise. Moore v. Harper involves the so-called independent state legislature theory which, in short, posits that state legislatures have exclusive authority over congressional elections—to the exclusion of state courts, state governors, and state election officials. The only check on a state legislature’s power over congressional elections would be… the federal courts. The conservative justices will stick their heads in the sand and ignore concerns about things that help their party, like partisan gerrymandering, but they’re just as interested as their elected colleagues in seizing power where it counts. Judicial restraint that is not.

For years, Republicans have shown they are willing to sacrifice democracy when it gets in their way, and the conservatives on the Supreme Court are part and parcel of that project. But what would the Republican Party, including its Supreme Court justices, propose in democracy’s place?

More than any other institution, the Supreme Court seems to be telegraphing an answer. At the same time that it has been weakening the functioning of our democracy, the Court has been systematically dismantling protections that allow us to sustain a multicultural, pluralistic society. In the past decade, the Court has drastically altered its First Amendment jurisprudence, blurring the line between church and state while favoring the rights of people with religious objections to generally applicable laws over the rights of the people meant to be protected by those laws.

Just last term, the Court decided two religion cases, in one allowing public school officials to lead prayers in schools, and in the other forcing public school districts to fund explicitly religious education. The Court has also allowed people—and even corporations—to opt out of laws to which they have religious objections, weakening anti-discrimination protections for LGBTQ people and threatening access to birth control and transgender health care for countless Americans.

In its last term, the conservative justices made good on the paramount promise of their benefactors in the White House and the Senate, overturning Roe v. Wade and stripping the American people of the fundamental human right to an abortion, a decision whose consequences will fall most heavily on women, people of color, and people with low incomes. In its current term, the Court will decide whether colleges and universities can use race as one of the many factors they consider in their admissions decisions in order to ensure a diverse student body, a decision that could have an immediate and devastating effect in higher education and beyond.

It will also decide whether states can protect LGBTQ people from discrimination in public accommodations, or whether people with religious objections to such laws can opt out, allowing the exception to swallow the rule. The Court is even considering a challenge to the Indian Child Welfare Act, and its decision could upend hundreds of years of tribal law, threatening the continued existence of Native tribes.

Slashing the separation between church and state, empowering people with religious objections to impose their beliefs on non-believers and those who believe differently, and dismantling protections for women, LGBTQ people, Indigenous people, and other people who have historically been shut out of the political process—this is white Christian nationalism, and it’s what Republicans have to offer in the place of democracy.

Some elected officials proudly wear the badge of white nationalism. Steve King, for instance, once asked, “White nationalist, white supremacist, Western civilization—how did that language become offensive?” Wendy Rogers recently remarked that white nationalists are “patriots.” Earlier this year, Marjorie Taylor Greene and Paul Gosar appeared at a white nationalist event. But many Republican politicians avoid the label because they fear it would be politically damaging. Instead, they look to the unelected judges and justices they confirmed to do the work of white Christian nationalism for them—and the conservative supermajority on the Supreme Court is answering the call.

Our democracy is at the edge of a precipice, and we need to act quickly to save it. Democrats in Congress must enact meaningful reforms to shore up our democracy and restore our fundamental rights. Of course, we should pass legislation to codify the right to abortion, to protect marriage equality, and to expand the right to vote. But these laws are at serious risk in front of this anti-democratic Supreme Court that is hellbent on protecting minority rule.

That’s why we must also pass the Judiciary Act, which would add four seats to the Court and restore balance to an institution that has proven itself hostile to democracy itself. We are in a break-glass moment, and it’s time for us to start acting like it.