As Brett Kavanaugh assumes his seat on the Supreme Court, he joins three other conservative justices appointed by a president who entered the White House having lost the popular vote.
When Brett Kavanaugh was confirmed yesterday, it was (discounting West Virginia Democrat Joe Manchin, who cast a yes vote after the matter was already decided) by a group of Republican Senators who collectively represent 42 million fewer people than the Democrats, who represent the majority of Americans but constitute a minority of the Senate chamber.
When Republican Senate Leader Mitch McConnell manipulated the FBI investigation demanded by several of his own members and made a mockery of the advice and consent process, he did so on behalf of the least popular Supreme Court nominee in American history, a man whose confirmation was opposed by a majority of Americans per a poll conducted by none other than Fox News.
When McConnell denied President Obama a hearing on Merrick Garland to replace Justice Scalia, he did so using his slim, counter-majoritarian Senate advantage to blockade the choice of a president who overwhelmingly won the popular vote twice.
The House of Representatives could, in theory, have prevented Kavanaugh’s confirmation by launching investigations into his multiple perjuries and sexual assault allegations that the White House and the Senate refused to conduct. But it could not, in practice, because it was held in overwhelmingly Republican hands, despite Republicans having won the popular vote for the House in 2016 by a razor-thin margin.
In 2012, Republicans “won” a 33-seat majority in the House despite having lost the overall popular vote in the House elections. In 2016, Republicans won the popular vote in the House by a single percentage point—an advantage that vaulted them to a whopping 47-seat advantage out of 435 members. That’s a pretty nice deal: win the vote by a single percentage point, and gain a 10 percentage-point advantage in representation.
Now Brett Kavanaugh will be free to join his conservative colleagues in repealing common sense economic, environmental and social laws and regulations that are broadly supported by large majorities of the country, and thus enacting by fiat deeply unpopular conservative policies that would never see the light of day by way of legislative majority.
There are limits to how long this can continue without destroying the legitimacy of American governance itself. Certainly, by plowing ahead with forcing Kavanaugh onto the Court, conservatives have shredded the legitimacy of the government branch that depends most on its perception as a fair and non-partisan arbiter of justice. But that crisis of confidence cannot help but extend to the entire system, as well. It is an unsustainable powder keg ready to explode.
The unfairness in representation is not only an abstraction of political parties. It is also deeply personal.
The blatantly unjust structural advantages held by conservatives are intentional byproducts of institutionalized racism, with concomitant racist (and, now, sexist) effects. Both the electoral college and the apportionment of the Senate were designed to advantage slaveholder states and shield less populous, more conservative and more rural states from democratic accountability. Gerrymandering in the House has been used to privilege rural, exurban, less educated, and more conservative white flight populations over cosmopolitan, multi-racial, and multicultural urban populations who drive the majority of economic growth and cultural progress. Yet they are treated as second-class citizens in their own country. As a result, Congress is overwhelmingly older, whiter, more male, and more calcified in ugly prejudices than the general population.
No democracy can survive the oppression of majorities by artificial contrivances of minority rule–particularly when that minority constitutes an aging, demographically declining, and increasingly economically and culturally irrelevant population–especially one that is stewing in the politics of backlash, fear, and collective cruelty. Something will give, or it will snap.
The most pleasant resolution was seen in California over the past several decades. Only two decades after Republican governor Pete Wilson tried to enshrine some of the country’s most viciously racist, anti-immigrant laws, California is now so overwhelmingly Democratic that Republicans have become a third party in the Golden State. Combined with the implementation of a non-partisan redistricting commission approved by voters, the state’s declining conservative population could no longer hold back the tide. Democracy won out.
The same could hold true in the country as a whole. The upcoming midterms could see a wave of Democrats pushed into the House, with a bitterly divided government for two years until Democrats sweep to full control of the executive and legislative branches in 2020. Democrats could then rectify some of the structural imbalances plaguing our democracy, forcing the Republicans into either realignment or permanent minority status.
The alternatives are significantly less pleasant. Many pundits have pointed to the acrimony in the country as an echo of the 1850s, before the Civil War. But our modern internal conflict is likely to look far less like the American Civil War of the 1860s, and much more like a smaller scale version of Spanish Civil War of the 1930s: a marginalized group of urban, cosmopolitan, social, and economic liberals pitted against the combined forces of wealthy special interests and religious conservatives. The outcome of that conflict, of course, was decades of fascist despotism.
Republicans know that, as their demographic crisis deepens, they cannot hold onto the country by legitimate means. They currently hold power over all branches of government by a set of oppressive, anti-majoritarian contrivances. “Justice” Kavanaugh–with his sneering, vituperative sense of wealthy white male entitlement–has become the personification of that unjust gamesmanship of the social compact.
Either power will be taken from them by sheer force of numbers and those contrivances will be forever destroyed, or democracy itself will break down in ugly and unpleasant ways. Either way, the status quo cannot continue.
