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The Supreme Court and the end of the democratic century


The Great Depression is aptly named. In the election year of 1932 alone, the US economy lost a quarter of its value. Unsurprisingly, the Democrats, under the banner of Franklin Roosevelt, won big that year. Roosevelt won 42 of 48 states, and the Democrats won nearly 100 seats in the House and 12 in the Senate. An economic rally in 1936 helped produce another big victory for the Democrats that year. Further economic progress and fears of war brought Roosevelt a third victory in 1940, and satisfaction with the progress of the war brought a fourth in 1944. Harry Truman’s 1948 victory from behind secured five consecutive terms – 20 years – of Democratic control of the White House, and Democrats held Congress for 18 of them.

None of this was inevitable. If Al Smith had somehow beaten Herbert Hoover in 1928, the crash would have happened on Democrats’ watch, and they probably would have been blamed for it. If Roosevelt had followed tradition and limited himself to two terms, perhaps Republican Wendell Willkie might have won in 1940, perhaps giving his party credit for the outcome of World War II. But the way history has unfolded, the Democrats had a very long period of national dominance — which echoed even longer in the Supreme Court.

Another peculiarity of American political history was also at play there. White Southerners, among the most conservative people in the country on some issues (especially race), were strongly aligned with the Democrats for much of this period, thanks to their longstanding antipathy for Lincoln’s party. This ended up tempering part of the Democrats’ agenda, but also secured them large ruling majorities.

The result was that Democrats appointed federal justices and Supreme Court justices almost exclusively for decades. Even when Republican Dwight Eisenhower assumed the presidency, many of his court appointees were relatively moderate (due to the Democrats’ congressional dominance and his own moderation). His administration was followed by another eight years of Democratic rule. Of the 22 open seats on the Supreme Court between 1933 and 1968, 17 were held by Democratic presidents. And Eisenhower’s five nominees included Earl Warren and William Brennan, two future progressive icons.

The dominance of the courts by the Democrats during this era ensured the success and duration of the New Deal for decades to come. Much of the progress on social issues that we associate with the Supreme Court emanates from this era. Inclusive schooling, right to a lawyer, right to abortion, right to privacy, access to contraceptives, one person representation, one vote, minimum wage laws and more are products of this period of Democratic domination. And as political scientist Kevin McMahon has written, Roosevelt’s court appointments paved the way for later civil rights advances.

In recent decades, however, those broad Democratic majorities have faded. White Southerners are overwhelmingly Republican these days. Today, the two parties are fiercely competitive at the national level; there really hasn’t been a dominant party for the last three decades. And the fact that smaller states have outsized influence in the Senate and Electoral College means Republicans have some advantage in appointing people to the courts. Republicans have held six of the nine open seats on the Supreme Court in the 21st century, despite winning the popular presidential vote only once.

And some of that also seems to be the result of chance. A few tens of thousands of votes cast differently or simply cast in different states would have meant a different outcome in the 2016 election and a vastly different court as a result.

The fact that chance played a role in the overhaul of the law should not minimize the important work done by political activists throughout this period. In the mid-twentieth century, some of the progress made by Democrats came from labor unions, civil rights activists, feminist organizations, and others who saw the opportunities created by the court and argued for their benefits. Their work did more than just change policy; it changed beliefs – about civil rights, the role of women in society, the status of LGBTQ people, etc. Many beliefs that would have seemed incredibly radical 100 years ago are largely taken for granted today in ways that a conservative Supreme Court cannot overturn.

And the decision likely to cancel Roe vs. Wade won’t be exactly down to chance either – it’s the result of a long intellectual push by right-wing legal thinkers, as well as Mitch McConnell’s norm-defying decision to prevent hearings on the Supreme Court nominee of Barack Obama throughout 2016 and then rushing through Donald Trump’s Last Choice in 2020.

With that Democratic electoral dominance gone and the justices it has long produced departed the bench, what we have seen in recent years is an erosion or reversal of many of the court’s mid-20th century achievements. Voting rights have been taken away, gerrymandering is allowed, and abortion is about to be restricted or banned in nearly half of the states, and this court doesn’t seem to be nearly done with its job.

In many ways, this is a return to a traditional model. Over its long history, the Supreme Court has generally been a fairly conservative player, in many senses of the word. It imposes limits on government action and a bias in favor of the status quo, but has also tended to come out in favor of established power. The mid-20th century court was a historical aberration, and it took a very unusual set of circumstances to make it happen.

It is not at all clear where this leads us, but liberals should not assume that history is on their side. If the courts are to turn things around in the direction charted in the Democratic century, it will take a lot of organizational work and an ability to take advantage of the opportunities that chance presents.

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