How a Conservative SCOTUS May Change Our Country Forever

Supreme Court of the US

A conversation with Vox’s Ian Millhiser on today’s news and his new book, The Agenda: How a Republican Supreme Court is Reshaping America.

The Supreme Court issued the final opinions of its term Thursday, including one much-anticipated decision that upheld two controversial Arizona election laws. In a 6-3 conservative-majority vote, the court rejected claims that the laws violate the historic Voting Rights Act and discriminate against people of color.

Meanwhile, the court’s next term is filling up with high-profile cases involving gun regulation and a potential challenge to Roe v. Wade. (And make sure to check out my conversation with Planned Parenthood President, Alexis McGill Johnson for a breakdown of what this could mean for reproductive rights in this country.)

I spoke with Vox Senior Correspondent and attorney Ian Millhiser to get his perspective on all of today’s news, the term ahead, and his new book, The Agenda: How a Republican Supreme Court is Reshaping America.

Katie: The court’s ruling on the Arizona voting rights case, Brnovich v. Democratic National Committee, was one of the most anticipated of its term. Can you give us an overview of what was at stake?

Ian: The immediate issue in this case was whether Arizona could enact two restrictions on voting — the first disenfranchises voters who cast their ballot in the wrong precinct, the other prevents most people from delivering another voter’s absentee ballot to the polling place. In upholding both restrictions, however, the Supreme Court significantly weakened the landmark Voting Rights Act of 1965, which ended Jim Crow voter suppression.

Katie: A 6-3 conservative majority upheld the Arizona laws. What’s your reaction to this decision?

Ian: It’s a very bad decision. The Court didn’t kill the Voting Rights Act altogether, but it watered it down considerably. The decision in Brnovich, moreover, has to be read alongside two other decisions Shelby County v. Holder and Abbott v. Perez, which made even more significant cuts to the Voting Rights Act. Read together, the three cases mean that the Voting Rights Act is barely still alive, and that federal voting rights law is now weaker than it’s been since Jim Crow.

Katie: How do you expect the decision to affect the Department of Justice’s voting rights lawsuit?

Ian: I don’t know that it will have an immediate impact on the DOJ suit — Brnovich concerned something known as the “results test” under the Voting Right Act, while the DOJ brought its suit under a separate legal rule known as the “intent test.” But Brnovich demonstrates that this Court is extraordinarily hostile to voting rights claims. I think the DOJ is likely to lose its case, not because it is wrong on the law, but because it will face very hostile courts.

Katie: Last month, the court agreed to hear Dobbs vs. Jackson Women’s Health Organization, which challenges Roe v. Wade. What effect do you expect this case to  have on abortion laws in this country?

Katie: Your new book is an examination of the court’s current makeup and how it’s expected to shape our democracy. Tell us about this idea and why you wanted to write about it…

Ian: We like to think of the courts as something that are beyond politics and that apply legal principles. Unfortunately, one thing that’s happened in recent years that has never happened before [is that] in 2010 Justice Stevens, who is a Ford appointee, retired and was replaced by Elena Kagan, an Obama appointee. And that meant literally for the first time in American history we had a coherent block of five justices who tended to vote to who are all appointed by Republican presidents. And we had a coherent block of four justices who were all appointed by Democratic presidents who tended to vote together. Now, it’s six to three, but what we have seen emerge in recent years is that there really is a coherent partisan view of what the Republican Party wants from the judiciary. To a lesser extent, the Democrats are developing a view as well, but their views don’t matter as much because they’re in dissent. And so since we’ve seen the courts move in this direction where there really is a partisan agenda where you can say, ‘this is what the GOP wants from the judicial branch of government,’ I thought it was useful to examine both what that agenda is, but also to think of it in explicitly partisan terms, which is not traditionally how we thought about courts. 

Katie: How has the power of the judiciary branch of our government changed over the years?

Ian: That’s a really interesting question. Part of my inspiration for this book is, I started writing it at the end of what was really a lost decade for Congress. From 2011, when Republicans won the House and we entered a period of divided government really until 2020 when the pandemic forced Congress’s hand, Congress did a lot of nothing. There was a tax bill and there was the sequestration, but Congress just wasn’t really playing a major role in setting policy in the United States. And in that same period, the Supreme Court dismantled campaign finance law, it hobbled much of the Voting Rights Act, it weakened the ban on sexual harassment. It expanded religious liberty doctrines so that religious employers could often diminish the rights of their employees. It halted Obama’s clean power plan, which was his best effort to fight climate change, it weakened unions. Lest you think it’s all just an unending stream of bad news for liberals, there’s also the marriage equality decision. So the Supreme Court was really busy during this period when Congress was doing a lot of nothing. It became the locus of policy making in the United States, and that’s disturbing. Even if you like what the court is doing because the court is the one unelected branch of government, it’s made up of the closest thing we have to medieval barons, they serve for life. I would think that if we want to be a democracy, we would want the court to be the weakest branch, although it has really emerged potentially as the strongest branch of government in the last decade.

Katie: How did President Trump transform the Supreme Court during his tenure?

Ian: One thing that I think is very unfortunate about the fact that we have such a powerful Supreme Court [is that] it makes some presidential elections matter a whole lot more than others. And the question of which presidential elections matter a whole lot winds up being fairly arbitrary. President Obama was president for eight years and only got two seats on the Supreme Court. Part of that is because of Mitch McConnell’s work to keep him from appointing Merrick Garland. But Trump was president for four years, and he got three seats. And these three seats are going to be extraordinarily consequential. Thirty years from now, the court is going to be pushing distinctly Trumpian policies even though Trump was repudiated the first time that he faced the voters after he became president.

Katie: What do you see as the effect of these Trump appointments in terms of implementing public policy in a way that maybe our founding fathers never intended?

Ian: I think that a lot of these Trump appointed judges and conservative judges in general like to couch what they’re doing in terms of, the term is originalism, in terms of what they say that the founding fathers wanted. But the reality is you go back and you look at the founding history, and the founding fathers didn’t know what the Constitution says. There were big fights between Hamilton and Jefferson over things like whether or not we could have a national bank. James Madison thought it was unconstitutional for the federal government to build roads or to build canals. I guess if James Madison’s view would have prevailed today, we’d have to tear up the entire federal highway system. The Constitution is just a really ambiguous document. It uses words like reasonable or cruel or due process of law or liberty that could be interpreted in a myriad of different ways. But over the course of maybe 250 years of American history, judges have put meat on those bones. There’s been a whole body of precedent. And so setting aside any particular thing that they want to do, when I hear judges make these originalist arguments, when I hear them claim like, “Oh, no, we’ve got to go back to what the founding fathers wanted,” I don’t think they are actually trying to take us back to some consensus view amongst the founders because there wasn’t a consensus view.

“These terms that are extremely opaque that take a great deal of specialized training to understand…A voter shouldn’t have to hire a lawyer to understand what their government is doing.”

Katie: You talk about small incremental decisions the Supreme Court is making that can have a huge impact on the way this country operates. Tell me a little bit about some of these. 

Ian: The thing about the Supreme Court is it speaks in a language that you have to have a lot of training to understand. I have a whole chapter [in my book] on administrative law. And just by saying the words administrative law, I’m afraid I put a lot of your listeners to sleep. But administrative law governs what kind of emissions are put out by power plants. If you get free birth control, you can thank the Department of Health and Human Services for that. If you get free cancer screenings, you can thank the Department of Health and Human Services for that. If you get overtime pay, the Department of Labor played a role in that. And when the Supreme Court strikes these things down, they don’t rub their hands together like some sort of cartoon villain and talk about how they’re taking cancer screenings away from people. They use terms like Chevron deference and the anti-commandeering doctrine or the non-delegation doctrine. These terms that are extremely opaque that take a great deal of specialized training to understand…A voter shouldn’t have to hire a lawyer to understand what their government is doing…We should be able to figure out on our own without any specialized training which candidates are likely to implement policies that we’re going to like.

Katie: It sounds to me like you worry that the Supreme Court has become an extension of the Republican Party. But for argument’s sake, couldn’t someone else say it’s an extension of the Democratic Party when a Democratic president has openings and fills them with people who are more aligned with his or her political philosophy or ideology?

Ian: I don’t know who Joe Biden is going to appoint to the Supreme Court, although I could guess. And if Joe Biden were to appoint a justice who said, “I think that the Constitution requires Medicare for all,” I’d be against that too. If there was a justice on the Supreme Court who said I think that the Constitution should be interpreted to implement whatever was in the Democratic Party’s most recent platform, that would also be bad. My viewpoint at least is that the voters should decide what government we have in this country. And if we give too much power to the Supreme Court, regardless of who wields it, if we had a six to three Democratic Supreme Court that was implementing the Democratic Party’s policies, that would also be terrible. And so let’s have a democracy, let voters decide. My politics are fairly liberal, but I am confident enough that I can sell those policies in the democratic process that I don’t need to cheat it. If you’re confident in your beliefs and you’re confident that you are right, then go out and tell people to vote for them. And if you aren’t confident enough that you can sell your policies to the people in a democracy, then you don’t really believe in democracy if you think that those policies should be implemented anyway.