WASHINGTON (CN) — Americans have as many sources to blame for the country's problems as they have fingers to point. But when it comes to healing old wounds and stitching the country back together, students of democracy say the high court is not fulfilling a key function.
“One of the court’s most important responsibilities is ensuring that the machinery of democracy is working,” Douglas Keith, counsel in the Brennan Center’s Democracy Program, said in a phone call.
“It's hard to make a clear case for the court being a symptom of extreme polarization versus a cause of it but … the court's decisions are making it more difficult for us ever to claw our way out of this moment,” he added.
In its recent rulings — such as the decision to overrule Roe v. Wade — the court says it is upholding the promises of democracy by returning issues to the states so voters can have more control over those decisions. And yet, the court’s rulings on voting rights have undermined this process as well.
“The court itself talks in some of its recent decisions about how it's kicking issues back to the states or back to the public to decide, but that only works if our democracy is functioning and if the public actually gets to make its voice heard,” Keith said. “So many of the court’s decisions have actually undermined the ability of the public to make its voice heard, that the court’s claims that it's taking decisions back to the public ring pretty hollow.”
The court could solidify this hollow claim in a case added to the calendar for next term.
“Nothing would ring more hollow than the court’s embrace of the independent state legislature theory, which it has agreed to take up in a case called Moore v. Harper in the coming term,” Ethan Herenstein, a counsel with the Brennan Center’s Democracy Program, said in a phone call. “This is a case that would prevent states from organizing their democracies as they see fit.”
An essential tenant of American democracy is the idea of checks and balances between the different branches of government. Harper presents a controversial theory that could upend checks and balances on what are supposed to be free and fair elections.
The independent state legislature theory — which Republicans in North Carolina are using to fight a state court order to redraw congressional maps — would establish the authority of state legislatures as supreme to that of state courts in the context of elections.
“It completely obliterates the checks and balances and gives virtually all the power to state legislatures and prevents state courts from having any say whatsoever in how federal elections are run,” Herenstein said. “It would let state legislatures run roughshod over their state constitutions and in many cases would prevent virtually any voters from finding meaningful remedies to ensure their right to vote.”
Legal experts who have studied the theory, a product of Bush v. Gore, say it is radical and goes against fundamental tenants in the American governing system.
“The idea that the state legislature has this power that allows it to trump those checks and balances is really foreign to our constitutional system and our system of checks and balances that are a fundamental part of it,” David H. Gans, director of the human rights, civil rights and citizenship program at the Constitutional Accountability Center, said in a phone call.
Several conservatives the court meanwhile have already signaled support for the theory. Justice Samuel Alito penned a dissent — joined by Justices Thomas and Gorsuch — earlier this year that said Republican lawmakers from North Carolina who presented their case based on the independent state legislature had a stronger case than voting rights advocates.
“Both sides advance serious arguments, but based on the briefing we have received, my judgment is that the applicants’ argument is stronger,” Alito wrote.
There has been a negative reaction from the public to some of the court’s divided rulings this term, including the right to abortion, which a majority of the American public has said should be upheld. Because the court is unlike Congress or the executive, the public’s opinions on their rulings matter.
“As the court issues opinions are more and more extreme and more out of touch with the public perspective and just generally seen as lawless or partisan in nature, you increasingly approach a situation in which the court doesn't actually have that public expectation — there's no expectation that officials will follow this decision, which is a really precarious position for the court to be in, and one in which it's risking the primary source of its authority,” Keith said.
Court watchers say what they see as a conservative agenda from some of the justices is harming American democracy.
“The Supreme Court has got a conservative agenda and it's really made America one of the most fragile democracies on this Earth,” Lawrence Gostin, faculty director of the O’Neill Institute for National and Global Health Law and Georgetown Law, said in an interview.
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