On Tuesday, Justice Brett M. Kavanaugh will hear his first Supreme Court case, a day after President Trump swore in his nominee. In so doing, Trump apologized to Kavanaugh “on behalf of our nation,” for the “terrible pain and suffering” he has been “forced to endure” at the hands of the opposition’s alleged campaign of “personal destruction based on lies and deception.”
As Trump uttered those words, CNN released a poll finding that slight majorities of Americans opposed Kavanaugh’s confirmation and tended to believe Kavanaugh’s female accusers. Public opinion does not, of course, indicate whether a candidate is qualified for the high court. But in the context of that broad public opposition, Trump’s gesture should be seen as one more big, unfurled middle finger in the faces of millions of Americans who found this whole affair deeply wrenching, and thought the claims against Kavanaugh merited good-faith consideration as part of a broader societal shift towards taking sexual assault seriously.
When Trump purports to apologize to Kavanaugh on behalf of the “nation” while sneeringly dismissing those claims, even as a majority opposes Kavanaugh and believes those charges, Trump is — unwittingly or not — highlighting the degree to which this episode represents the further entrenchment of minority rule. With Kavanaugh now on the court, this could very well get worse.
The New York Times reports that Trump’s unusual public apology to Kavanaugh is actually part of a broader strategy of using the battle over his confirmation to enrage and galvanize conservative voters in the midterm elections. Trump injected partisan politics into the swearing in of a justice who is supposed to remain neutral, for the explicit purpose of polarizing the country in ways he thinks will benefit his party.
Many observers have noted that Kavanaugh’s confirmation itself represent a triumph of minority rule, in two senses. Trump, who was elected with a minority of the national popular vote, has appointed two justices, Neil M. Gorsuch and now Kavanaugh, both of whom were confirmed by senators who represent a minority of the national population. Because of the Senate’s grossly unequal representation, its Republican majority reflects such a national minority.
As Michael Tomasky points out, with Clarence Thomas and Samuel A. Alito Jr., there are now four justices who were confirmed by senators representing a national minority, and if Trump gets to fill one more seat, a majority of the court will likely have been confirmed in this manner. All five will also have been chosen by presidents who initially ascended to the White House after losing the popular vote (though George W. Bush did win it during reelection).
One could, of course, reasonably explain some of this by pointing out that the Senate and the electoral college were designed as they were, and that the much more divided confirmations of recent justices reflect a broader trend, that is, hyperpolarization. But what happens if the minority rule gets worse from here?
Worse and worse?
In the midterms, it is possible Democrats could win the national popular vote in the House by up to five or six percentage points, but still fall short of winning control of the lower chamber. That is, in part, because of the geographically inefficient sorting of Democratic voters, but it is also very much because of Republican gerrymandering of House districts.
The political theorist Jacob Levy points out that if all this were to happen, then the political aspirations and values of a minority of Americans will dominate or have gone a long way towards shaping the White House, the Supreme Court, and both houses of Congress. Levy posits that one can still fundamentally accept many countermajoritarian aspects of our system while also finding such an across-the-board outcome deeply troubling. As Levy notes: “It’s a problem for democratic government if a majority can’t gain entry anywhere.”
I’d like to suggest it could get even worse than this. The Supreme Court recently punted on stepping in to check partisan gerrymandering. But then-Justice Anthony M. Kennedy — who has now been replaced by Kavanaugh — appeared at least open to eventually adopting a standard that could limit that pernicious tactic, and most observers expect another gerrymandering case to make it to the high court soon.
But now, as election law scholar Rick Hasen has noted, the new conservative majority makes it even less likely that that the court will ever limit partisan map-rigging. As Hasen also suggests, that majority could be more likely to strike down nonpartisan map-drawing commissions, a tool for countering gerrymandering of congressional districts that Kennedy had voted to uphold (and which Kavanaugh might not).
All that could mean more gerrymandering into the next decade — and, possibly, more minority rule in the House. And this could go beyond gerrymandering. “If Kavanaugh votes like the other conservatives on the court,” Hasen told me on Tuesday, “I would expect him to uphold strict voter ID laws and other laws that make it harder to register to vote.”
To be clear, I think it is unlikely that Democrats will gain a sizable House popular vote win without ending up in control. Democrats may also win numerous governorships, which could help check future Congressional gerrymandering by GOP-controlled state legislatures. But the much worse longer-term outcome — coming after the Kavanaugh minority-rule debacle — is at least possible.
The real meaning of Trump/GOP attacks on “paid protesters”
In this larger context, the ongoing Trump and Republican attacks on ordinary Americans who opposed Kavanaugh become much uglier and more sinister. Trump’s claim of “paid protesters” has been echoed by top Republican senators, and the GOP has adopted a partywide message of depicting opposition to Kavanaugh as an “angry mob.” Trump has apologized to Kavanuagh for the behavior of those people “on behalf of the nation.”
But when Trump uses the term “nation,” it should be understood in the way that exclusionary populist demagogues (of which Trump is one) generally employ such formulations: Trump is, in effect, defining the nation to exclude the Americans who are deeply troubled by Kavanaugh, the charges against him, and the larger debate it encompasses. (This is also the subtext of Trump’s blithe dismissal of the charges against Kavanaugh as a “hoax.”) As Will Wilkinson has argued, such populism is fundamentally anti-democratic because it implicitly or explicitly limits who counts as “the people” who are said to possess legitimate political sovereignty.
Trump’s populism is ethno-nationalist, but put that aside for now: When Trump derides opposition to Kavanaugh as having been “paid,” he is saying the opposition to him is not politically legitimate, that it sits outside the “nation” in whose name Trump apologized to him. It is no accident that Trump, conservative commentators and other Republicans are claiming the protesters were paid by the same George Soros who had a starring role in Trump’s 2016 closing ad, which was the perfect expression of this type of exclusionary populist demagoguery.
The ultimate irony to all this is that the public backlash to Kavanaugh is, no doubt, partly rooted in anger over this ongoing display of minority rule — a minority-supported president picks justices confirmed by senators representing a minority of Americans — and in widespread feelings of deep helplessness over it. In choosing to continue feeding this polarization, Trump is rubbing the faces of millions of those angry Americans in that helplessness — he’s rubbing their faces in his and the GOP’s minority-rule triumphs. And he may only be getting started.