We are not sleepwalking into autocracy, we are waking up to find it's already here.
John Roberts brought us here. Donald Trump and the oligarchs want to finish the job.
Norm Eisen and Kim Lane Scheppele, in an essay published in the New York Times this week, ask whether we are sleepwalking into autocracy. It is an excellent question, but one we should have asked several years ago. A better question for today is, are we able to restore American democracy now that it has been compromised.
The founders, who argued that an independent judiciary was a requirement for our democracy, would have sounded the alarm years ago. The tyranny Eisen and Scheppele see coming has been on view for at least a decade. In that time, the Roberts Court has used its powers to so undermine American democracy that today a clique of oligarchs holds unprecedented power over ordinary Americans.
The good news, and I think there now is some good news, is that instead of sleepwalking, America is waking up.
Would be oligarchs worked for decades to bring us to this point
Scholars like Nancy McLean and Heather Cox Richardson have convincingly demonstrated that a group of wealthy Americans funded efforts to erode American democracy for personal and ideological gain. To succeed, they had to change the rules incrementally, gaining advantage step by step.
When our democracy was stronger and healthier, this group of oligarchs could not make much progress. Americans and their representatives were committed capitalists and proud of big business, but we were still jealous guardians of our own rights. We supported organized labor, a free press, and fair taxation. Later, as we became aware of pollution, we demanded changes to protect the environment. As we became aware of defective products, we demanded consumer protection. The would-be oligarchs grew increasingly alarmed. Several times, they came together and were able to elect presidents sympathetic to their cause. But they could not pass legislation that vast majority of Americans would not support.
That was then.
Every free society generates its own instability. The creative energy that delivers unprecedented material prosperity and cultural output also creates exposure to discord and novel ideas about social standards. Back in history’s first democracy, Socrates was put to death because of that tension, and in the generation that followed, Plato and others turned their backs on democracy. We have thus far avoided their fate because of the trust we place in each other, the admiration we have for our system of governance, and perhaps most importantly, because we are big enough to absorb most disruptive ideas and somehow make them our own.
Over time, we found ways to make our own the notion that every citizen can vote. It did not start that way. It did not come easily. First, poor white men won suffrage. Then Black men. Then women and indigenous Americans. More recently, we absorbed the notion that women could enter the workforce, not because war or penury required it, but because they were talented and interested. Right now, we are in the challenging midst of building an American response to the burdens and inequities of our own history. Young people today think this is a particularly painful topic. It is painful, but not abnormally so- our history is full of painful encounters with the most challenging ideas.
Instead of helping us move forward together, the would-be oligarchs opted to drive wedges into the instability our very freedoms create. They funded efforts to turn a society grappling with advanced technologies that allowed, for example, safe abortions, or with questions of personal power, for example gun ownership, into a society at war with itself. Their aim had nothing to do with abortion or guns, and everything to do with the capture of the judiciary.
The Roberts Court is the result. And its fealty to monied powers that distrust democracy has emboldened it to do more damage to our constitutional order than any enemy has ever dreamed of doing. If there is a villain in the story of America’s democracy, it is not Donald Trump but John Roberts.
John Roberts damaged our democracy more than any foreign enemy ever could
Even before he asserted that Presidents are above the law, Roberts put his hand on the scale of history to subvert our democracy. The twin aims of keeping us divided and aggregating power unto itself showed up back in 2008. The Court was considering a challenge to gun safety laws. The decision in Heller was stunning. The majority on the Court basically said that even though the Second Amendment is the shortest part of the Constitution, they would simply ignore its first thirteen words. It was a decision that required tossing aside precedent and common sense. It would increase divisions in the country and undermine constitutional norms. A faction on the Court could do this because they held a majority. They did do this because their majority was formed for purpose.
We should have known then. In a legitimate court, the weight of precedent and practice over time is hard to throw out, and then only when the mass of society agrees to move on. Sic Transit Plessy v Ferguson. But when the mass of society has embraced a norm rather than rejected it, the calculus ought to be different.
Heller was a taste of power. Five subsequent decisions make it clear that the Court’s majority faction would use that power to weaken our democracy and empower the oligarchs. The Citizens United, Shelby, Brnovich, Rucho, and Merrill decisions show a Court not only careless about legitimacy, but hostile to our democracy.(Merrill might look like it does not belong on this list, but since the Court quickly offered states a path to ignore it, the decision looks like a fig leaf to hide the Court’s rampage against a democracy that includes us all.)
The Citizens United decision in 2010 unleashed torrents of dark money into our politics. As it did in Heller, the Court tossed the existing body of law into the furnace - this time by ruling that Congress had overstepped in its efforts to regulate the flow of money in politics. It did not matter that most Americans know, instinctively, that vast amounts of cash pollute our discourse and tip the scales in favor of the rich and powerful. As in Heller, the legal arguments were weak, and the Court was divided. There was no need to set our political house on fire, yet the Court recklessly chose to do so. They opted to give political weapons to the powerful at the expense of the weak and further erode our trust in each other.
One consequence of Citizens United was the erosion of the legislative branch. Senator Sheldon Whitehouse has described how progress on bipartisan environmental legislation in the Senate ended immediately after the ruling. Overnight, dark money changed the minds Republican supporters of the bill.
As bad as Citizens United was, we now know it was just part of the warm-up act. In relatively short order the Court gutted Voting Rights Act. In the 2013 Shelby decision, the Court nullified Section 5 of the Act. Section 5 required several states with a history of discriminatory voting laws to obtain pre-clearance from the Justice Department before changing their voting laws. Despite clear evidence that states would roll back voting rights if allowed to do so, Roberts once again ignored issued a divided ruling that ended the oversight that had successfully deterred voter suppression efforts. It took about a nanosecond after the Shelby ruling for states to do exactly what the Voting Rights Act was supposed to preclude- unfairly limiting access to the polls in a partisan and often race-based manner.
They followed this with Rucho in 2019. This is the Pontius Pilot ruling (Matthew 27:24), where the Court washes its hands of any obligation to protect voters. Again, a power-hungry majority said that political gerrymandering was simply none of their concern, and that we should fully expect map-making to be a political weapon. As Justice Elena Kagan and the other helpless members of the Court’s minority lamented, “For the first time ever, this court refuses to remedy a constitutional violation because it thinks the task beyond judicial capabilities.”
Not satisfied that they had gone far enough in Shelby by removing the best defense against violations of the Voting Rights Act, the Court further weakened Section 2 of the Act to make it legal to pass discriminatory voting laws. The 2021 Brnovich decision decided, against all precedent and common sense, that what Congress actually intended the law to mean was that it was okay to discriminate, just not too much. Using this new standard, they left in place Arizona laws that clearly disadvantaged Black voters.
All of these decisions were having the intended effect: the erosion of democracy in the states.
Consider the case now under consideration in North Carolina, where a state supreme court justice won re-election but the GOP majority on the court has stayed the certification of that election and is now deciding whether to invalidate the results by retroactively throwing out 60,000 ballots. This isn’t new. In 2023, a hotly contested (more than $29 million in political ad spending) Supreme Court race in Wisconsin was won by a Democrat. That state’s legislature threatened to impeach the new Justice before she even heard a single case. In Ohio, the GOP changed the laws so that judicial candidates would have to run with party labels. That was both truth in advertising, and deeply disturbing.
It’s all about taking power from voters in the states
And why are these state court races so contentious now? Some argue that social issues like abortion and trans rights are driving the rancor. But that’s false. There is broad American consensus on these difficult questions. The real reason is that John Roberts encouraged political gerrymandering. In many states, control of the legislature now comes down to map making rather than campaigns and elections. Several times in the last decade, in both North Carolina and Wisconsin, Democrats have won the majority of votes in state legislative races yet the legislatures of both continued to have large Republican majorities. That’s about maps, not about votes. And, because we still have some state laws that arguably protect voting rights, control of the maps depends on control of the state courts.
Remember, Roberts didn’t just encourage unfair maps, he also pared back federal protection of voting rights. That was important because even when the GOP controls the map making process, the door is ajar to overcoming their advantage. The North Carolina Supreme Court election is contested because control of maps is at stake, but the intervention the GOP seeks is not an affirmation of a partisan map. Instead, they seek retroactively to change voting laws to disenfranchise voters after the polls close.
In state after state, we have seen a decade of GOP efforts to suppress votes, to site polling places conveniently in GOP districts and inconveniently in Democratic ones, to create new and burdensome ID laws, to engage in partisan purges of voter rolls, and more. We have even seen local GOP officials refuse to certify election results because they don’t like the outcome of the vote. This past election the Oligarchs funded ads telling election officials they did not have to certify the vote if Mr. Trump lost. All of this is new. All of it, the result of Roberts’ tenure as Chief Justice.
With gerrymandering secured, and voters unprotected, Roberts went for the kill
Last month, in his end-of-year letter, Roberts took on his critics saying, among other things, that we do not understand the complexities of the law. I readily grant him that the law is not always easy to grasp. So, let’s consider the court’s actions, not just its opinions. Because we all do understand bribery. We understand ethical lapses. Under Roberts’ watch, Court members are allowed to take expensive gifts from those same oligarchs who fund the organizations that fought for decades to capture the Court, folks who also have interests before the court. That does not pass anyone’s test for independence. On Roberts’ watch, Justices are allowed to display partisan sympathies in the most flagrant ways and then still participate in cases that affect the outcome of elections. Then there are Roberts’ decisions on when to hear cases. This election year, Roberts rushed the cases where the outcome could benefit Republicans and Mr. Trump, for example the Colorado 14th Amendment case. At the same time, he decided to slow walk cases that might have a different outcome, for example the Trump immunity cases. Even those of us who have not spent years wearing robes can see what is going on here.
Then there was this: While Roe was still the law of the land, Texas passed a vigilante bill to capture women who would seek an abortion. Lawyers sought to stay the enforcement of that law, and the Supreme Court took up their petition. John Roberts had the opportunity to say that perhaps someday Roe would not be law, but that while it was, he would uphold it. Instead, he engaged in a kind of nullification and let the vigilante law go into effect.
After nearly two decades where precedent was meaningless, where an empowered majority on the court overturned established laws for partisan political purposes, where Justices twisted the plain meaning of the Constitution one way, then the other while asking lawyers to file cases so they could create new legislative realities from the bench, and when the Court itself engages in nullification of rulings it does not like, Americans are left divided. Divided about the Constitution, about our rights, about voting itself. Because of that, a political kind of lawlessness is loosed on the land.
This week in Minnesota, the Republicans in the legislature declared itself in session and elected a Speaker despite the lack of a quorum. Clearly illegal, but why not? In states where the GOP controls the legislature but loses a governor’s race, the legislature moves quickly in lame duck session to strip powers from the incoming administration. Wisconsin did it. North Carolina too.
As Eisen and Scheppel note the Hungarian playbook calls for more than undermining political freedoms. Other sources of truth or legitimacy in a society need to be shut down. Again, already there. Look at the attack on higher education in Florida. Look at book bans across America. Look at what Scott Walker did to unions fifteen years ago. Look at the attacks on “fake news,” and ask yourself if they have not already created space for propaganda to flourish.
Having done as much as he could from the bench to weaken voters and strengthen monied powers, having overseen the erosion of democratic guardrails and the exploitation of the natural tensions in a free society, Roberts went for the kill shot. He declared that presidents are above the law.
So alarmed was Justice Sotomayor, that she wrote,
Never in the history of our Republic has a President had reason to believe that he would be immune from criminal prosecution if he used the trappings of his office to violate the criminal law. Moving forward, however, all former Presidents will be cloaked in such immunity. If the occupant of that office misuses official power for personal gain, the criminal law that the rest of us must abide will not provide a backstop.
With fear for our democracy, I dissent.
Now Donald Trump and the oligarchs around him plan to take full advantage. The arguments over contentious social issues of abortion, trans rights, and gay marriage are important. These fall under the broad category of civil liberties. As democracy watches know, however, civil liberties are often the last thing to collapse when a democracy dies. Not a canary in the coal mine, but a stone atop a grave.
John Roberts brought us here. Donald Trump and the oligarchs want to finish the job.
Are we sleepwalking? No, we are just waking up to the disaster we ignored for too long. I pray we are not too late.