The Grand Bargain?

 The fight over partisan gerrymandering in Texas that dominated the headlines this past week has shown another spotlight on just how little protection remains for voting rights in America. Thanks to a 2019 Supreme Court decision, there is essentially no upper limit on how nakedly partisan a gerrymander can be—so long as it does not intentionally target race. 

And now—the New York Times points out this morning—the Court's conservative majority appears poised to weaken these safeguards even further—specifically, by stripping section 2 out of the landmark Voting Rights Act. The result would be that plaintiffs going forward would no longer be able to bring after-the-fact challenges to redistricting maps that dilute minority voting power. 

The upshot of these trends is that a growing number of Republican state parties can essentially use their control of the state house to secure perpetual single-party rule. As the Times quotes one law professor on the subject: 

"We tell ourselves this story that every two years, voters go into the voting booth and pick their member of the House of Representatives [....] And right now it’s the other way around. The politicians are going into a room and picking their voters."

In other words, we now live in a country where, as Brecht once sardonically put it, in a 1953 poem about the East German autocratic state—the government has the privilege to decide when to "dissolve the people / and elect a new one"—rather than the other way around. 

But surely—we think—Chief Justice Roberts would put a stop to this trend before it too fatally compromises democracy. He seems so nice and reasonable, after all—Surely he doesn't want to completely ruin the whole premise that we are a constitutional democracy—where the people get to elect their government, rather than the government electing the people. 

And yet—I said the same thing in the lead-up to the Trump immunity ruling. I said: sure, the Supreme Court rejected the fourteenth amendment challenge to Trump appearing on the ballot. But that's because they're preparing a "grand bargain" in which they will allow all the criminal charges against Trump to proceed in the courts.

And then lo—they issued a decision effectively granting Trump total immunity for official acts. 

We keep clinging to this theory of the "grand bargain." Every time the Supreme Court this term seemed to expand Trump's executive powers and let him dismantle federal agencies and ignore for-cause removal restrictions, I said to myself: sure, we're going to lose in this court on all the "unitary executive" stuff. But it will be balanced out by the Court ruling our way on immigration and human rights issues. 

But then the court let the administration get away with deporting people to South Sudan without respecting their right to a hearing under the Convention Against Torture. And when it came time to consider the birthright citizenship case, they ignored the merits and handed the government an extraordinary procedural victory by barring nationwide injunctions. 

But still—people clung to the theory of the "grand bargain." I listened to a Lawfare podcast episode last week, in which a Harvard law professor argued that the court here was merely playing the "long game." They were calculatedly giving Trump a win on the nationwide injunction issue for now, so that they could justify ruling against him later on other issues without risking a constitutional crisis. 

But the podcast hosts then note: they recorded this conversation "before the Supreme Court's recent unsigned opinion allowing the Trump administration to begin mass firings at the Department of Education." 

It's not clear where exactly, then, the Supreme Court plans to even the score by ruling against the administration. They don't seem to care about Trump firing people without cause, in violation of statutes shielding the heads of quasi-adjudicative boards from political interference—since the Court views these job protections as a violation of the "unitary executive" principle. 

They don't seem to care about the administration impounding resources appropriated by Congress or dismantling federal agencies established by law. 

They don't seem to care about the due process rights of people to receive at least a notice and hearing to bring Convention Against Torture challenges, before being dropped into South Sudan or Eswatini—i.e., countries to which they have no prior connections, and which have abhorrent human rights records or, in the case of South Sudan, effectively no functioning central government. 

Where exactly is the evidence of the "grand bargain"? Where do we see any signs of the "long game" to come? 

Can we assume the Court's conservative majority actually cares about birthright citizenship? Why do we think they would draw the line there, but not elsewhere? 

And, in all the gerrymandering line of cases, they haven't cared so far about Republicans consolidating single-party rule in southern states. What makes us think they would start to care now? 

Why do we still think there must be some "grand bargain" behind all this—instead of being what it flatly appears to be on its face: i.e., a long track record of the court's Republican-appointed majority ruling in favor of Republican elected officials on every key issue. 

But no—we think. It can't be. Roberts seems too nice, as we said above. He seems so reasonable and kind. 

But, as William Hazlitt once wrote of Lord Eldon (the Tory Lord Chancellor of the early 19th century), he "is an exceedingly good-natured man; but this does not prevent him, like other good-natured people, from consulting his own ease or interest."

Hazlitt goes on: "mere good-nature (or what passes in the world for such) is often no better than indolent selfishness. A person distinguished and praised for this quality will not needlessly offend others, because they may retaliate; and besides, it ruffles his own temper." 

Hazlitt's version of Lord Eldon indeed sounds a great deal like Roberts. He has a genius for understanding the intricacies of the rules of equity. Surely, with all these intellectual resources at his command—one thinks—he cannot be a mere tool of party politics. And yet—when his principles are put to the test—he unerringly rules in the direction of his partisan self-interest: 

"[T]here is a limit even to this extreme refinement and scrupulousness of the Chancellor [Hazlitt writes....] At the approach of the loadstone [of party interest], the needle trembles, and points to it. The air of a political question [...] is a thumping make-weight, where all is so nicely-balanced beforehand."

We must not be too fooled, then, by Roberts's famous "good nature." It is not incompatible, as Hazlitt points out, with a distinct partisan bias. And indeed, it may be that the very same "good nature" will ensure he rules in Trump's favor every time. 

As even the Harvard law professor in the podcast pointed out, Roberts seems anxious to avoid a direct confrontation with Trump. Roberts, like Lord Eldon, "will not needlessly offend others [i.e. Trump]"—as Hazlitt puts it above—"because they may retaliate; and besides, it ruffles his own temper." 

And so, his great solution to this constitutional crisis—his great strategy for avoiding an open break with Trump which might prompt the latter to outright defiance of the federal courts—may ultimately amount to simply giving Trump everything he wants—to letting him get away with any abuse of power he has a fancy to commit. 

In which case, Roberts will have destroyed the Constitution in order to save it. And if that's the only "grand bargain" he ultimately has waiting for us, it's not worth the price. Such is all we stand to inherit from the Chief Justice's famous "good nature."