The 2020 Election and What's at Stake - An Interview with Abbey Arletto
It’s been a roller coaster of a year in many ways. The election is around the corner and Washington has been providing dramas daily. We’re grateful for another moment with online personality and political writer Abbey Arletto, answering our most pressing questions on The Supreme Court, Electoral College, Terms Limits and Threats of Civil War.
Dom U’s Francesca J Rose: The notion of Term Limits is floated often but casually. Do Term Limits ever seem to pop up in Legislation or do most Politicians strongly guard against it?
Abbey Arletto:
Term limits is one of those rare things that transcend typical ideological differences. A McLaughlin poll from 2018 found that 89% of Republicans and 76% of Democrats support term limits for Congress and a more recent PSB poll from June of this year, showed that term limits for the Supreme Court was favored by 77% of all Americans (70% of self-identifying Republicans, 72% of Democrats and 68% of Independents). Of course that may have changed significantly for Republicans since, now that they’re looking at a court with a virtually locked-in Conservative majority for decades to come.
As far as term limits coming up in legislation, most of the states that have term limits got them through the citizen initiative process. And more often than not, such initiatives have been struck down and/or repealed by state courts and state legislatures. There’s very little appetite for term limits among the political community, for obvious reasons. Only 15 states currently have them for legislators.
Dom U: Please Describe the Supreme Court’s role in Government.
Abbey:
As De Tocqueville observed, "Scarcely any political question arises in the United States that is not resolved, sooner or later, into a judicial question." The power of the Supreme Court in the US goes back to the Enlightenment ideals of the Founding Fathers, who believed that the power of the State - in order to prevent tyranny and violent revolution - must be restrained by the rule of law. The Founders were deeply concerned about the concentration of power in too few hands – be it physical power, economic power or political power – because they saw it as detrimental to individual liberty and the opportunity for each generation to remake society without resorting to violence and civil war. They knew that there can be neither liberty nor opportunity for peaceful changes without a substitute for power and that substitute is the rule of law. It was the core ideal of the American experiment to build a free society based on law that binds all men equally (at the time of the Framing, literally meaning white men), the governors as well as the governed, the judges as well as the litigants. This pervasiveness of law in American society and the dependency of law upon consent is epitomized in the role of the Supreme Court which takes its powers from Article III of the Constitution, where it’s written that "the judicial power of the United States, shall be vested in one Supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish." Thus the Court is the highest tribunal in the nation for all cases and controversies arising under the Constitution or the laws of the United States. As the final arbiter of the law, the Court is charged with ensuring the American people the promise of equal justice under law and, thereby, also functions as guardian and interpreter of the Constitution. Few other courts in the world have the same authority of constitutional interpretation and none have exercised it for as long or with as much influence. When the Supreme Court rules on a constitutional issue, that judgment is virtually final; its decisions can be altered only by constitutional amendment or by a new ruling of the Court. For this reason, it’s been a sort of consensus between the Democratic Party and the Republican Party to seat justices who aren’t overtly ideological, in order to preserve the legitimacy of the court and maintain a level of neutrality in the one branch of government we don’t have elections for.
The sharp ideological factionalism of the Supreme Court we’re now seeing is actually unprecedented and began after Elena Kagan replaced John Paul Stevens in 2010. Since then, all of the Republican-nominated Justices on the Supreme Court have been far to the right of all of its Democratic-nominated Justices. And while this pattern is widely recognized, it’s not well recognized that it’s actually unique in the Court’s history. Before 2010, the Court never had clear ideological blocs that coincided with party lines. We have always had liberal and conservative justices, but historically speaking they have been more inclined to seek wide majorities in their rulings than what has become a depressing, yet typical pattern of party-line decisions in recent years. The frequent 5-4 splits in how the Justices rule that we have seen a lot since 2016 (which will soon become 6-3 splits after Amy Coney Barrett is seated) are in fact unprecedented. The closest we come to a similar ideological polarization on the court was during the Stone Court of the 1940s, when seven of the nine Justices had been appointed by Franklin Roosevelt. But even then you rarely got sharp splits along party lines, like you see now. Back then you had Democratic appointed justices disagreeing with each other and Republican appointed justices disagreeing with each other and finding common ground across the ideological spectrum. This is not the reality anymore. Aside from Chief Justice Roberts who has sided with the more liberal justices on a few cases, you now have a very hardcore conservative faction who votes as a bloc. This new factionalism is primarily because Republican appointees on the whole are more conservative than in the past, while Democratic appointees as a group have not changed appreciably. For the past 30 years, Conservative elites have consciously sought to overcome what they see as a liberal bias in the legal system, including the courts. That effort is reflected in the rise of the Federalist Society and the related establishment of a conservative legal network which has no equivalent on the Center-Left and is largely attributable to the rightward movement of the Republican Party, which began in the 1980s and culminated with the Tea Party revolution around 2009. So as far as politics go, we’re in fairly uncharted territory now. The Republican Party has become an ideological outlier, far to the Right of mainstream Conservative parties in other Western countries, and their attitude to the courts has shifted from a matter of Constitutionalism to a matter of naked ideology.
Dom U: What can we expect to look out for if Amy Coney Barrett is confirmed?
Abbey:
I think it’s safe to say that we’re facing a more nakedly ideological court with an emboldened far-right political faction that will systematically take up every single liberal advancement since FDR was president and repeal them. We have already seen how far this court is willing to go with a narrow 5-4 majority (ruling in favor of Citizen United, gutting the Voting Rights Act, tacitly allowing partisan gerrymandering, vastly expanding how the Second Amendment is interpreted and so on). With a 6-3 majority and Roberts sidelined, we’ll witness the systematic legislative massacre of what’s left of our liberal democracy and the completion of a plutocratic coup d’etat that’s been under way for decades. This is the wettest of wet dreams for Corporate America and its stooges across the political spectrum. For the same reason, I have my doubts that a Biden presidency will change anything. The Democratic Party Senate is full of self-proclaimed “moderates” who are completely fine with handing over the Supreme Court to our Corporate overlords. That way they can wash their hands and pretend there’s nothing they can do about it, when ruling after ruling chips away at the last vestiges of the social safety net and inequality explodes around us while the planet burns to a crisp.
Dom U: What options do the Democrats have in ensuring a balanced Supreme Court and how well are they executing strategies to ensure that?
Abbey:
There are plenty of ways they can balance the Supreme Court. One way, of course, is to expand it and add more justices. This is actually not even a particularly partisan thing to do. The U.S. Supreme Court changed size seven times in its first 80 years, from as few as five justices to as many as 10. We’ve had 9 justices since 1869, but that’s not writ in stone or the Constitution for that matter. But stacking the courts is not particularly popular among Americans who favor term limits instead. The problem here is that expanding the courts (which should be done all the way down through the Federal Judiciary and not just the Supreme Court) is actually both legal and doable through Congressional action, while lifetime appointments are “sort of” in the Constitution, which guarantees a term of office for Supreme and lower court judges "during good Behavior." That phrasing has been interpreted to mean staying in office until a judge retires (sometimes strategically) or dies. Interpretation of the Constitution is, as I pointed out above, a matter left up to the Supreme Court. So that’s a Catch 22. They’re not likely to change this interpretation when it both directly impacts their careers and means losing their ideological control.
Another possibility is to curb the power of the Supreme Court by imposing limits on the court’s authority to declare federal legislation unconstitutional or completely stripping the court of jurisdiction over constitutional challenges to specific legislation. Congress would simply be making use of its Article III power to decide what kinds of cases the Supreme Court may hear on appeal. Conservatives have in fact tried to do exactly that in the past, when attempting to limit the federal courts’ ability to adjudicate contentious cultural issues such as abortion and school prayer. And while those efforts failed, in part because of a lack of support in the Senate, if Democrats suddenly grew balls and learned to play hardball, there’s nothing stopping a Democratic Congress under a Democratic president from taking that route. But it would require a major political brawl of course, and this is when Democrats usually go cower in a corner.
Sadly I fear Democrats are not up to the task. The Democratic Senate is neither particularly liberal nor particularly combative. There’s already well-known conservative Democrats demuring when the issue of the Supreme Court comes up. Democratic Senators such as Kyrsten Sinema and Joe Manchin are not likely to support any action whatsoever. And the Democratic Senate is sadly led by a cooked noodle in human form who doesn’t understand the meaning of proaction, but that's a general problem throughout the Democratic Party leadership.
Dom U: Trump talks about the Supreme Court strategically to ensure a fair election. Describe how the Supreme Court could affect the upcoming 2020 election.
Part of the reason why Republicans are in such a rush to seat Barrett is because there’s a fairly good chance that Trump will lose the election. Not only the popular vote, but the Electoral College as well. In response to this likelihood, Republicans are doing everything they can possibly imagine to delegitimize the election. They’ll challenge the validity of write-in-ballots, weaponize deadlines by delaying their delivery, make it increasingly difficult for people to vote and a host of other shenanigans. Many of these challenges will go through the courts and may end up on the Supreme Court. If the election is close, this is all the more likely. Then we’re looking at a new Bush/Gore situation, which is funny since Roberts, Kavanaugh and Barrett all helped the Bush legal team steal the election back then.
Dom U: The Electoral College has been criticized by people favoring the popular vote or 1 person = 1 vote. What value did the initial creation of the Electoral College serve and does it make sense today?
Abbey:
The Electoral College was created by the framers of the Constitution during the 1787 Constitutional Convention in Philadelphia. Its main purpose was to protect the new Republic from “mob rule”, by preventing the direct election of the president and the vice president. Madison and Hamilton, who, along with John Jay, authored the Federalist Papers, feared that the new nation would go the way of failed democracies like ancient Athens, where populist passions had overcome the cool, deliberative reason prized above all by Enlightenment thinkers such as them. In the Federalist Papers, Madison wrote that “in all very numerous assemblies, of whatever characters composed, passion never fails to wrest the sceptre from reason. Had every Athenian citizen been a Socrates, every Athenian assembly would still have been a mob”. Alexander Hamilton advocated against the direct election of the president and vice president and for the Electoral College, saying that “immediate election [of the President] should be made by men most capable of analyzing the qualities adapted to the station.” Put another way, voters were not viewed as being able to appropriately assess the president and vice president's qualifications without a little safety net called the Electoral College.
Another, even more controversial part of the history of the Electoral College concerns slavery and the South. At the Philadelphia convention, James Wilson proposed direct national election of the president. But James Madison, a Southern slave owner, responded that such a system would prove unacceptable to the South: “The right of suffrage was much more diffusive [i.e., extensive] in the Northern than the Southern States; and the latter could have no influence in the election on the score of Negroes.” In other words, in a direct election system, the North would outnumber the South, whose many slaves of course could not vote. But the Electoral College instead let each Southern state count its slaves in calculating its share of the overall count. At the time, a full 40 percent of the South’s population was enslaved, and the compromise famously reached by the founding fathers determined that each slave would be counted as three-fifths of a person when it came to dividing the nation into equal congressional districts, thus bolstering the electoral count of slave-owning states without actually affording rights to anyone other than wealthy white men. It also gave disproportionate power to the Southern states, which is probably why eight of the first nine presidential races were won by Virginians. It was the most populous state at the time, with a huge slave population, even though it didn't have the most enfranchised voters.
Interestingly, many proponents of the Electoral College later changed their minds. In 1823, James Madison wrote that: "The present rule of voting for President ... is so great a departure from the Republican principle of numerical equality ... and is so pregnant also with a mischievous tendency in practice, that an amendment of the Constitution on this point is justly called for by all its considerate and best friends." Polls have consistently shown that a majority of Americans would prefer to abolish the Electoral College in favor of a national popular vote. According to the National Archives, the past 200 years have brought more than 700 proposed Constitutional amendments to either “reform or eliminate” the Electoral College and as recently as 1969, a bipartisan effort to abolish the institution came very close to occurring. At the time, 80% of Americans supported abolishing the Electoral College and President Nixon was also on board. The amendment passed the House 338-70, but was killed in the Senate through a filibuster.
Today’s Electoral College has little to do with the Electoral College from the time of the 1787 Constitutional Convention. The main argument for its continual existence is to protect less populous states from becoming electorally irrelevant in a popular vote system that would be determined entirely by the bigger states. The problem with this model is the power it gives to swing states, which have too often handed the victory to people who didn’t win the popular vote. In all, the US has had five presidents who lost the overall popular vote but won the election (John Quincy Adams, Rutherford B. Hayes, Benjamin Harrison, George W. Bush and Donald Trump). And anyone who believes government should be chosen by a plurality of the people should worry about the fact that smaller states are overrepresented while bigger states are underrepresented. In our current system, for example, each electoral vote in California represents over three times as many people as one in Wyoming.
Dom U: Could the Electoral College deviate from the vote of the people and what checks and balances are in place?
Members of the Electoral College pledge to vote according to the vote of the people in their state, but there is nothing in the federal constitution that requires electors to honor that pledge. Many states have enacted laws that would punish so-called “faithless electors" who go against the outcome of the vote, but several states, including swing states like Florida and Ohio, have no legal requirements about how electors must vote. In July of this year, the Supreme Court did however rule (unanimously, no less) that electors are not free agents and must support the will of the people. But this doesn’t mean Republicans can’t abuse various loopholes in the Electoral College system itself.
Nothing in the Constitution says that electors must be chosen by popular vote. Article II provides that each state shall appoint electors “in such Manner as the Legislature thereof may direct.” And in Bush v. Gore, the Supreme Court affirmed that a state “can take back the power to appoint electors.” In battleground states where Republicans control the legislatures, like Michigan, North Carolina, Pennsylvania and Wisconsin, they could claim rampant fraud (something for which Trump, assisted by Barr and Republican loyalists, has been laying the groundwork for months now) which would give Trump justification to ask them to set aside the popular vote and exercise their power to choose a slate of electors directly. In states where the governor is a Democrat but the legislature is Republican, the states would produce competing slates of electors, one certified by the governor and the other by the legislature. These are known as “dueling electors” and would meet and vote on Dec. 14, and the competing results would be sent to Congress. If both chambers of Congress accept the same slate of electors, the election is over and the winner has been found. But if they disagree and the House backs one slate of electors while the Senate backs another, we have ourselves a Constitutional crisis which would most likely be settled by the Supreme Court, now controlled by a 6-3 Republican majority. And that’s how you steal an election.
Dom U: People have been throwing around the idea of civil war. In my hometown, Erie, PA, Trump supporters have been taking photos of houses with Biden Signs in order to threaten them. How much more divided can we get as a nation and are we equipped to deal with the dangers of the divide?
Abbey:
I wish I could be optimistic and say things will be alright, but the fact is that one election won’t solve the deep and systemic issues of this country. Even if Biden wins and Democrats take both chambers of Congress, the Trump Republicans aren’t going away anytime soon and the conservative media information bubble that keeps them radicalized and perpetually angry, regardless of whether their party is in power or not, will keep churning out rage and bile. The Republican Party will keep their rightward stampede with no end in sight. What we have seen under Trump is a Republican Party completely devoid of ethics and decency, utterly lacking in values and humanity and willing to go to any extreme in order to maintain power and force their radical ideology down the throat of America.
Keep current with Abbey on her facebook here.