By Samuel Damren
American exceptionalism contains a bundle of founding principles for democratic governance. The principles somewhat differ depending on the commentator, but they all contain provisions for “checks and balances” limiting government, protecting individual rights, and influencing popular sovereignty through representational government.
The principles were unique for the times; hence, exceptional. The ideals were one thing; the reality another.
The composition of America’s original body politic was markedly undemocratic.
Enslaved persons and women were excluded, and the 1777 Articles of Confederation prohibited “paupers and vagabonds” from exercising the franchise and other liberties.
Founding Father John Jay spoke for many of America’s elite, when he famously, but privately, observed that “the people who own the Country ought to govern it.”
Jay was the first chief justice of the U. S. Supreme Court.
With the end of slavery and the later extension of the franchise to women, American democracy became more inclusive. But significant barriers remained to full participation in the democratic process for minority citizens. Spurred by the Civil Rights movement, the federal courts and government finally began to address these impediments through the Voting Rights Act of 1965.
When Barack Obama was elected President in 2008, the ideals of American exceptionalism seemed on a path to actual realization. The election results reflected the will of the voters and demonstrated that corrupt and discriminatory electoral practices of the past could be successfully overcome.
That trajectory was altered in 2010 beginning with the Supreme Court’s 5-4 decision in Citizens United v. Federal Trade Commission which struck down prohibitions on corporate spending used to influence elections and continued in 2013 in another 5-4 decision in Shelby County v. Holder which struck down – as supposedly no longer necessary – parts of the Voting Rights Act.
In the aftermath of the 2020 election, Republican-controlled state legislatures and governors began to place new obstacles on the exercise of the franchise. These laws became more refined in succeeding election cycles, and newly cast “Jim Crow” tactics returned to again limit participation by minorities, women, and young Americans in the electoral process.
Equally fundamental to insuring democratic elections through free access to the ballot is the principle that candidate districts in a state should not be gerrymandered to disadvantage one party either by cramming its supporters in as few districts as possible or by spreading them over multiple districts to dilute their voting power.
Here in Michigan, we have all been recent witness to what happens when citizens are permitted to cast their ballots for candidates in districts that are fairly drawn.
After decades of Republican gerrymandering, and because of the successful Citizens’ ballot initiative placing responsibility for drawing election districts in the hands of a non-partisan commission, Michigan Democrats took over the state House and Senate in 2022.
Traditionally, the U.S. Supreme Court has been reluctant to adjudicate gerrymandering cases, but equally reluctant to foreclose the possibility that it could do so in the right case. However, in 2019 in Rucho v. Common Cause, in yet another 5-4 decision, the Court in an opinion by Chief Justice John Roberts held that disputes involving partisan gerrymandering were “non-justiciable” in federal courts and that only states courts, legislators, or voters can properly decide these “political questions.”
In Alabama v. Milligan, decided this June, based on Section 2 of the Voting Rights Act of 1965, the Supreme Court excepted racially discriminatory gerrymandering from the non-justiciability prohibition set forth in Rucho v. Common Cause. Thus, although the Court recognized racially discriminatory gerrymandering as a corruption of the electoral process and the proper subject for judicial intervention, the majority justices remain unwilling to prevent this counterfeit of democracy in cases of purely partisan gerrymandering.
The nuance to denying protection of democratic principles in some venues but not in others despite the fact that the methodology of attack on those principles is the same, raises another issue.
Can a justice who is compromised through the repeated and continuing receipt of substantial gifts and benefits from partisan activists continue to legitimately serve on the Supreme Court when judges on lower courts who might commit identical improprieties would be severely disciplined and removed from office?
Judicial independence is a two-way street. A justice who depends on a billionaire partisan to finance lavish vacations and other significant benefits to his family is not independent of that influence.
If impeachment were the only avenue to address this relationship, and the partisan billionaire’s influence over his party could block the supermajority in the Senate required to remove the justice from office, then meaningful redress to this improper relationship is non-existent.
As long as Clarence Thomas remains on the Supreme Court, many will rightly question the integrity of other judges: “Who is your Harlan Crow?”
Questions will also abound in judicial circles: “Are justices of the Supreme Court – unlike all other judicial officers – not only unburdened by principles of stare decisis but also unburdened by ethical constraints? If Clarence Thomas can have a Harlan Crow, why not me?”
Crow might have his own questions: “Could additional disclosures in the prospective 2023 filings of financial reports by Justice Thomas and Justice Samuel Alito now due in September, finally prod the Chief Justice to action? If stonewalling fails, will I take the fall or should Clarence do so in deference to the benefits I have accorded his family?”
A question that the current Chief Justice may be pondering is whether Clarence Thomas’s relationship with Harlan Crow can be portrayed as something other than violative of American exceptionalism and judicial integrity, that is, as a “political question” similar to partisan gerrymandering; and, therefore, simply part of the “give and take” of American democracy?
We know how former Chief Justice John Jay would answer.
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Samuel Damren is an attorney and author, and an alumnus of Wayne Law School.
