With the confirmation of Brett Kavanaugh to the U.S. Supreme Court, America is officially governed wholly by its minority party — led by a president who lost the popular vote, subject to the legislative agenda of a Congress representing less than half of the population, and bound by the decisions of a court now skewed to the right, despite a public that clearly leans left.
Only 26 percent of eligible U.S. voters supported President Donald Trump in the 2016 election. Trump received 46 percent of the vote for those who actually voted.
In certain respects, American citizens are also bound by a constitution that no longer protects from minority rule, as noted by Anne Applebaum in The Washington Post:
In the White House, we have, for the second time in less than two decades, a president who did not win the popular vote. He was elected thanks to the electoral college, a system originally designed to block demagogues, but which no longer does. Electoral college delegates are not independent, as they once were; instead, they vote as their state party chairman decides. The effect is to skew the result.
For many years now the Senate, our senior legislative body, has been grotesquely out of line, too. The 40 million people who live in California get the same two votes in the Senate as the 740,000 people of Alaska. The 20 million people of New York state get the same two votes as the 755,000 of North Dakota. A system created in the 18th century, originally designed to protect smaller states against the larger ones, now has the opposite effect. The inhabitants of rural America have a far louder voice in Congress than the inhabitants of urban America, well out of proportion to their numbers. Nowhere is this more obvious than in the confirmation of Supreme Court justices.
The minority-dominated Senate and the minority-elected president have now chosen Justice Kavanaugh. And, thanks to his appointment, our Supreme Court may well cease to reflect the views of the majority, too.
In fact, a total of four Supreme Court justices have now been confirmed by presidents who lost the popular vote: Kavanaugh and Justice Neil Gorsuch, each appointed by President Trump; and Chief Justice Roberts and Justice Samuel Alito, both appointed by President George W. Bush, who lost the popular vote against Democratic candidate Al Gore.
And the senators who voted to confirm Kavanaugh, giving the court its conservative bent likely for decades to come, represent states covering just 44 percent of the population.
Popular opinion simply does not align with the conservative views held by such appointments:
One recent poll showed, for example, that a very large percentage of Americans do not want to overturn Roe v. Wade. The majority of Americans prefer legal, though restricted abortion; they support affirmative action; they also prefer legal same-sex marriage. Of course, these are not the only (and maybe not even the most important) issues that the court will adjudicate in the next decade. But they are good proxies for “liberal” and “conservative” attitudes on social issues — and on all of them, the new “5-4” court seems likely to be well out of line.
There is an irony here: When they were writing it, the authors of our Constitution were worried about the tyranny of the majority, not the tyranny of a minority. But two centuries after the fact, they have achieved the opposite effect.
Though there is hope that the upcoming midterm elections could reverse power in one or both houses of Congress, it is increasingly difficult for Democrats to break through the barrier of Republican gerrymandering.
According to Dave Wasserman of the Cook Political Report, Democrats must win the generic ballot by at least +7 points to wrest control of the House from their Republican colleagues.
In the past 3 elections, Dems have won ~4% fewer seats than votes. We estimate Dems would need to win House popular vote by ~7% to win barest possible majority. If Dems win the popular vote by 11%, they'll be well on their way to a clear majority.
As Applebaum notes, there is much at stake if Democrats are unable to accomplish this feat:
If the coming midterm elections do not reverse at least one and preferably both of the houses of Congress, that minority will have two years to entrench its power further, through gerrymandering, voter registration laws, court appointments, even changes to electoral law. And then all bets are off as to whether minority rule can ever be reversed.
The experience of other countries in similar circumstances is not encouraging. Historically — think of Saddam Hussein’s Iraq or, indeed, Bashar al-Assad’s Syria — a minority’s attempt to rule over the majority has led to terrible violence. I don’t predict anything like that in the United States, where the rules and traditions are different, but I don’t see how this ends well, either. Young Americans’ faith in democracy is now at an all-time low. As the decisions taken by the U.S. government become ever more distasteful to ever more of them, those percentages will only continue to grow.