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Foreword: the Degradation of American Democracy—And the Court

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Foreword: the Degradation of American Democracy—And the Court VOLUME 134 NOVEMBER 2020 NUMBER 1 © 2020 by The Harvard Law Review Association THE SUPREME COURT 2019 TERM FOREWORD: THE DEGRADATION OF AMERICAN DEMOCRACY — AND THE COURT† Michael J. Klarman CONTENTS INTRODUCTION ................................................................................................................................ 4 I. THE DEGRADATION OF AMERICAN DEMOCRACY ............................................................ 11 A. The Authoritarian Playbook ............................................................................................. 11 B. President Trump’s Authoritarian Bent ............................................................................ 19 1. Attacks on Freedom of the Press and Freedom of Speech .......................................... 20 2. Attacks on an Independent Judiciary .......................................................................... 22 3. Politicizing Law Enforcement ...................................................................................... 23 4. Politicizing the Rest of the Government ...................................................................... 25 5. Using Government Office for Private Gain .................................................................. 28 6. Encouraging Violence .................................................................................................... 32 7. Racism ............................................................................................................................. 33 8. Lies ................................................................................................................................... 36 9. Eroding Transparency .................................................................................................... 38 10. Admiration of Foreign Autocrats .............................................................................. 40 11. Delegitimizing Elections and the Political Opposition .......................................... 42 C. The Republican Party’s Assault on Democracy .............................................................. 45 1. Partisan Gerrymandering ............................................................................................. 46 2. Voter Identification Laws ............................................................................................. 48 3. Purging the Voter Rolls ................................................................................................. 51 4. Other Methods of Impeding Voter Registration ........................................................ 55 5. Suppressing the Youth Vote .......................................................................................... 56 6. Other Barriers to Voting ............................................................................................... 58 7. Undoing Election Results ............................................................................................. 60 ––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––– † This Foreword was written prior to the 2020 election but will be published after it. 1 2 HARVARD LAW REVIEW [Vol. 134:1 (a) Eviscerating the Powers of Democratic Governors ............................................. 60 (b) Circumventing Inconvenient Referenda Results ................................................. 62 (c) Delaying or Canceling Elections ........................................................................... 64 (d) Subjecting Voters to the Risk of Death for Political Advantage ........................ 65 8. Conclusion ...................................................................................................................... 66 D. The Republican Party’s Complicity with President Trump .......................................... 66 1. The Republican Presidential Primaries ..................................................................... 67 2. The General Election .................................................................................................... 69 3. The Early Trump Administration ................................................................................ 71 4. The 2018 Midterm Elections ......................................................................................... 73 5. The Mueller Report ........................................................................................................ 79 6. Impeachment .................................................................................................................. 82 7. Post-Impeachment.......................................................................................................... 89 8. Explanations for Republican Complicity and the End of Bureaucratic Constraint ....................................................................................................................... 91 9. The Costs of Complicity ................................................................................................ 96 (a) President Trump’s Unfitness for Office ................................................................. 96 (b) The Coronavirus Pandemic ................................................................................. 100 10. Conclusion................................................................................................................... 105 II. EXPLANATIONS ....................................................................................................................... 106 A. The Disappearing White Majority ................................................................................. 107 B. The Disappearing Christian Majority ........................................................................... 124 C. The Rise of the Neo–Ayn Randians ............................................................................... 135 D. Economic Inequality ....................................................................................................... 148 E. Asymmetric Political Polarization, the Right-Wing Media Ecosystem, Asymmetric Hardball, and Negative Partisanship........................................................ 153 1. Political Polarization ................................................................................................... 154 2. Asymmetric Polarization ............................................................................................. 159 3. The Right-Wing Media Ecosystem ............................................................................. 161 4. Other Mechanisms of Political Polarization ............................................................. 164 (a) Geographic Clustering .......................................................................................... 164 (b) Gerrymandering and Partisan Primaries........................................................... 164 (c) Money in Politics .................................................................................................. 166 5. Asymmetric Hardball ................................................................................................... 167 6. Negative Partisanship .................................................................................................. 171 7. The Coronavirus Pandemic Reprised ........................................................................ 174 F. C oncl usion ......................................................................................................................... 177 III. THE SUPREME COURT’S CONTRIBUTION TO THE DEGRADATION OF AMERICAN DEMOCRACY ......................................................................................................................... 178 A. Greenlighting the Assault on Democracy in the South: Shelby County v. Holder (2013) .................................................................................................................... 179 B. Greenlighting Voter Photo Identification Laws: Crawford v. Marion County Election Board (2008) ...................................................................................................... 184 C. Greenlighting Purges of the Voter Rolls: Husted v. A. Philip Randolph Institute (2018) .................................................................................................................. 187 D. Greenlighting Partisan Gerrymandering: Rucho v. Common Cause (2019) ........... 190 2020] THE SUPREME COURT — FOREWORD 3 E. Gutting Campaign Finance Reform ............................................................................... 195 F. Picking a Republican President: Bush v. Gore (2000) ................................................ 211 G. Blocking the Rigging of the Census: Department of Commerce v. New York (2019) ........................................................................................................................ 215 H. Upholding the Muslim Travel Ban: Trump v. Hawaii (2018) .................................... 218 I. How Constitutional Interpretation Works and Why the Court Won’t Save Democracy ................................................................................................................ 224 IV. SOLUTIONS .............................................................................................................................. 231 A. Entrenching Democracy: An Uphill Battle ................................................................... 231 B. The Dilemma of Constitutional Hardball and the Inescapability of Court Reform ....................................................................................................................
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