How the Supreme Court Endorsed the Authoritarian Behavior of State Legislatures

By giving a free pass to partisan gerrymandering, the Supreme Court literally encouraged Republican lawmakers to grab and abuse as much power as they wanted. So they have.

Demonstrators protest against gerrymandering at a rally outside the Supreme Court on March 26, 2019, during the gerrymandering cases Lamone v. Benisek and Rucho v. Common Cause. (Evelyn Hockstein / For The Washington Post via Getty Images)

If it feels like you’re seeing drastic, disturbing and anti-democratic behavior in state legislatures, you aren’t imagining it. Lawmakers in some of the most gerrymandered states are abusing their power to try to further solidify that power and silence dissent. We have the Supreme Court to thank.

In 2019, the Supreme Court ruled along political lines that it could not review disputes over partisan gerrymandering. The conservatives in Rucho v. Common Cause insisted that the question of how state legislatures draw their maps is a “political” question and thus “nonjusticiable” by the Court. That means, according to Chief Justice Roberts, no matter how badly gerrymandering undermines the public’s representation—the very heart of republican democracy—the Constitution is silent.

The truth is more that the Court silenced the Constitution and set our democracy on a destructive course. As Justice Elena Kagan wrote in the liberals’ dissent, the Court had “encouraged a politics of polarization and dysfunction.” The resulting “unchecked” gerrymanders, she warned, “may irreparably damage our system of government.”

It didn’t take long for her to be proven correct.

The Republican supermajority in the Tennessee General Assembly voted this month to expel three Democratic lawmakers for joining thousands of young people peacefully protesting gun violence. Ultimately, they expelled only the two Black legislators, Justin Jones and Justin Pearson. The legislative body was only able to achieve this extraordinary feat of anti-democratic racism because Republicans had so thoroughly gerrymandered the state legislative districts to achieve a supermajority.

Both expelled lawmakers have already been reinstated by their local counties. That doesn’t change the fact that the 75–24 supermajority used their power not to protect school students from gun violence, but to try to strip 200,000 voters of their representation.

Wisconsin is another state where Republican lawmakers wield overwhelming power due to partisan gerrymandering and are considering abusing that power to hold onto it. Earlier this month, voters overwhelmingly supported the election of Janet Protasiewicz to the Wisconsin supreme court, flipping the court to having a liberal majority for the first time in years. But Republican Rep. Dan Knodl also won his race for a vacant Senate seat, giving Republicans a supermajority. This almost immediately fueled speculation that the supermajority might use their power to impeach the newly-elected Protasiewicz.

Where the U.S. Supreme Court has failed to stand up for democracy, state supreme courts can and have made the difference. The question is: for how much longer?

Protasiewicz was elected both to protect Wisconsinites from a 19th-century abortion ban and because voters no longer want to live in a gerrymandered state. Her election poses an imminent threat to the power Republican lawmakers have been hoarding for years. If they don’t act immediately, they may wait until Protasiewicz issues decisions they don’t like to fabricate a justification for impeachment.

In North Carolina, Republican lawmakers are trying to harness their gerrymandered power through what many are speculating was a form of voter deception. State Rep. Tricia Cotham ran as a Democrat in a reliably blue district and won by nearly 20 points in 2022. Despite being incredibly outspoken about her progressive positions on abortion access, LGBTQ+ nondiscrimination, minimum wage and other issues, she announced this month that she was changing her party to Republican.

Her “Trojan horse” switch gives Republicans a veto-proof majority in the House, which they already had in the Senate. Now, there’s little that can stop them from banning abortion, imposing anti-trans discrimination, and passing other laws that a majority of North Carolinians don’t actually want.

Add to this that the North Carolina supreme court, equipped with a new Republican majority among its justices, seems poised to toss recent redistricting rules to allow Republican lawmakers to gerrymander the state even further—along lines a previous court said were too racist to withstand scrutiny.

Justice Kagan’s was a warning more dire than she or the liberal justices probably realized. By giving a free pass to partisan gerrymandering, the Supreme Court was literally encouraging Republican lawmakers to grab and abuse as much power as they wanted. So they have.

But there is hope. The battle for the Wisconsin supreme court was crucial in dragging our democracy back from the brink there. Where the U.S. Supreme Court has failed to stand up for democracy, state supreme courts can and have made the difference. The question is: for how much longer?

Republican lawmakers know these courts are the last hurdle preventing their authoritarian turn and prioritizing them may be the last chance to preserving our system of government as we know it.

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Rakim H. D. Brooks is the president of Alliance for Justice and Alliance for Justice Action Campaign and a public interest appellate lawyer.