The Forum

A leaked majority opinion showed the U.S. Supreme Court ready to overturn a landmark abortion decision, and Nancy Pelosi felt sick to her stomach.

“I need a historic response to meet this earth-shattering moment,” the House Speaker emailed moments after the news broke. We nodded along, pleased that Democratic leadership agreed that relentless Republican constitutional hardball demanded an extraordinary response.

The message, Pelosi continued, needed to be so powerful, so resounding that there could be no question of our opposition.

We read on, eager to learn what Pelosi had in mind. Would Democrats rush to codify Roe v. Wade into law, given control of Congress and the White House, as they’d vowed during several campaigns? Would they push to end the filibuster that so stymies majority rule, or advance Washington, D.C. and Puerto Rico statehood to rebalance the anti-majoritarian body itself?

Perhaps there would be a renewed push on voting rights now that gerrymandered state legislatures seemed likely to enact new abortion restrictions that voters opposed? Or maybe this would be the time to reimagine the high court itself, packed with conservatives appointed by presidents who lost the popular vote.

It turned out, though, that the speaker had a different resounding message in mind: “Will you rush $15 to stand with me on the right side of history?”

This joint appeal—strike a symbolic “stand” with a party persuaded it’s positioned on history’s “right side” while also handing over a campaign donation to fund legislators often at a loss to do much beyond registering symbolic dissent—sums up the malaise afflicting liberal politics at a moment of grave democratic reckoning. And last week’s formal release of the Supreme Court decision in question, Dobbs v. Jackson Women’s Health Organization, drew forth the same inert body of place-holding responses from national Democratic leaders. ”This cruel ruling is outrageous and heart-wrenching. But make no mistake: the rights of women and all Americans are on the ballot this November,” Pelosi said in a statement. In a post-Dobbs press conference, President Joe Biden finished his remarks with the same appeal: “With your vote, you can act. You can have the final word. This is not over.” Other House Democrats went full in on dubiously coherent symbolism: a group of them flanked a contingent of outraged pro-choice protestors outside the U.S. Supreme Court and started in singing “God Bless America”—a weird reprisal of the House’s response to the terrorist attacks of September 11, 2001.

It’s easy to mock such tone-deaf flourishes, but the thinking behind them is dangerously out of step with how our politics are changing—almost delusionally so. Faced with newer and bolder efforts from the right to secure power and shut down the basic functions of democratic governance, leaders of the Democratic Party continue to think, act, and campaign as if they are still fighting the reactionary and antidemocratic forces on the right on a level playing field. It’s as though the ongoing structural derangements of our politics—the rigging of the federal courts, the lockdown on voting rights, the paralysis of the Senate under the filibuster, the gerrymandering of state and federal legislative districts, the hostile ideological seizure of the electoral process culminating in the attempted right-wing coup of January 6, 2021—simply hadn’t happened.

Pelosi was hardly the only Democratic leader who appeared to be caught flat-footed by the shocking, if predictable, news that an illegitimate right-wing Court majority was repealing the bodily autonomy of more than half of the U.S. population. The broad refrain reverberating throughout the sanctums of Democratic power in the wake of the Dobbs ruling followed the same playbook Pelosi adopted in the immediate aftermath of Alito’s leaked draft opinion: Implore citizens to do much more (without ever quite saying what this more might entail, in institutional and logistical terms) while bemoaning the powerlessness of Democratic leaders who control the White House and both branches of Congress to do much of anything. As if to drive the point home, President Biden followed up his plea for increased turnouts in November with a reiterated pledge that he wouldn’t use Democratic congressional majorities to expand the Court and dilute the power of its runaway right-wing majority—leaving citizens urgently demanding action to save reproductive rights and freedoms asking the question, What are we voting for, exactly?

Indeed, if Democrats were to turn their current strategy into a slogan, it would probably be something like this: Vote harder. Followed closely by: NothingwecandoblahblahManchin. And then: Hey, what about those 15 bucks?

In fairness, the vote harder refrain does bear on one key element of the crisis in democratic governance: with two Senate Democrats opposed to breaking the filibuster, the majority party needs to add at least two more to have any remote hope of advancing its agenda. But the obsessive focus on increasing the Democratic numbers on Capitol Hill—a long shot, in any event, for reasons we will discuss below—obscures the larger problem. It’s not that the mandate of protecting democracy and our basic rights simply requires more Democrats. We need better Democrats, who actually understand what they’re up against and have a plan to fight back.

To begin with, the challenge facing the sole major party still committed to small-d democracy is not just about winning more power. It’s about using it—making sure that all of our candidates back a cut-throat institutional reform agenda rather than reinforcing lackluster and fatalistic incumbents because that’s the way it has always been done. After all, some of the necessary actions to jump start the country out of its decades long drift into social democratic sclerosis—codifying Roe, protecting voting rights—are things they promised last time, knowing full well the challenges of filibuster abolition and negotiating with the terminally fickle senator/king/coal baron from West Virginia. So when the leadership’s lazy response is “vote harder,” they can hardly be surprised by the skeptical retort of “Yes, but then what?”

There’s no point in shunning the obvious truth: Democrats have earned this cynicism. Yes, the nation is in this dangerous position because the Republican Party has swerved decisively toward authoritarianism. But this lurch has not happened in a vacuum. Over and over again, the forfeit of democratic freedoms has come about via the right wing’s opportunistic exploitation of a pronounced pattern of Democratic toothlessness in the face of bared GOP fangs. The smashed guardrails and discarded norms have mounted year after year, visible to all who cared to see. The scrupulous nonpartisan institutionalists Thomas Mann and Norm Ornstein wrote their jeremiad outlining the antidemocratic fallout of asymmetric polarization in Washington, It’s Even Worse Than It Looks, a decade ago.

But that message has bafflingly yet to register with the Democratic party’s profoundly change-averse leadership. They have operated on institutional autopilot as right-wing opponents have gleefully annexed one revered institutional norm after another to the project of one-party minoritarian rule. A partial list of these power grabs includes: two terms of obstruction and wildly partisan congressional investigations during the Obama administration; a stolen Supreme Court seat; the napalming of the constitutional order during the Trump administration by way of naked contempt for congressional oversight, judicial authority and presidential conduct culminating in the GOP endorsement of blackmailing allies for partisan gain;  a radicalized high court assault on voting rights; the most extreme partisan gerrymanders in modern history; an insurrection seeking to institute a right-wing coup, replete with talk of martial law, seizing voting machines and overturning election results from inside the White House. One among countless indicators of our broken system of simple truth-telling and public accountability is that the party aligned behind the “Big Lie” about a stolen 2020 election is in better shape to be successful today than it was on January 6, 2021; indeed, in several pivotal swing states, this spring’s GOP primaries saw ardent defenders of the Trumpian Big Lie win gubernatorial and secretary of state nominations, casting real doubt on the prospect of that actual election results will have any bearing on the outcome of the 2024 presidential balloting.

Illustration by Evangeline Gallagher

How have Democratic leaders been so stolidly resistant to facing up to the true scale of this threat in anything other than fundraising appeals? Regrettably, advancing age and the institutional complacency that often comes with it play a major role here. The members of the Democratic Party’s leadership caste continually yearn for the long-vanished shade of  “The Party of Lincoln.” They pine for the camaraderie of Tip O’Neill and Ronald Reagan and  the difference-trimming compromises struck in the Senate cloakroom half a century ago—and by indulging in these clubby reveries before the public, they continue to transmit the message that the GOP is a normal political party, committed to upholding basic constitutional rights, freedoms, and power-sharing norms.

This state of political and intellectual sclerosis is imperiling the future of our democracy. Democratic leaders, against all available recent evidence, cling to the legitimacy of our institutions and system when the authoritarian crisis in our democracy is deeply embedded within the institutions themselves. Put another way, we are facing a profound structural reckoning: the institutions are illegitimate, and the system has been hijacked.

Consider the most antidemocratic, and least accountable, branch of our federal government: the Supreme Court. During decades of organized legal reaction on the right, Democrats have retained their deluded romance with a  high court that has never loved democracy back. President Barack Obama presided over eight years of hard-right obstruction in Congress, and still imagined that if he nominated a reasonable white man to fill Antonin Scalia’s seat, the GOP would need to give him a vote. (Meanwhile, Patrick Leahy of Vermont, the ranking member of the Senate Judiciary Committee in Obama’s second term, sat on his hands and allowed the GOP to staff federal district and appellate courts with a vast corps of young Federalist Society ideologues.) Biden sat at Obama’s side and took away from that experience the dangerous delusion that, during his own presidency, he could sit down with declared Obama obstructionist Mitch McConnell and other scorched-earth Republican leaders suddenly acting under the mystic directives of a bipartisan “epiphany,” and make deals.

The same self-inflicted institutionalist myopia has hobbled Democratic leaders during repeated legislative battles in Congress. They missed the 2010 Wall Street Journal op-ed in which Karl Rove laid out the GOP plan to gerrymander Congress and swing-state legislatures for the next decade. They believed, as Biden did, that good Republicans would help them break the fever after Trump’s defeat—that given enough patience and fidelity to established norms, the old rules could work again. This approach ignored not only the rejectionist postures of Rove and McConnell, but also the declared intention of no less a bipartisan icon than John McCain to blockade every Supreme Court appointee nominated under a Hillary Clinton presidency.

This is why the recent history of Democratic control in both chambers of Congress has yielded so little in terms of actual measures that might improve the embattled freedoms and livelihoods of most Americans. Democrats squandered a Senate supermajority in 2009 without codifying Roe, enacting basic reforms to union organizing, passing ambitious climate legislation or locking in voting rights. They squandered a national election in 2020 when they knew all too well the antidemocratic power grabs on the horizon and the structural time-bombs ready to detonate, but failed to construct a mandate or any particular reason to turn out besides getting rid of Trump. This, too, was a study in self-interested institutional complacency: They believed that they could raise enough money via ads foregrounding the excesses of Trump and his allies to keep the consultant class fat and happy, that gerrymanders couldn’t be forever, that there would always be a next election. Time and again, they were wrong, hopelessly. Time and again, the strategy failed to adjust to reality.

Coming into a decisive midterm cycle in which the party’s razor-thin congressional majorities are at risk, the situation is dire. Any plan to fix it must reckon with the full complexity of the problem, the limited time available to would-be forces of reform, and the many barriers that stand in the way. Essentially, we must repair a locomotive as it careens out of control at top speed.

None of it will be simple. We need a long-term mass movement to reform our constitutional structure, tomorrow. It’s starkly clear that the Democrats are the only party that can lead this initiative. And this is why we can no longer tolerate a status quo in which we are closer to seeing our democracy slip toward all-out autocracy than we are to seeing a battle plan from Democrats that doesn’t involve your credit card and a recurring ActBlue payment.

A key focus of this effort has to be a wide-ranging effort to rethink the powers we’ve carelessly bequeathed to the Supreme Court. Right now, the U.S. Supreme Court is lost for a generation, perhaps longer, and nobody is prepared for how this is going to remake our nation. (If Amy Coney Barrett lives to be Ruth Bader Ginsberg’s age, she will remain on the Court until 2059.)  Roe v. Wade is now officially dead—and Clarence Thomas’s concurring opinion in Dobbs makes it clear that this Court will not stop with the repeal of reproductive choice: It’s an easy path to ending marriage equality and unwinding the privacy and contraception protections in other recent landmark decisions such as Griswold v. Connecticut, Lawrence v. Texas, and Obergefell v. Hodges. The entire federal regulatory system is in grave danger. Open carry for guns has became the new normal in New York State Rifle & Pistol Association v. Bruen, the decision the court handed down the week prior to Dobbs. What’s left of the Voting Rights Act could be eviscerated in the Court’s next term.

After that, the laundry list could expand to include virtually all venerable safeguards of basic civil liberties: media protections, libel law, revising the Independent State Legislature Doctrine to grant gerrymandered state legislatures unfettered power over elections, and even an overhaul of  the Commerce Clause in the name of state sovereignty. That there is no constituency for this extremism does not matter; the state legislatures are safely gerrymandered, and the federal courts teem with Federalist Society ideologues.

On all these fronts, Democrats have been on their heels. They’re either willfully blind to, or inexcusably ignorant of, the open and lavishly funded effort on the right for forty years and counting to steer the high court into their permanent orbit of influence. Nothing else can explain why there has been zero retaliation from Democrats after Mitch McConnell shrunk the Court in 2016 with a made-up rule, nuked the filibuster to jam Neil Gorsuch and Brett Kavanaugh through on party-line votes and then reversed the logic of his own fabricated rule to install Barrett for the rest of her life one week before the 2020 election. For all the talk about Court expansion during the 2020 Democratic primaries, no one took the idea  seriously enough to even make the case for it after the mobilization of core African American constituencies in Georgia delivered the Senate majority to the Democrats at the eleventh hour. If ever there were a clear message to reimagine the basic institutions of federalist rule along a sturdier axis of social democratic inclusion, it was right there in the outcome of the Georgia Senate runoffs. Yet the debate on the Democratic side once again devolved into another round of wishcasting: they won’t really do it, and even if they do it won’t be so bad, and even if it’s really bad, there’s always November.

But November is now a casualty of this disastrous antidemocratic realignment—not its cure. Look at the present configuration of the high court for a bracing object lesson. Given that every Republican supported McConnell’s blockade of Merrick Garland, it’s almost impossible to imagine Democrats placing anyone on the Supreme Court without controlling the White House and the Senate. And the demographics of the Senate are really, really bad and getting worse. The historical malapportionment of the upper chamber—which hands two senators to Wyoming even though it is 68 times smaller than California, and tinier than 115 U.S. counties—along with the filibuster, means an endlessly renewable veto power for the Republican coalition of white, rural, and small-state voters. Put another way, the GOP Senate caucus, regardless of whether it attains a formal majority, is overrun with right-wing lawmakers in the Joe Manchin mold.

Longer-term demographic trends are on track to enshrine the Senate as the central bastion of white minority rule. Half of all 330 million Americans live in nine states. By 2040, half of us will likely live in eight states, represented by a mere 16 senators. How does that break down along partisan lines? Well, right now two-thirds of us live in 15 states, with 30 senators—22 Democrats and eight Republicans. The other third—states decisively whiter and more Republican—are represented by 70 senators, 42 Republicans and 28 Democrats. That’s a filibuster-proof veto for 41 senators representing as little as 24 percent of all Americans. With this hard-white skew as the prevailing apportionment of power in the chamber formerly known as the world’s greatest deliberative body, nothing—not voting rights, not reproductive rights, not sensible climate action or immigration policy—will ever withstand the veto power of red-state lawmakers.

There’s another key structural reason that “vote harder” isn’t a solution to the democracy crisis: a heavy preponderance of the districts Americans vote in are hardwired for minority rule by gerrymandering. Right-wing lawmakers have radically gerrymandered legislatures in Ohio, Wisconsin, North Carolina, Pennsylvania, Florida, Texas, Georgia and elsewhere to assure they will never return power to Democrats even if hundreds of thousands more voters try to vote them in. Abortion will be functionally prohibited not only in Oklahoma—where, by the way, a majority of voters support keeping it legal—but in many purple or blue states, as well.

In Florida, which Ron DeSantis won in 2018 by 33,000 votes and Trump carried in 2020 with 51.2 percent of the vote, the GOP has corralled Democrats into one-third of the state house. Republicans don’t even bother running candidates in more than half the districts they allow Democrats to win. Democrats could register voters, turn out in droves, vote much, much harder . . . and win the exact same number of seats. Citizens in similarly rigged states, such as Wisconsin and North Carolina, can tell their Florida counterparts all about the legislation that follows once your state is a “democracy” in name only—a wide array of reactionary from crackdowns on public sector unions and abortion access to critical race theory bans and anti-trans accommodation laws. You’re allowed to vote; it just doesn’t matter.

The same general pattern holds for the national U.S. House map, even after a chorus of misguided pundits declared the gerrymandering wars were returning to a bipartisan golden mean. Such sunny prognosticating from those who completely misread how badly the map was gerrymandered last time continues to willfully overlook how long the fallout from this latest geographic vote-rigging is going to endure. A handful of individual states—Michigan, Virginia, and Colorado—might be in better shape. Yet the maximal Democratic gerrymander in Illinois is no match for the seats the GOP has gained or wiped off the board in Texas, Georgia, Arizona, Florida and Tennessee. Nor is a complacent “both sides” outlook in any way equal to  the lawlessness that will lock in a potential 13-2 district map in Ohio after GOP politicians simply ignored the state constitution and multiple court orders to employ a more equitable model of districting.

This is not to be pessimistic or bleak. But it is to provide an accurate portrait of what any serious battle plan to rescue our democracy must fix. This is not a partisan agenda. It is an effort to salvage our political system from well-organized and powerful forces that would steer it ever further into the grip of authoritarian single-party rule.

We must begin by building a long-term, grassroots movement with a judicial component to reform American political institutions, which are broken beyond repair. So here is a message for the midterms: Send two more Democratic senators and this is what we will do.

• The Supreme Court must either be expanded or fixed by imposing term limits that routinize appointments and end the bitter, high-stakes confirmation wars. No more blue-ribbon studies by polite institutionalists who yearn for a Court appointment of their own. Perhaps the wake-up call of the Dobbs ruling will bury once and for all the self-serving myth that the Supreme Court is an apolitical institution—and can move us closer to making it a political institution accountable within a democracy.
• Adding D.C. and Puerto Rico as states is a necessary measure to balance out the malapportionment of representation in the Senate—as well as a way to finally give full representation to marginalized racial populations deprived of it for far too long. But incrementally and belatedly bringing more states into the union is not to be enough to fix the Senate. We need to talk much more seriously about breaking up California, New York, Texas and other states whose citizens are denied anything approaching equal representation in the Senate. Perhaps the best model for reform of the Senate comes from Wharton School of Business Professor Eric Orts. He proposes that we preserve federalism by awarding one senator to each state, and then allocate the rest by population: 12 to California, nine to Texas, six to Florida and New York. This would be entirely constitutional—and go a long way toward righting the Electoral College bias as well.
• We must reform the way the U.S. House is elected in order to end gerrymandering, reduce polarization and dismantle the perverse incentives erected to render lawmakers beholden to extreme primary bases. The best approach is the Fair Representation Act, introduced by Reps. Don Beyer, Jamie Raskin and Ro Khanna in the House; it combines larger multi-member districts with ranked-choice voting, creates swing districts in every state for every voter, and scrambles a party system that has become toxically polarized.

Make no mistake: Nothing on this agenda is going to happen overnight. After all, it took decades for Republican elites to go from the launch of their movement to overturning Roe, and it might take as many years to build momentum for the real and substantive restoration of democracy in America. In the meantime, we must face the practical reality of a reactionary, unpopular, illegitimate Supreme Court imposing its will on the rest of us. For starters, a constructive effort to trim back the unfettered progress of authoritarian-minded judicial supremacy will likely require nullifying antidemocratic Supreme Court decisions and building parallel social institutions in blue states. We may need to figure out what we can build and defend in the places where we are allowed to win and hold power.

This may sound like a tall order, but the simple fact is that there is no defending the legitimacy of institutions that have been intentionally hijacked and hollowed out. We must instead build new ones worthy of trust and faith. It’s either that or convince hundreds of thousands of California and New York Democrats to establish residency in North Carolina, Montana and Wyoming—or hope that a meteorite lands on One First St. NE, and Biden doesn’t appoint a new 6-3 conservative majority to replace the old one.

Yes, it would be nice if Democrats bucked history, held the House and expanded their Senate majority this November. But we should also be honest about the formidable odds against that outcome—and what we must do if this latest iteration of the “Vote harder” project fails as badly as its recent predecessors have. If the Senate is lost this year, it is gone until 2027 at the earliest—and that assumes that Republicans will allow Democrats to win elections in the first place; something that is a remoter prospect than ever after the 2022 GOP primary cycle. The governors, secretaries of state and local election officials who refused to go along with the GOP’s post-election coup in 2021 will likely be gone, and so will the congressional majorities that voted down the spurious objections to the results in the swing states won by Biden.

Vote harder? Sure. But Democrats must also work harder, fight harder, think bigger, act bolder and step forward, now, or else . . . well, there is no or else. It can’t happen here? It has already happened here, and the shock of the Dobbs decision may have finally served notice even to deference-minded Democrats that there is no path forward without playing hardball and without radically reimagining the constitutional order that was designed more 235 years ago over candlelight by slaveholders.

Either we fight back now or it all slips away—a republic we could not keep, truths that were once self-evident withered and sour, the worst form of government except for the bigoted authoritarianism that would replace it, and the endless spectacle of an ill-gotten 6-3 Court majority shredding an already threadbare safety net and rolling back rights for millions. And the kicker here is that all this antidemocratic power  is being mobilized in the service of a truly deranged effort to return the country to its Gilded Age social and political framework—a project that has never once been endorsed by a majority of the voting public. All the small-donor contributions in the world won’t be enough to compensate for the paucity of the Democrats’ response if we do not treat this like the ongoing emergency it so clearly is.

This is not an argument against sending Pelosi her $15. But it is a call to give those donations a larger meaning and purpose, to enlist outraged and dispirited Democrats in a sustained movement whose end-goals are clear and attainable. This effort must engage our deepest energies as citizens of an imperiled democracy, and use  the terror of this dark moment for more than just fundraising. Because if we let democracy slip away like this, it may be gone for a generation or longer. The furor will dissipate. Americans will accustom themselves to the new reality of austerity-inflected theocracy. And in that grim new world, you might even miss those content-challenged fundraising emails from the Speaker of the House.