Tue Jul 5

How the US Supreme Court has become right-wing, and do recent decisions give Democrats hope at the midterms?

Written by: Adrian Beaumont, Election Analyst (Psephologist), The Conversation

The US Supreme Court’s annual term usually finishes at the end of June, so late June is when the most important decisions are likely to be announced.

On June 23, the Court struck down ^[1] a New York state law that restricted carrying of guns outside the home. On June 24, it denied a constitutional right to an abortion, overturning its own Roe v. Wade ruling in 1973. On June 30, it ruled against the Environmental Protection Agency’s (EPA) regulations on fossil fuels.

From an international viewpoint, the EPA ruling is the most significant. Other countries can set their own gun and abortion laws, but climate change mitigation efforts require international co-operation. According to a May 2021 report ^[2], China had 27% of global greenhouse gas emissions in 2019, with the US second with 11% of emissions.

How did the Supreme Court become right-wing? Unlike Australia, judicial appointments in the US are politicised. Democratic presidents will try to appoint left-wing judges and Republican presidents will try to appoint right-wing judges.

Supreme Court judges are lifetime appointments. Presidents nominate judges who are subject to confirmation by only the US Senate, not the House of Representatives.

Until late 2020, the Court had a 5-4 right majority, but Chief Justice John Roberts sometimes sided with the left, most famously in the June 2012 decision ^[3] that upheld Barack Obama’s Affordable Care Act (Obamacare).

In February 2016, right-wing Justice Antonin Scalia ^[4] died. Obama was still president at the time, and replacing Scalia would have given the left a 5-4 majority. But Republicans controlled the Senate, and majority leader Mitch McConnell denied a vote for Obama’s nominee, Merrick Garland.

McConnell’s ruthlessness was rewarded when Donald Trump unexpectedly defeated Hillary Clinton at the November 2016 presidential election. Trump nominated Neil Gorsuch to replace Scalia, and his nomination was confirmed by the Republican-controlled Senate ^[5] in April 2017.

In July 2018, right-wing Justice Anthony Kennedy ^[6] retired. After a vicious confirmation fight that involved allegations of rape, Kennedy was succeeded by Trump’s nominee Brett Kavanaugh ^[7] in October 2018.

At the November 2018 ^[8] midterm elections, Democrats gained control of the House, where all 435 seats are up for election every two years. But senators have six-year terms, with one-third up every two years. The seats up in the Senate last had elections in 2012, a great year for Democrats. Republicans gained two net Senate seats in 2018 to extend their control.

In September 2020, left-wing Justice Ruth Bader Ginsburg ^[9] died. McConnell ruthlessly rammed Trump’s nominee, Amy Coney Barrett ^[10], through the Senate in late October, shortly before the November 2020 election that Trump lost.

This is how we’ve now got a 6-3 right Supreme Court: Obama did not get a chance to replace the right-wing Scalia, while Trump had three nominees approved, including Ginsburg’s replacement.

Left-wing Justice Stephen Breyer announced he would retire at the end of the current term, and President Joe Biden’s nominee, Ketanji Brown Jackson ^[11], was confirmed by the now Democratic-controlled Senate in April. Jackson has now replaced Breyer, but she replaced a left-wing judge, so the 6-3 right majority remains.

The nine US Supreme Court justices, taken April 2021

Judicial appointments in the US are politicised. Erin Schaff/AAP

Supreme Court is historically unpopular, but so is Biden

A Gallup poll ^[12] conducted in June before the major decisions were announced, had 25% expressing a great deal or quite a lot of confidence in the Supreme Court, down from 36% in June 2021. That’s the lowest confidence in the Court in Gallup’s polling, which goes back to 1973; the previous low was 30% in 2014.

A FiveThirtyEight article ^[13] last Friday cited seven polls that asked whether voters approved or disapproved of the June 24 abortion ruling. Disapproval led in all seven polls by seven to 23 points, with an average lead of 15.6.

The bad news for Democrats is Biden’s ratings are at a near-record low compared to past presidents. In the FiveThirtyEight aggregate ^[14], 55.9% disapprove of Biden’s performance and 39.2% approve (net -16.7).

That’s worse than Trump, who had a -10.2 net approval at this stage of his presidency. Since presidential approval polling began with Harry Truman (president from 1945-53), Biden only beats Truman at this stage of previous presidencies. Truman fell to -19.0 net before rebounding into positive net approval.

Inflation and the resulting drop in real wages explain a large amount of Biden’s unpopularity. US inflation increased ^[15] 1.0% in May alone for a 12-month rate of 8.6%, the highest since 1981. Real weekly earnings dropped ^[16] 0.7% in May and are down 3.9% in the 12 months to May.

As well as economic factors, I believe a perception that Biden has been weak in both the Afghanistan withdrawal ^[17] in August 2021 and the current Russian invasion of Ukraine has damaged his ratings.

Midterm elections will be held in early November, with all 435 House seats and one-third of the Senate up. FiveThirtyEight has Republicans leading Democrats ^[18] by 2.0% in the race for Congress, little changed from before the abortion ruling.

While the currently close polls give Democrats hope, they do not yet account for Republican efforts to tie Democratic candidates to the unpopular Biden, or for greater Republican likelihood to vote. The FiveThirtyEight House model ^[19] gives Republicans an 87% chance of winning control from Democrats.

In the Senate ^[20], there are elections for 35 of the 100 seats – 34 are regular elections that were last up in 2016 and one is a byelection in the safe Republican Oklahoma. Republicans will be defending 21 seats and Democrats 14. The Senate is currently 50-50, with Democrats in control on Vice President Kamala Harris’ tie-breaking vote.

Although Republicans need just one net Senate gain to win control, their defence of 21 seats to 14 for Democrats makes it harder for them than the House. FiveThirtyEight ^[21] gives Republicans a 55% chance of winning the Senate.

In my opinion, the economy is likely to be far more important to most voters than abortion. Democrats are still likely to be thumped at the midterms owing to the economy.

Long-term electoral trends look bleak for Democrats

In April I calculated the percentage of people living in cities of over 100,000 population in four countries: the US, Australia, the UK and Canada. 68% of Australians lived in cities of over 100,000 population, but only 29% of Americans.

In the US, high income white people have moved to “suburbs” outside cities, and these swung to Democrats in 2020, helping Biden win.

Like the Australian Senate, the US Senate has the same number of senators for each state (12 in Australia, two in the US), and this makes it highly malapportioned, with high-population states like California, Texas, Florida and New York getting the same number of senators as the lowest population states.

Analyst Nate Silver said in May that this means the US Senate has a large skew towards groups that are trending towards Republicans (rural and small town voters).

In the US overall, suburban and urban voters make up 52% of the population, to 48% for rural and small town voters. But in the average state, rural and small towns make up 61% of the population, while suburban and urban voters have just 39%.

In 2024, Democrats will be defending 23 Senate seats ^[23] and Republicans just 10; these will include Democratic defences in Montana, Ohio and West Virginia, which Trump won easily in both 2016 and 2020.

If Republicans gain a permanent lock on the Senate, they will be able to deny future Democratic presidents legislative or judicial wins. The US could be heading for a future where only Republican presidents are able to govern effectively.

UK Conservatives lose two seats at byelections

I covered the June 23 UK Wakefield and Tiverton & Honiton byelections for The Poll Bludger ^[24]. The Conservatives lost Wakefield to Labour and T&H to the Liberal Democrats. Also covered: the collapse of Israel’s government that was formed to keep Benjamin Netanyahu out, and Colombia elected a left-wing president for the first time.