My dentist frequently reminds me not to grind my teeth. As I watched heroic Wisconsin voters stand in line for hour after hour during a pandemic, I ground harder. As I read the Supreme Court's decision requiring Wisconsin voters to choose between the risk of disease and their right to vote, I clenched my fists. And as I watch as the president on his nightly reality show in the White House press room fumble the chance to lead the nation, it makes my blood boil.
On Monday night, SCOTUS, in a 5-4 unsigned decision, required voters who had not yet received absentee ballots to physically go to a polling place in order to exercise their constitutionally guaranteed right to vote. Any Wisconsin voter who chose to violate stay-at-home orders for the purpose of casting their ballot risked exposure to the coronavirus. This was an heroic act which need not have occurred. The court, chose to write an extremely narrow decision ignoring the broader requirement to protect each citizen's franchise in what was probably its most naked partisan opinion since the infamous Bush v. Gore decision which cut short the recount and decided the 2000 election.
Justice Ruth Bader Ginsburg wrote a stinging dissent of the court's narrow decision. She declared, "Because gathering at the polling place now poses dire health risks, an unprecedented number of Wisconsin voters — at the encouragement of public officials — have turned to voting absentee …"
She went on to point out, "Either they will have to brave the polls, endangering their own and others' safety or they will lose their right to vote, through no fault of their own. That is a matter of utmost importance — to the constitutional rights of Wisconsin's citizens, the integrity of the state's election process, and in this most extraordinary time, the health of the nation."
Republicans, in recent years, in whatever states they have control, reliably come down on the side of voter suppression. It seems in instance after instance that they opt for making it more difficult, not easier, to cast a ballot. The court in this instance has added its weight against the voter. In the words of Justice Ginsburg, "[T]he court's order, I fear, will result in massive disenfranchisement."
It cannot be credibly denied that the Supreme Court has become increasingly polarized along ideological grounds. Consequently, the reputation for non-partisanship and fairness, and the court's moral authority are damaged.
We should not forget the role that the Senate and both political parties have played in this tragic development. In 2013, the Democratic majority at the time used the so-called nuclear option, a questionable parliamentary ploy, to sweep away the filibuster on judicial nominations so that only a simple majority is necessary, eliminating any leverage for the minority party. (They exempted the Supreme Court.) Four years later, the Republicans, now in control, used this precedent to extend this change to Supreme Court nominations.
As I wrote in a 2017 op-ed in The Hill, "Presidents in the future, if their party is in the majority in the Senate, will no longer need to take the minority party into consideration in selecting a Supreme Court nominee. Ideologues outside of the judicial mainstream can be selected by presidents anxious to please their party's base."
The two justices appointed by President Trump, Justices Neil Gorsuch and Brett Kavanaugh, were confirmed by narrow partisan Republican majorities.
The filibuster has played another key role in efforts to address the crisis brought by the coronavirus. As the Senate moved toward what became the $2.2 trillion relief package, the CARES Act, Majority Leader Mitch McConnell enraged Democrats by putting forward a package written by Republicans without Democratic participation. If the filibuster on legislative matters were gone as many progressive Democrats, led most notably by Sen. Elizabeth Warren, D-Mass., have advocated, the McConnell led majority would have swiftly passed his bill. Fortunately, this did not occur, and the Democrats were able to use the filibuster to force the Republicans to negotiate a compromise with them.
Twice the Majority Leader McConnell sought to invoke cloture under the Senate rules to quash the Democrats' filibuster. Twice, on March 22 and March 23, he was defeated. This was possible because the rules require 60 votes in order to invoke cloture. This made it impossible for McConnell to use a Republicans-only majority to steamroll the minority.
Democrats were able to gain concessions to implement additions to unemployment insurance referred to as "unemployment on steroids," strengthen oversight over a nearly half-trillion dollar pot of loans for corporations (although President Trump has attempted to weaken these oversight provisions), and funding for hospitals and for state governments among other things. The outcome was a true compromise and passed the Senate, 96-0.
As the Congress now moves toward another massive rescue bill, the majority leader will be mindful of the considerable leverage which Democrats have in the Senate. In the end, another Senate compromise can be expected, whether another filibuster is actually launched or merely because the possibility exists. The filibuster is in the Senate's "DNA" and all senators know that to accomplish a major legislative goal requires some "buy in" from the minority party. In this troubling time, we are fortunate to still have it.
Richard A. Arenberg is a Visiting Professor of the Practice of Political Science and a Senior Fellow at the Watson Institute for International and Public Affairs at Brown University. He worked for Sens. Paul Tsongas, D-Mass., Carl Levin, D-Mich., and Majority Leader George Mitchell, D-Maine, for 34 years. He served on the Senate Iran-Contra Committee in 1987. Arenberg is the author of "Congressional Procedure: A Practical Guide to the Legislative Process in the U.S. Congress" which won the Benjamin Franklin Book Award in Political & Current Events for 2019. He is co-author of the award-winning "Defending the Filibuster: Soul of the Senate" named "Book of the Year in Political Science" by Foreword Reviews in 2012. A 2nd edition was published in 2014. The U.S. Senate Historical Office published "Richard A. Arenberg: Oral History Interviews" in 2011. He serves on the Board of Directors of Social Security Works and the Social Security Education Fund. He is an affiliate at the Taubman Center for American Politics & Policy. His work has appeared in The New York Times, The Washington Post, the Providence Journal, and The Boston Globe. He is a Contributor at The Hill. Follow him on Twitter: @richarenberg.