The following symposium contribution is from Jim Gardner (Buffalo):
When I was born, in the waning years of the Eisenhower Administration, racial segregation was the law throughout the South. Women had available to them three occupations – secretary, nurse, and schoolteacher – but only until they got married. Jews were excluded from country clubs and prominent businesses, and were admitted to great universities only under restrictive quotas. Pollution was essentially uncontrolled; city air and rural lakes and rivers were filthy and dangerous. Consumers enjoyed little protection against rapacious manufacturers.
By the time I graduated from high school things were getting better, and today they are dramatically better. I have always assumed, based on my own lived experience, that the United States in which I will die will be a much, much better place than the United States into which I was born. This thought has always brought me great comfort.
No longer. In a development no one could possibly have foreseen, the United States today is poised on a knife edge between democracy and authoritarianism. It may indeed already be too late to avoid an irreversible slide into authoritarianism and a permanent loss of the liberty and prosperity that Americans have long enjoyed. But if it is not yet too late, this election will decide the matter. The country cannot possibly survive, in any recognizable form, another four years of Donald Trump.
I have been for many years now a “professor of election law.” What it can it possibly mean to be such a creature in current circumstances? The very idea of “election law” presupposes both democracy and the rule of law. The survival of either of these institutions, in anything like the forms that have heretofore commended themselves to Americans, is itself in doubt. What, I often ask myself, can it mean to “profess” law in a society whose leader daily treats it with the profoundest contempt, deliberately stokes such contempt in others, and adheres to a caudillo creed in which law is that which one ignores to benefit one’s friends and invokes harshly to punish one’s enemies. Law is a technology for controlling behavior, but it is meaningful only in societies that choose to adopt and respect it. We may no longer be such a society.
Many of my professional colleagues, I believe, suspect this, but deal with their anxiety in a characteristic way – by doubling down on their respect for law by subjecting each new decision of the U.S. Supreme Court to minute scrutiny and analysis. This behavior is understandable, and deeply human, but it is alas little more than a form of repetitive self-soothing, like a toddler’s rocking or thumb-sucking.
The Supreme Court, my dear friends and colleagues, has been captured by an authoritarian party. It is corrupt; it is implicated. It is at this point no different from high courts in Ecuador or Venezuela – or Wisconsin, for that matter – that have first been subjected to partisan capture, and then proceeded reliably to issue any and all decisions necessary to remove legal obstacles to the perpetuation in power of their authoritarian masters.
Right now, the Court is accomplishing this by applying a superficially neutral principle of noninterference in state electoral regulation to a set of facts that is profoundly non-neutral – states controlled by Republicans are trying desperately to suppress voting, and states controlled by Democrats are trying desperately to facilitate it. The Court’s approach is the same one by which it collaborated for a century with autocrats in the Jim Crow South to erect federalism as a shield for the vicious suppression of political opposition.
Law cannot address, much less solve, our current problem. The only thing that can do so is politics, which in turn depends entirely on what the Framers of our Constitution often called the “virtue” of our people. Benjamin Franklin reportedly remarked to a group of citizens that the Constitution would give us “a republic, if you can keep it.” That is precisely the question to be answered on Tuesday.