RBG's Passing Highlights the Problems of Representation in the US

 

Supreme Court Justice, and legal icon, Ruth Bader Ginsburg passed away on Friday, September 18, 2020.  Not two hours later, Senate Majority Leader Mitch McConnell released a statement affirming that the Senate would work quickly to confirm President Trump’s appointment.  While this is the normal course of events when filling a Supreme Court vacancy, McConnell was met with a chorus of voices labeling him a hypocrite due to his refusal to conduct a Senate hearing for Merrick Garland, President Barack Obama’s choice to replace Supreme Court Justice Antonin Scalia.  Scalia passed away in February 2016, and McConnell argued it was wrong to confirm a Supreme Court nominee in the midst of an election year.  Yet, fast forward four years and he has no qualms about confirming Trump nominee, Amy Coney Barrett to fill Ginsburg’s vacant seat, arguing the circumstances are different due to the fact that the President and Senate majority are now both under unified Republican control, while in 2016 there was divided government. 

Former Supreme Court Justice Ruth Bader Ginsburg

Amy Coney Barrett, nominee to the U.S. Supreme Court

Regardless of how one feels about McConnell’s actions, this situation draws attention to the larger problem of representation in the United States.  The Supreme Court is currently comprised of eight justices, with Coney Barrett likely to be the ninth.  Out of those nine justices, five will have been appointed by Republican presidents that did not win the popular vote in their respective elections (though Bush did win both the popular and electoral votes in his second term).  George W. Bush and Donald Trump both assumed the presidency by winning the electoral vote but not the popular vote.  Bush appointed Chief Justice John Roberts and Samuel Alito, both of whom have a more conservative slant.  Trump, in his first term, has appointed Neil Gorsuch and Brett Kavanaugh, and has now nominated Barrett (who, by all signs will be confirmed along a party line vote in the Senate).  Neither of these presidents received a majority of support from American voters on election day, but together they have shifted the Supreme Court to the right ideologically for a generation. 

Additionally, representation issues present themselves in the Senate.  The Senate is not designed to be a democratic body.  It was designed to give states equal representation in the legislative branch, as each state receives 2 Senators.  Additionally, the Senate was designed to allow cooler heads to prevail in legislative decision-making.  Partisan battles were anticipated in the House, but were expected to be calmed in the Senate, as Senators were expected to examine what was better for the country as a whole rather than what individual members of a congressmember’s district demanded.  The House of Representatives was supposed to be where public opinion was aired and taken into account.  The Senate was supposed to funnel that opinion into policy that benefited a majority of Americans. 

Yet, much is different about the Senate of 2020 than the Senate of the late 1700s.  The Senate is still composed of two Senators from each state, but the population disparity between states today is much greater than it was centuries ago.  Currently, approximately 19.5 million people live in New York state, compared to the approximate 579,000 residents of Wyoming, giving Wyoming one Senator for roughly every 290,000 residents while in New York we see a ratio of 9.75 million to one.  The disparity looks even starker when we compare the most populous state in the country, California, with a population of 39.5 million. 

 

 

California's population is equal to the states highlighted in red combined.

The above graphic highlights the representation issue nicely.  California’s weight in the Electoral College (roughly appropriate given its population size) is worth all of the states, highlighted in red, combined.  Because we dole out electoral votes to states based on their population size, we know then that the combined population of the 13 states in red is roughly equal to that of California.  Thus, California’s two Senators represent the same number of people as the 26 senators from the states in red.  When Senators are eventually asked to vote on Amy Coney Barrett’s Supreme Court nomination, the states in red have a much greater voice than the Senators in California (26 votes to 2).

Problems with misrepresentation are frustrating and inevitably lead to lowered feelings of political efficacy and often depressed participation levels in democratic society.  Luckily there are reform ideas that exist to tackle the issues associated with misrepresentation that would increase political efficacy and hopefully revive civic participation. 

Ranked choice voting has been implemented in Maine thanks to a ballot referendum initiated by its citizens.  Ranked choice voting allows voters to rank the candidates in order of preference.  After all ballots are tallied initially (counting only a voter’s first choice), the lowest vote-getter is removed from contention and their votes are allocated to their second choice.  This process repeats until only two candidates remain.  This all but guarantees that the election winner will have a majority of support within a state. 

There are multiple reform plans proposed for the Electoral College: eliminate it altogether, award votes according to a mixture of the popular vote in a congressional district and the statewide popular vote total (Nebraska and Maine use this method currently), award electoral votes according to the proportion of a state’s popular vote total, or the states can enter into a compact that promises to award all of their electoral votes to the winner of the national popular vote, regardless of the state’s popular vote totals.  Some of these are more difficult to pass than others (with some requiring a constitutional amendment) and, of course, all of them come with benefits and drawbacks of their own (a topic for a completely separate blog post). 

There are also more “extreme” measures discussed to increase representation, including adopting a multimember district system, relying on a proportional representation system instead of our current winner-take-all approach to elections, or adopting a more parliamentary system in general over our presidential system.  These are much more unlikely to garner enough public support to gain serious traction, but public opinion is starting to drive some reform efforts when it comes to bettering representation in Congress.  Electoral College reform is now met with a majority of public approval and Maine’s ranked choice voting system was driven by its voters.  Representation matters to voters.  And when they feel that they are not being accurately represented by their elected leaders, there are normally electoral consequences that follow. 

Remembering Associate Justice Ruth Bader Ginsburg

The death of Associate Justice Ruth Bader Ginsburg is momentous. A pioneer and tireless champion of gender equality, she overcame the obstacles of gender discrimination in her own life to advocate for and win basic rights for all women. The edifice of gender equality was built upon her legal arguments before the United States Supreme Court in the 1970s, arguing for the constitutional equality of women under the law. As a member of the Supreme Court she was a fierce defender of a wide range of civil liberties and rights, including the constitutional right to vote. 

Before her passing is overcome by the politics of the election and the battle over her replacement, we encourage all to take a long moment to celebrate Justice Ginsburg's remarkable lifetime of achievements and to reflect upon the lessons we might draw from her life and jurisprudence. The multitude of tributes from across the political spectrum speak to her accomplishments as well as to her joyful, gracious spirit.  

A living legend in her own time, the notorious R.B.G. seemed somehow invincible. Her passing, particularly in this political moment, undoubtedly has left many of us feeling uncertain and in in need of way to express both our sorrow over the loss of a legal icon and a shared debt gratitude. She fought the very end, and although her health failed, she never once faltered in her fearless service to the constitutional principles of freedom and equality.  

Justice Ginsburg once said that what gave her optimism about the future was young people "fired up" about the future of our country. She reminded us that "Real change, enduring change, happens one step at a time." Let us continue to follow in the benefit of Ruth's mighty footsteps. "Fight for the things that you care about, but do it in a way that will lead others to join you."