"We the People" vs. "We the Court"

How the Supreme Court is dismantling voting rights to entrench minority rule.

When Hungary’s Viktor Orbán wanted to entrench minority rule, he captured the courts. When Poland’s Law and Justice Party sought permanent power, it rewrote judicial appointments. In Turkey, Erdoğan used constitutional tribunals to ratify each step. And in Venezuela, Hugo Chávez followed the same script. This pattern reflects what scholars call autocratic legalism: a process where the “rule of law,” which constrains the powerful, is replaced by “rule by law,” where law becomes an instrument of power consolidation.

The United States, however, has reached this moment in reverse. While aspiring autocrats typically must work to install allies on the courts after taking power, that crucial step was already complete before the second Trump administration began. The Supreme Court is not the target of a political takeover; it is instead central to facilitating one, wielding the language of constitutional interpretation and anti-discrimination to erode democratic protections.

During oral arguments in Louisiana v. Callais, the conservative justices framed their questions as a debate about the future of the Voting Rights Act. But their line of inquiry read more like they were exploring legal theories that could justify significantly narrowing its scope. Justice Alito framed racial gerrymandering as potentially just “partisan polarized voting.” Justice Kavanaugh suggested that remedies for racial discrimination might have a constitutional “end point.” Justice Gorsuch wondered aloud if any attempt to remedy racial discrimination was, itself, a form of discrimination. These different framings all point toward the same outcome: a system in which race-based exclusion is rebranded as race-neutral law, and the right to representation erodes beneath a veneer of constitutional reasoning.

The trajectory is clear. Shelby County v. Holder (2013) gutted the pre-clearance provisions of the Voting Rights Act. During oral arguments, Justice Scalia dismissed Congress’s near-unanimous reauthorization of the Act as a “perpetuation of racial entitlement,” arguing that voting rights was “not the kind of a question you can leave to Congress” because it was too politically charged to be decided through normal democratic processes. Rucho v. Common Cause (2019) declared partisan gerrymandering “nonjusticiable,” giving a green light to extreme map-rigging. Brnovich v. DNC (2021) then weakened Section 2 protections against racially discriminatory election laws. Callais threatens to finish the job.

Each decision is presented as neutral jurisprudence. Each one pushes America closer to a system where a majority of votes does not reliably translate into power.

What the legal arguments obscure, the numbers make plain. As Nate Cohn notes, striking down the core of Section 2 could hand Republicans as many as a dozen additional House seats, enough to control the chamber even while losing the national popular vote by five points. It would make the United States resemble Hungary, where Orbán’s Fidesz Party has often transformed vote shares in the high 40s or low 50s into a supermajority of seats, thanks to structural bias built into the electoral architecture.

We don’t need to look abroad. Wisconsin provides a homegrown example. Aggressive gerrymandering, validated by the courts, allowed Republicans to control the state legislature for over a decade despite regularly losing the statewide popular vote. In 2018, despite winning just 45% of the statewide vote, Republicans captured 63 of 99 Assembly seats, a structural advantage so entrenched that even major Democratic wave years could not dislodge it. For years, these maps were upheld by a conservative-leaning Wisconsin Supreme Court. It took liberals winning a majority on that court in 2023 for the state to begin dismantling the gerrymander.

If Callais proceeds as oral arguments suggest, majority-minority districts across the South—many of them hard-won legacies of the Civil Rights Movement—will vanish. The Congressional Black Caucus will shrink. The next House majority may be secured not by persuasion or turnout, but by a judicial decision.

Where the Court has shown the greatest deference is to power itself, culminating in the decision granting Donald Trump sweeping legal immunity for “official acts”—a ruling that defies global democratic norms, where dozens of presidents and prime ministers have been prosecuted and convicted of crimes in recent years. The Court is thus working on two fronts: shielding the leader of the anti-democratic movement from accountability while simultaneously dismantling the electoral rules that allow the majority to vote his party out.

As Harvard law professor Nikolas Bowie has argued, the Supreme Court has historically been a far more reliable obstacle to democracy than its guardian. It defended slavery in Dred Scott, validated segregation in Plessy, blessed forced sterilization in Buck v. Bell, and upheld the internment of Japanese Americans in Korematsu. Even Brown v. Board of Education—the decision most cited as evidence of the Court’s moral authority—embraced a principle of racial equality that Congress had enacted into law eighty years earlier, before the Court itself gutted those protections in the Civil Rights Cases of 1883. The Warren Court’s brief era of rights expansion was among the exceptions, not the rule. Individual justices have often championed democratic values and civil rights from the bench. But as an institution, the Court’s dominant tendency has been different. The Court’s true consistency lies in its protection of property, corporate power, and wealth. Or as Bowie notes, “If you look at the history of the judicial review of federal legislation, the principal ‘minority’ most often protected by the Court is the wealthy.”

The conservative majority has learned to use anti-discrimination language as the vehicle for preserving discrimination. Justice Kavanaugh’s suggestion that remedies for racism must have an “end point” inverts the logic of the Reconstruction Amendments. They were written to empower Congress to act against racial domination, not to set an expiration date on equality. This will be the Roberts Court’s legacy: using the Constitution not to expand freedom, but to protect established hierarchies. The Court has simply found a new minority to protect—not racial or religious minorities, but a political party whose power endures through structural advantage, even when it commands fewer votes.

History offers a warning. In early nineteenth-century Britain, the Great Reform Act of 1832 emerged from a political system that had ceased to reflect the public will. Power was concentrated in “rotten boroughs”—tiny, depopulated rural districts that gave wealthy, aristocratic landowners as much parliamentary representation as entire industrial cities. Parliament’s refusal to reform those distortions produced years of crisis and mass protest; the choice eventually narrowed to reform or revolution. Britain chose reform, extending representation to the new middle class and averting political collapse.

The United States is now barreling towards its own version of this crisis. The Supreme Court’s jurisprudence is creating a system of modern rotten boroughs—districts drawn and validated to preserve minority rule under the guise of constitutional neutrality. Each decision narrowing the Voting Rights Act, insulating partisan gerrymanders, or granting impunity to those in power moves the country closer to the same precipice Britain faced in 1832: a democracy hollowed out by rules designed to thwart the majority. Unlike Parliament, which could reform itself through legislation, the Court has insulated these distortions behind constitutional doctrine, making democratic correction vastly more difficult.

The Supreme Court is a judicial institution, but it is not acting like one. We should strive for the ideal—a Court bound by precedent and faithful to the constitutional project of expanding democracy. But we cannot grant it legitimacy as long as it behaves like a political institution intent on eroding civil rights and majority rule.

A democracy cannot survive permanent judicial supremacy. In the long term, Congress must reassert its constitutional powers by setting jurisdictional limits to pull crucial issues like voting rights back from a hostile judiciary, imposing term limits to lower the high-stakes partisanship of any single appointment, or expanding the bench to rebalance a Court that has been captured by one party. The Constitution vests sovereignty in “We the People,” not “We the Court.” Judicial reform is not a threat to constitutional order but rather its preservation.