Why Chief Justice Roberts Should Retire

At this moment of national focus on Supreme Court personnel, President Biden’s nomination of a successor to Justice Breyer should not be our only concern. Chief Justice John Roberts has served under four Presidents, over a period of 17 years, close to the term sometimes suggested as a limit of service. For the good of the country and the Court, he should retire, effective in June 2022.

As Chief Justice, Roberts gets to assign the opinion, but only when he votes with the majority. When Amy Coney Barrett replaced the late Justice Ginsburg in October, 2020, Roberts lost control of the majority of the Court. Prior to that time, the Court had been split 5-4 between Republican and Democratic appointees. Roberts could effectively exercise control both by voting with the majority, and shaping its opinion. Those moves typically led him to side with the other Republicans, but he sometimes attracted votes from the Democrats, frequently by finding moderate grounds of decision. And in the crucial decision upholding the Affordable Care Act, Roberts famously joined only with the four Democrats.

Once the Senate confirmed Barrett, however, the Court included five Justices to the Chief’s right -- Justices Alito, Barrett, Gorsuch, Kavanaugh, and Thomas. They no longer need his vote to decide cases and to write majority opinions. Repeatedly, and with increasing frequency, these radical Justices have ignored Roberts’ views, running roughshod over procedural norms and well-established substantive principles. The most recent episode occurred on Monday, February 7, when five Justices blocked a lower court order that required Alabama to redraw its congressional district maps so as to permit fair minority representation. The decision occurred in the Court’s emergency docket, without oral argument or written opinion, and over Roberts’ objection. This travesty, widely condemned, tracked similar Court behavior with the Texas vigilante abortion law, and with orders in New York State that limited congregating in houses of worship during the pre-vaccination phase of the Covid-19 pandemic. In all these settings, the radicals ignored the governing law, which the lower courts had applied correctly, and abruptly imposed their will. Roberts disapproves of these shenanigans, as he sometimes wrote in his separate opinions, but was powerless to stop them.

On the immediate horizon are additional and permanent changes in the law of abortion, affirmative action, and public school prayer. The Court would never have accepted these cases for review if the radicals were not confident of the five votes, exclusive of Roberts, for their preferred outcome. They now set the agenda.

Roberts appears to care deeply about the institutional respect, fast fading, that the Supreme Court holds in our system of government. He has only one, powerful course of action left open to him. As Jeremy Stahl of Slate argued back in December, immediately after the Court refused to intervene in the Texas abortion controversy, Roberts’ best move is to step down. The case for that decision has only grown stronger in the intervening two months, in light of the emergency docket rulings and the new, aggressive grants of certiorari.

Roberts should announce his retirement, effective at Term’s end in June 2022. His retirement would permit President Biden to select a new Chief Justice, either from the existing Court or from the outside, as Roberts himself was selected. His retirement would return the Court to a 5-4 split, Republicans over Democrats, just as it was on the eve of Antonin Scalia’s death in February 2016.

Roberts’ retirement would represent a striking symbol of good faith after the two egregious Republican power grabs – one in early 2016, when Republicans blocked the Obama nomination of Merrick Garland; the other in 2020, when Republicans rushed the appointment of Amy Coney Barrett on the eve of the election. Roberts knows that following normal protocols would have produced Democratic appointees in both those cases. Justices Gorsuch and Barrett are the direct beneficiaries of the usurpations, and Justice Kavanaugh the indirect beneficiary (because Gorsuch probably would have filled Kennedy’s seat in 2018), but none of them have shown any sign of an inner compass that would lead them to resign. Only Chief Justice Roberts has the combination of longevity and integrity that might lead him to do the right thing.

A Roberts retirement would still leave the radicals with a 5-4 majority. But one or more of them might be tempted to defect occasionally, especially if Roberts publicly explained his departure and was lionized in the legal community for it. A new Chief Justice could exercise influence with others, in particular with respect to ethical violations, that Roberts has been unwilling to wield. And the oldest Justices would be Alito and Thomas, so the healthy possibility of see-saw control of the Court would be back in play, probably for many years.

Cynics will scoff at this proposal. Why would anyone in good health and in his mid-60’s give up the Chief Justiceship of the United States? The best answer is that only a patriot, one who deeply cares for the Court and for our troubled country, would do so. That description fits John Roberts. Packing the Court would be imprudent, but unpacking it in this way would be inspired.

Timing is Everything: Justice Breyer’s Retirement Announcement and the Court’s Contempt for Government Regulation

The recent announcement that Justice Breyer will retire at the end of the Supreme Court’s current Term was welcome news for progressives who eagerly want to fill his seat. While his retirement isn’t surprising, announcing a Supreme Court retirement in January, as opposed to at the end of the Term in June, is unorthodox.

Throughout his illustrious 27-year tenure on the Supreme Court, Justice Breyer has been a consistent member of the Court’s liberal wing and a fierce defender of the Court as a “non-political” institution, denouncing court packing and arguing that political intervention could further erode public trust in the judiciary.

Despite Breyer’s admonitions, several recent high-profile Supreme Court decisions have raised eyebrows for their blatant partisan undertones, including the Court’s declaration of war against the administrative state in the COVID-19 vaccine case just 13 days before his announced retirement.

A little backstory. Back in November, the Biden administration announced a vaccine or test requirement for private businesses with over 100 employees. Unsurprisingly, conservative politicians denounced the mandate as a violation of personal “freedom” and business interests sued to stop its enforcement.

On its face, NFIB v. OSHA is about the Occupational Safety and Health Administration’s (OSHA) statutory mandate to “ensure safe and healthful working conditions for workers” and whether that mandate gives the Biden administration the power to enforce its vaccine or test requirement for private businesses.

Although the Supreme Court has case law dating back to 1905 in Jacobson v. Massachusetts upholding compulsory state vaccination laws to protect public health, the Court’s conservative justices took a critical view of Biden’s federal mandate, concluding that OSHA cannot enforce its mandate during an ongoing public health crisis because the “response to a worldwide pandemic is simply not part of what the agency was built for.”

For an administrative law expert like Breyer, arguing that OSHA, the agency mandated to protect the health of workers, lacked the authority to protect workers’ health during an ongoing pandemic likely seemed laughable at best.

Sure, COVID-19 wasn’t considered when the Occupational Safety and Health Act was passed in 1970. But neither was the Internet. Or computers. Or most of the machinery used in warehouses today.

No, I suspect that Justice Breyer, the Supreme Court’s administrative law expert, immediately recognized that the motivation here is broader and more nefarious. This case isn’t about law and OSHA’s statutory mission. It is about the conservative legal movement’s utter contempt for government regulation and their disdain for mask mandates in schoolrooms, board rooms, and hotel rooms. This is about politics and the Court’s commitment to not only shrink the size of American government, but to cut off its legs so it can’t do anything – or at least anything the Court’s conservative justices do not agree with politically.

This isn’t new. Conservatives have long sought to use the Court to stymie executive branch policy decisions it disagrees with. This helps explain last Term’s decision in Cedar Point Nursery v. Hassid, in which the Court struck down a California labor regulation, and it will be in play next week when the Court hears West Virginia v. EPA, an environmental law case that could gut the government’s power to fight climate change.

The dispute in West Virginia is actually very similar to the dispute in NFIB – both cases ask whether a government agency has the power to regulate, in NFIB it is regulating vaccines, in West Virginia it is regulating greenhouse gas emissions. Conservatives tend not to like any regulation. But regulations safeguarding the environment and protecting workers? Those are definitely on the chopping block.

Under binding Supreme Court precedent however, the EPA is required to regulate greenhouse gas emissions. West Virginia however is hoping to severely restrict the EPA’s regulatory authority – restrictions that would wreak havoc on our planet, on global efforts to fight climate change, and on Biden’s own climate policy. But their argument, like the argument in NFIB, goes further. They are trying to use the lawsuit as a vehicle to severely restrict how government functions – ends which, not coincidentally, line up nicely with the republican party’s deregulatory agenda.

This is politics, pure and simple. And, with a 6-3 conservative Court, there isn’t much that can stop this dangerous partisan agenda. Justice Breyer, an institutionalist to the core, recognized that in his dissent in NFIB in arguing that the vaccine decision was simply “substitute[ing] judicial diktat for reasoned policymaking.” Perhaps, even for him, the Court’s political posturing was enough to realize that it was time to retire.

On Russia-Ukraine Crisis, Will Congress Play its Constitutional Role?

It has been nearly two months since reports first indicated that Russia was massing troops near its border with Ukraine in preparation for what could be a new offensive military operation against the country Russia first invaded in 2014. This is a crisis with implications for the US and its allies. Ukraine shares borders with several NATO members, and Russian president Vladimir Putin has used the threat of invasion as part of an effort to compel the US and its allies to accept his demands, including that Ukraine and other countries that were formerly part of the Soviet Union will not be admitted to NATO in the future.

News coverage in the United States focuses on the Biden administration’s management of and possible response to the Russia-Ukraine crisis. This coverage rests on the incorrect and dangerous assumption that President Biden alone has the authority and discretion to determine the nature of the US response, including whether the US might take military action if Russia once again invades Ukraine. For instance, an Associated Press piece reports that “President Biden is not planning to answer a further Russian invasion of Ukraine by sending combat troops”. An op-ed in the Washington Post is titled “Biden must show that the US stands ready to support Ukraine, militarily if necessary”. Members of Congress look on passively as there are reports that the Biden administration has placed 8,500 US troops “on heightened alert for possible deployment to Europe amid rising fears of a possible Russian military move on Ukraine”.

It is essential for the US to determine how to respond to any new Russian offensive against Ukraine. However, it is also essential to make clear that Biden does not have unilateral authority to make this decision. The US is a constitutional democracy in which no branch of the federal government has unconstrained power. Under the Constitution, foreign affairs powers--including decisions involving the use of military force--are shared between Congress and the president. The president is Commander in Chief of the armed forces, but Congress declares war. Many scholars conclude that presidents can only unilaterally order the use of military force in an emergency scenario, when the US faces an actual or imminent attack and there is no time to seek advance congressional authorization. As serious as the Russian threat to Ukraine is, there is no indication at the moment that Russia poses an actual or imminent threat to the US. If Russia does escalate its war with Ukraine in a new invasion without taking any action that directly threatens US forces, US law would require congressional approval for military action against Russia.

James Madison believed that the separation of powers was necessary to preserve liberty and prevent tyranny. As Madison explained, the separation of powers does not mean that each branch of the federal government exists in its own hermetically sealed sphere of authority, insulated from the other branches. Instead, the separation of powers requires overlap between the branches of government so that each has “the constitutional means and personal motives to resist encroachments of the others”. Madison also warned that the words of the Constitution could be mere “parchment barriers”, empty of real significance, unless there was an effective mechanism for translating constitutional aspirations into meaningful limits on power.

Whether Madison’s framework retains meaning today depends on whether members of each branch of the federal government use the ample constitutional tools available to them to take action when one branch exceeds the constitutional limits of its power. For nearly three quarters of a century, beginning with the Korean War, US presidents have claimed unconstitutional authority to unilaterally order military action when there is no direct, immediate threat to the US. During that period of time, members of Congress have generally failed to fulfill their constitutional obligation to enforce limits on presidential power.

Congressional abdication of responsibility has profound implications for liberal democracy, which is centrally based on the rule of law and the notion that limits on power apply to everyone, even the president. In recent years, we have seen Donald Trump’s authoritarian ambitions and disdain for the rule of law present a direct threat to liberal democracy in the US. Biden is no authoritarian, but that doesn’t mean he can be allowed unbounded discretion to make decisions about US foreign policy and the use of military force that, under the Constitution, are jointly assigned to both Congress and the president. Insisting on Congress’s role when it comes to mapping out the US response to a possible renewed Russian invasion of Ukraine is not a partisan matter. Rather, it is a question of liberal democracy that focuses attention on whether legislators will insist on playing their constitutionally mandated role in determining some of the most serious policy decisions that can be made.

Why Federal Action Is Necessary To Preserve Voting Rights

The attack on the United States Capitol on January 6, 2021 may have been the most visible attack on American democracy in decades, but in the 12 months since, a similarly harmful campaign to undermine our elections has been underway across the nation — while receiving significantly less attention.

As state legislatures move to restrict voters’ access to the ballot box, undermine election administrators’ ability to administer free and fair elections, and enable partisan actors to sabotage post-election processes to subvert election results, the need for federal action to counteract these efforts and preserve democracy has never been clearer. Congress has both the opportunity and the responsibility to bolster the foundations of our electoral system by passing the Freedom to Vote: John R. Lewis Act — which combines the previously introduced John R. Lewis Voting Rights Advancement Act (VRAA) and the Freedom to Vote Act (FTVA).

The 2020 election saw the highest turnout in American history, with more than 158 million Americans casting ballots in the presidential contest. Despite the pressures of the COVID-19 pandemic, American voters mobilized in record-breaking numbers to make their voices heard at the ballot box.

After all the ballots were cast and counted (and in many key states, recounted) thanks to the heroic work of election workers and volunteers across the country, the 2020 election was heralded by federal election infrastructure and security experts as the, “most secure in American history.” Of course, that’s not to say that there were no issues; many voters, especially voters of color, still faced hurdles to accessing the ballot.

But rather than celebrating this unprecedented level of civic engagement or addressing the existing barriers that prevented some Americans from voting in 2020, many state legislatures have enacted restrictive laws that limit voters’ access to the ballot. In the 2021 legislative session alone, at least 19 states passed 34 laws that restricted access to voting. Many of those laws target policies that allow voters to cast their ballots by mail, which were essential in 2020 due to the dangers posed by the ongoing COVID-19 pandemic, while others roll back existing policies that have enjoyed bipartisan support for decades.

Perhaps even more concerning, state lawmakers have also enacted 32 laws in 17 states that facilitate election subversion. Election subversion enables partisan actors — including the same legislators who are enacting these bills — to politicize, criminalize or otherwise interfere with election administration to undermine the results of an election.

This wave of anti-voter, anti-democratic legislation moving through the states and the willingness of some political actors to discard democratic values in the pursuit of power underline the need for federal action to preserve core tenets of our democracy – voting rights and election security. The Freedom to Vote: John R. Lewis Act is that necessary action.

So what would this transformative piece of legislation actually do?

To start, this bill would begin to reverse the damage caused by the Supreme Court’s disastrous 2013 decision in Shelby County v. Holder, which drastically undermined the effectiveness of the original Voting Rights Act of 1965 (VRA). Shelby County invalidated the coverage formula that determined which jurisdictions were subject to Section 5 federal preclearance for election law changes.

Almost immediately following the Shelby County decision, several states (predictably) enacted restrictive and discriminatory measures, including restricting opportunities for voter validation, closing polling places and deleting voters from state voter rolls. There have also been cutbacks to early voting periods and restrictions on the right of civic groups to assist citizens in participating fully in the democratic process.

Provisions imported from the VRAA into the combined Freedom to Vote: John R. Lewis Act will restore federal preclearance by adopting a new coverage formula to provide a constantly-updated list of jurisdictions with a history of racial discrimination in voting that would be subject to federal oversight. A new coverage formula would likely cover states like Alabama, California, Florida, Georgia, Louisiana, Mississippi, New York, North Carolina, South Carolina, Texas and Virginia — Red, Blue, and Purple alike.

Last year, the Supreme Court further weakened the VRA by neutering Section 2 in Brnovich v. DNC. The VRAA will return Section 2 to full strength, allowing voters and the Department of Justice to challenge discriminatory voting policies in court. The VRAA also incorporates the Native American Voting Rights Act, which would reduce the unique barriers that Native Americans face to participation in the political process.

Additionally, the bill includes the Freedom to Vote Act’s full suite of reforms to strengthen and protect democracy by establishing national standards for voting access, ensuring fair representation by ending partisan and racial gerrymandering, and increasing transparency in political campaign spending to limit the influence of dark money secret spending.

These FTVA provisions would expand access to voter registration, early in-person voting and vote-by-mail to all voters, regardless of where they live, and would ensure that voter validation requirements do not create insurmountable obstacles to the ballot box. Also included are new protections for voters with disabilities, and restoration of the right to vote in federal elections for Americans with felony convictions who have completed their terms of incarceration.

The FTVA gives voters and advocates new legal tools to challenge burdensome voting laws and strengthens legal standards to make those challenges more likely to succeed, including by establishing an affirmative right to vote and have one’s vote counted.

A new provision in the combined bill prohibits any government official from willfully failing or refusing to tabulate, count and report an eligible person’s vote, or from failing or refusing to certify the aggregate vote counts or the election of a candidate receiving sufficient votes to be elected to office — a key safeguard against election subversion.

The bill’s election security provisions include limitations on the removal of local election officials without cause, enhanced protections from threats and harassment for election officials and volunteers, prohibitions on intentional interference with voters’ protected election activity and restrictions on frivolous voter eligibility challenges. It also requires the use of voter-verifiable paper ballots, expands record keeping and retention requirements for election materials and equipment, and requires states to conduct certified post-election audits.

The redistricting provisions of the FTVA would ensure fair maps by eliminating partisan gerrymandering, setting forth new mandatory criteria for states to use when drawing congressional districts and expanding protections for minority voters under the VRA. And critically, the FTVA would allow federal courts to adjudicate partisan gerrymandering claims, reversing the Supreme Court’s abdication of that responsibility in Rucho v. Common Cause in 2019.

Finally, the FTVA contains three major campaign finance reforms that will improve transparency in our elections. These provisions, which originated in the DISCLOSE Act, Honest Ads Act and Spotlight Act, are important anti-corruption measures that will counteract the influence of dark money secret spending in our elections. Among other things, they would expand existing reporting and disclosure requirements to include paid online political ads, mandate disclosure of major donors to entities engaged in campaign-related advertising and spending, and strengthen the Federal Election Commission’s enforcement process for campaign finance violations.

Some critics have called these measures a “partisan takeover” that would “excessively federalize” our elections. But most of the provisions of this bill enjoy majority support from the public regardless of political affiliation, and many of them have bipartisan origins in red, blue and purple states alike. As for the VRAA provisions — prior iterations of the VRA were enacted with overwhelming bipartisan support, and this time should be no different. Voting rights are not partisan—or at least they shouldn’t be in a democracy that depends upon them for its legitimacy.

Moreover, the Constitution expressly authorizes Congress to pass laws governing the “times, places and manner” of holding federal elections. History is filled with examples of federal election legislation enacted to preserve and expand the right to vote in response to times of democratic crisis: including the VRA, the Uniformed and Overseas Citizens Absentee Voting Act, the National Voter Registration Act of 1993, and the Help America Vote Act of 2002.

This historic legislation has already passed the U.S. House of Representatives, but it remains stalled in the U.S. Senate due to abuse of the filibuster by a minority of Senators. The Senate has changed the filibuster rules frequently over the last several decades, including as recently as last December on matters related to the debt ceiling. No Senate rule or procedure should stand in the way of our democracy. Now is the time to reform the filibuster again to protect our elections.

Other opponents have suggested that rather than pass this critical legislation, Congress should instead focus only on updating the Electoral Count Act (ECA), which regulates the counting of the votes for president and vice president by Congress. To be sure, amending the ECA is a necessity before the next election. And there are other key bills, such as the Protecting Our Democracy Act, which must also pass to further strengthen our democracy. However, these proposals are not a substitute for the critical reforms currently before the Senate in the Freedom to Vote: John R. Lewis Act. Updating the ECA alone will not undo the damage wrought by the Supreme Court or address the litany of voter suppression and election subversion efforts being undertaken by many states—all of these measures are needed to protect our political system and preserve our democracy for generations to come.

Now is the time for federal action to protect and preserve our freedom to vote; Congress must do whatever it takes to pass this bill. Democracy cannot wait.

Reform the Filibuster. Save Voting Rights. 

As we honor Martin Luther King Day, it is hard to envision a more appropriate topic on which to focus than voting rights, the right from which all other civil rights stem. As Dr. King himself said, “The denial of this sacred right is a tragic betrayal of the highest mandates of our democratic tradition.” We are living through America’s moment of truth, and the outcome is not at all certain.

Just over a year ago, an insurrectionist mob threatened to disrupt the peaceful transition of power that has been a hallmark of American presidential elections since Thomas Jefferson was inaugurated in 1801. For the first time, the peaceful transfer of power, a quintessential qualification of democracy, is no longer a given in this country.

With the help of the Supreme Court, conservative state legislatures are systematically undoing the decades of progress made since Dr. King marched for the ballot. The Supreme Court has repeatedly gutted the Voting Rights Act, opening the door for state legislatures to enact voter suppression laws laser focused on denying people of color’s access to the ballot.

In the wake of the 2020 election, state legislators have introduced more than 440 bills with provisions that restrict access to the ballot box and at least 19 states have been successful in passing restrictions.  To put that in context, more than a third of all restrictive voting laws enacted since 2011 were passed in 2021 alone. Cutting early voting hours, consolidating polling locations, requiring burdensome ID requirements to cast a ballot, all disproportionately impact people of color.

State legislators and their number-crunchers also have been busy gerrymandering their way to a decade of electoral advantage, again with the U.S. Supreme Court’s blessing. In 2019’s Rucho v. Common Cause, the Court abandoned its responsibility to ensure that legislative maps are drawn fairly, finding that the issue of partisan gerrymandering is a “political question” beyond the Court’s competence and jurisdiction.

In her dissent in the Rucho case, Justice Kagan noted the inevitable result of the Court’s abdication: “politicians can cherry-pick voters to ensure their reelection.” Armed with sophisticated technology and the assurance that the Supreme Court will not interfere, some state legislators are doing exactly just that, at great expense to our democratic legitimacy. With over half of states having finished redrawing legislative district maps, we are already seeing the damage done by the Court’s refusal to ensure fair and meaningful representation.

Left unchecked, these combined measures risk determining the outcome of future elections before a single ballot is cast. Major federal action is required to preserve our democratic system and give us any hope of realizing the full potential of a multiracial democracy.

Voting rights legislation was the very first item to be introduced by this 117th Congress, and, for over a year, there has been a sustained effort to pass it under the current senate rules. In previous years, this likely would have been possible. Just 16 years ago, the Senate reauthorized the Voting Rights Act with a vote of 98-0. Unfortunately for our country, voting rights have become a partisan issue with Republican Senators actively opposing legislation necessary to protect this most fundamental constitutional right.

There have been recent attempts to focus on fixing small pieces of our fragile system with targeted, one-off bills such as reforms to the Electoral Count Act. While there are numerous, important repairs that can and should be made, small repairs alone cannot save us. We are past the point of nibbling around the edges. Systemic change is required to save our fledgling multiracial democracy, and we are running out of time.

The possibility that we will succumb to autocracy is palpable. The road to achieving a genuinely multiracial democracy is a steep one, and at times it feels insurmountable. Here is what I do know for certain: the fate of voting rights is one of the most pressing litmus tests of this moment of truth for our country.

Martin Luther King Day is an opportunity to reflect on Dr. King’s legacy, how far we as a nation have come since the Civil Rights Movement, and on the work that remains unfinished. Dr. King and so many other giants of the Civil Rights Movement organized, marched, and bled for access to the ballot box. Nearly 60 years ago, Dr. King said of the fight to pass meaningful voting rights legislation, “I think the tragedy is that we have a Congress with a Senate that has a minority of misguided senators who will use the filibuster to keep the majority of people from even voting.” We cannot protect both the progress made since the Civil Rights Movement and the filibuster in its current form. One must give, or our democracy will.

I spent 18 years in the Senate. I tend to be protective of Senate rules. I make an exception here. The only path to achieving a genuinely multiracial democracy in this country is through the robust protection of voting rights. We will go to the polls later this year. It is imperative that our elections be determined not by who is denied access to the polls, not by gerrymandering or election disinformation, but by the people exercising their constitutional right to vote. The Senate must reform the filibuster to enable legislation necessary for the preservation of our democracy.

Now is the time for action. Reform the filibuster. Protect voting rights.

 

The Filibuster Must Give Way to the Constitutional Guarantee of a Republican Form of Government

Senate Majority Leader Chuck Schumer has announced that he will ask Senate Democrats to end the filibuster for legislation to protect democracy if Republican do not otherwise allow such legislation to move forward. Schumer is right to do so. In light of escalating antidemocratic efforts in the states, eliminating the filibuster for voting rights and related legislation is a constitutional obligation.

That obligation is found in the Guarantee Clause, of Article IV, section 4 of the Constitution, which promises that “[t]he United States shall guarantee to every State in this Union a Republican form of Government.” Congress must act to make good on this promise.

From the time of the Founding, “a Republican form of Government” has meant, as James Madison explained, a government made up of “a small number of citizens elected by the rest” – a representative democracy. And Congress has acted under Guarantee Clause to ensure such representative democracy in the states. During Reconstruction, for example, even before the enactment of the Fourteenth and Fifteenth Amendments, Congress relied on the Clause when it required the former Confederate states to extend the right to vote to African-American men as a condition of readmission to the Union.

Today, the need for congressional action to enforce the Guarantee Clause is undeniable. Our understanding of “a Republican form of Government” as a representative democracy has only deepened since the Founding and since Reconstruction. The Constitution itself now expressly enshrines an expansive vision of representative democracy that includes all races and sexes. Five of the twelve amendments adopted since Reconstruction explicitly expand or protect the right to vote—and, thereby, our understanding of the Guarantee Clause.

At the same time, the threat to democracy today is extraordinarily grave. Extreme partisan gerrymandering is rampant at both the state legislative and congressional levels. Republican-controlled legislatures, on party-line votes, are imposing new and increasingly onerous obstacles to voting, often targeted at voters of color and younger voters, who are more likely to vote for Democrats. Election administration and oversight is being taken over by extreme partisans, including some who rejected the results of the 2020 election.

Each of these practices taken in isolation may not intrinsically implicate the Guarantee Clause. But collectively they arise from an increasing unwillingness, particularly by Republicans, to accept adverse election results – the core of a functioning democracy. Scholars and commentators are warning, with increasing urgency, about the country’s slide towards authoritarianism. The risk of election subversion has only increased since the Capitol insurrection last January 6.

These conditions parallel the concerns that led the Framers to include the Guarantee Clause in the Constitution. They understood, as Madison put it, that in the newly “intimate” union created by the Constitution, “the greater interest have the members in the political institutions of each other.” They were particularly fearful of states establishing new monarchies, which they believed would inevitably encroach on the republican governments of other states

Put in terms of the Guarantee Clause, today’s increasing embrace of anti-democratic practices both threatens national cohesion and undermines the ability of states that do not engage in such practices to maintain political parity with those that do.

Under these circumstances, the Guarantee Clause requires the federal government act to protect democracy. And because the Supreme Court has long held that the federal courts cannot adjudicate claims brought under the Guarantee Clause, that protection must come from Congress.

Today, the filibuster is standing in the way of Congress fulfilling its constitutional obligation to protect democracy. The Senate now has before it the Freedom to Vote Act, containing elements of both the For the People Act and the John Lewis Voting Rights Advancement Act, which have already passed the House. But the legislation risks failing in the Senate due to the filibuster (as well as to Republican Senators’ failure to oppose the antidemocratic practices their own party is promoting in the states). That is why Senator Schumer is seeking to change Senate rules to eliminate the filibuster for voting rights and related laws.

Making this change will take the votes of all 50 members of Schumer’s caucus, including Senators Joe Manchin and Kristen Sinema, who have both repeatedly expressed reluctance to eliminate the filibuster. But whatever their views about the filibuster as a general matter – whether they embrace tradition, or belief in bipartisanship as reasons to maintain it – those views must give way to the oath they took to the Constitution. At this moment of peril for our representative democracy, the Constitution requires Congress to pass legislation to fulfill the Guarantee.