The recent appointment and confirmation of Amy Coney Barrett to the Supreme Court is President Trump’s third remodeling of the Supreme Court. The 48-year-old Barrett will be the third female Justice on the Court, in addition to Elena Kagan and Sonia Sotomayor, and the sixth justice to receive a nomination from a conservative, Republican president. Supreme Court Justices, absent death, resignation or impeachment, serve for life. When Barrett reaches 87 years of age, the same age as preceding Justice Ruth Bader Ginsburg upon her death, the vast majority of students currently attending Colgate University will be approaching retirement.
For a moment, let us leave aside the markedly blatant political self-interest of the Republican Party in steamrolling a conservative nominee through the confirmation process without a single vote from the Democratic minority. Let us leave aside the fact that, in response to President Obama’s 2016 nomination of Merrick Garland, Republican Senators argued that the confirmation of a new Supreme Court justice should be delayed until after the presidential election.
Let us leave the partisanship aside and examine the broader, structural issue of the Supreme Court and its intertwinement with the Electoral College.
The Electoral College is the method designed by the Founding Fathers to choose the American President. Every four years, candidates compete for the presidency, achieved by winning a majority of electoral votes. Each state possesses an electoral vote for each of its delegates to the House of Representatives and its senators. New York State, with its 29 representatives and two senators, receives 29 electoral votes. The number of electoral votes for a state may change every ten years following the census and population changes. States with greater populations possess more electoral votes than states with smaller populations. A candidate’s goal is to receive a majority of all possible electoral votes, or 270.
The winner of the popular vote in a particular state is awarded every single electoral vote for that state; electoral votes are not divided proportionally. In a theoretical state with 10,000 voters and 20 electoral votes, a candidate may win a bare majority of the popular vote (5,001) and receive all 20 electoral votes. In a second theoretical state with 5,000 voters and 10 electoral votes, a candidate could win every single vote and receive only 10 electoral votes. In this scenario, a candidate could win 10,001 to 4,999 votes and lose the electoral vote by 10 votes. According to the rules set by the Founders, the candidate ahead in the electoral vote wins the White House.
This was the exact case to occur in 2016. Donald Trump won the White House, not by his general popularity and likeability among the American public, but because he secured enough votes in a winning combination of states with large numbers of electoral votes. Trump lost the national popular vote by approximately three million but still leapfrogged his opponent Hillary Clinton in the Electoral College by winning slim popular majorities in individual states with more electoral votes such as Pennsylvania, Michigan and Florida.
In 2017, Trump took office with less than half of the American public having voted for him. He appointed Neil Gorsuch to fill the vacancy left by the death of Justice Antonin Scalia. Upon the sudden retirement of Justice Anthony Kennedy, he appointed Brett Kavanaugh. With the death of Justice Ruth Bader Ginsburg, he has made his third appointment with Amy Coney Barrett. These three justices, appointed by a President who won his governing mandate through non-majoritarian means, will reside on the Court until the time that current Colgate students begin to retire.
These three justices join three other conservatives on the Court. One of them, Chief Justice John Roberts, also received his appointment through a non-majoritarian method. President George W. Bush, like Donald Trump, won the White House through the Electoral College and also lost the popular vote to his Democratic opponent, Al Gore.
Four of the six justices in the majority on the Supreme Court received their appointments from minority Republican presidents who lost the national popular vote and were decimated in the popular vote in the most populous and most demographically heterogeneous states in the Union: California and New York.
It is easy to see the systemic problems in the Electoral College, particularly for a democratic republic as large and diverse as the United States. In one year, the Supreme Court Justices may make more decisions directly impacting the lives of Colgate students than the President may make in one four-year term. One need look no further than attempts to strike down the Affordable Care Act, rescinding protections for LGBTQIA+ individuals and preventing international students from entering the country. As progressives, we have lost the immediate battle with the Supreme Court. We can still win the war, not through court-packing or other gimmicks, but by constitutionally erasing the Electoral College into the dustbin of political history.