The state of Wyoming, with fewer than 600,000 residents, sends two Senators to the U.S. Senate.
The state of California, with nearly seven times as many (nearly 40 million) residents, also sends two Senators to the U.S. Senate.
As Max Boot notes in a recent Washington Post column, “Twenty-one states with fewer total people than California have 42 Senate seats.”
Granted, Wyoming has only one U.S. Representative, while California has 53 U.S. Representatives. But the Senate has unique powers, including the approval of appointees to the Supreme Court.
Numerous Constitutional experts and scholars have both justified and criticized this “skewness” in Senate representation and in the electoral system.
Commenting on the recent SCOTUS decision on abortion, Max Boot takes it one step further and poses “We are living under minoritarian tyranny, with smaller states imposing their views on the larger through their disproportionate sway in the Senate and the electoral college — and therefore on the Supreme Court” and how “[t]his undemocratic, unjust system has produced the new Supreme Court rulings on gun control and abortion.”
In his Washington Post opinion piece, “The Supreme Court rulings represent the tyranny of the minority,” Boot recalls how Alexander Hamilton, in 1787, “warned that giving small states like Rhode Island or Delaware ‘equal weight in the scale of power’ with large states like ‘Massachusetts, or Connecticut, or New York’ violated the precepts of ‘justice’ and ‘common-sense.’”
Boot writes how “Hamilton’s nightmare has become the reality of 21st-century America” and reflects on recent important Supreme Court decisions – e.g., Roe v. Wade, gun “rights” — that clearly fly in the face of the will of the majority and just as clearly are the result of a skewed, “undemocratic, unjust” representative and electoral system:
• Fifty-four percent of Americans want to preserve Roe v. Wade and only 28 percent want to overturn it. Fifty-eight percent want abortion to be legal in most or all cases.
• [Sixty-Five] percent of Americans want stricter gun controls; only 28 percent are opposed.
More compelling, Boot quotes Economist correspondent G. Elliott Morris’:
5 of the 6 conservative Supreme Court justices were appointed by a Republican Senate majority that won fewer votes than the Democrats [and] 3 of the 6 were nominated by a president who also won a minority of the popular vote.
One would expect the highest court in the land to be consistent when it comes to states’ rights and to precedent and history.
On states’ rights, Boot points out that “[t]he majority conveniently favors state’s rights on abortion but not on guns:” He writes, “the Supreme Court’s hard-right majority just overruled a New York law that made it difficult to get a permit to carry a gun, while upholding a Mississippi law that banned all abortions after 15 weeks.”
On precedent, legal history and settled law, the Court is just as inconsistent: The New York state gun-control law is 109 years old and Roe v. Wade is 49 years old, Boot points out.
Boot reminds us of how Mitch McConnell’s shenanigans and collusion with Trump on Supreme Court nominees have made an “inequitable” situation even more so.
He concludes with a warning that the “crisis of governmental legitimacy brought about by minoritarian tyranny” could even get worse and particularly bemoans Justice Clarence Thomas’ call on the Court “to overturn popular precedents upholding a right to contraception, same-sex relationships and marriage equality.” “So much for Hamilton’s hope that ‘the sense of the majority should prevail.’”
1. Curiously (conveniently?) absent from Thomas’ threats to ignore the majority, precedent and settled law is a promise to revisit interracial marriage (Loving v. Virginia).
2. According to the latest NPR/PBS NewsHour/Marist poll, Americans – by a 56%-to-40% margin, oppose the court’s decision, “including 45% who strongly oppose it.”
The author is a retired U.S. Air Force officer and a writer.