“Creative” isn’t a word typically applied to conservatives. Liberals are considered the dreamers on the political spectrum, their wild imaginations sketching visions of new worlds. Conservatives, with their resistance to change, are usually considered staid and, well, dull in comparison.
But when it comes to acquiring and maintaining power, the GOP has proved more creative than all of Hollywood put together. Time and again, and in service to a minority of the country, the Republican Party and its appointees have created and exploited loopholes in the law, bent and twisted norms and standards and otherwise invented rules out of whole cloth to achieve their aims.
Nowhere has that been clearer in the last two weeks than in the Supreme Court’s chambers, where novel use of a long-standing procedure is reshaping America. The court’s new term doesn’t begin until the fall, but the conservative wing has expanded the power and scope of its “shadow docket” to undermine Democrats’ priorities and prop up unpopular GOP policies. Unlike those for cases decided on the merit, these decisions don’t involve arguments before the bench or lengthy opinions. There’s nothing but an application for relief approved or denied and an unsigned memo announcing a summary decision or order.
There’s nothing illegal about these recent decisions — but their impact is unprecedented. Using this less transparent method, the court has overturned President Joe Biden’s extension of a federal eviction moratorium, forced his administration to reinstate the Trump administration’s “Remain in Mexico” policy and allowed Texas’ clearly unconstitutional abortion law to take effect.
The court often releases these orders in the dead of night, and because they’re not signed, we can’t even know for certain who wrote them. We can only know how many justices supported them by counting the dissents — in which the liberal members have been apoplectic in expressing their disdain. But the majority of the court is clearly fine with this lack of transparency as it referees the country’s laws.
The focus is rightly on #SCOTUS‘s abandonment of Roe. But don’t sleep on Kagan’s broader critique:
— Steve Vladeck (@steve_vladeck) September 2, 2021
“[T]he majority’s decision is emblematic of too much of this Court’s shadow-docket decisionmaking—which every day becomes more unreasoned, inconsistent, and impossible to defend.” https://t.co/rVQv2YXtlS
The Texas decision was exactly what the state’s lawmakers had planned when they drafted the abortion law. Under the law, anyone can sue a person accused of aiding an abortion, with $10,000 and legal fees up for grabs for any winning case. In his dissent, Chief Justice John Roberts noted that Texas has essentially “delegated enforcement of that prohibition to the populace at large,” adding, “The desired consequence appears to be to insulate the State from responsibility for implementing and enforcing the regulatory regime.”
He’s right. It’s no secret that Texas Republicans designed the law to dodge judicial review — and it worked. It’s some real galaxy brain thinking from the Texas GOP: If the state isn’t allowed to block abortions, why not just have individuals do the dirty work? Thanks to the Supreme Court’s shrug, it has become a template to ban almost all abortions. Republicans are set to introduce a copycat bill in the Florida Legislature.
As for elections, the GOP has clearly decided that if it can’t win based on the number of votes counted, the only solution is to take over the way votes are counted. To that end, as ProPublica reported Thursday, thousands of Republicans who believe Donald Trump won the 2020 election are signing up as precinct officers and other low-level elections officials.
The country’s state-level Republican parties were already filling up with Trumpists. Adding a new wave of zealots to the election machinery that just barely stopped Trump is the next domino to fall as we fight to keep our democracy intact. It’s too early to tell whether this groundswell of volunteers will change how elections are conducted, but it’s clear that such is the goal.
What binds these undemocratic power grabs together is that they require “democracy” to succeed. The shadow docket relies on a majority of the justices to function. The Texas GOP holds elected majorities in both chambers of the Legislature. The election officials ProPublica has tracked came into their positions legitimately. But once in power, they produce minoritarian outcomes that are then insulated from the majority’s imposing its will. It doesn’t matter that only a third of the country wants Roe v. Wade to be overturned, that districts in Texas have been gerrymandered so no Democrat can undo the changes or that a majority of votes may no longer win an election. Their power begets power, entrenching them and their policies. What we’re seeing from Democrats is not only a lack of imagination, but also a deadly sense of optimism. The way this is happening in plain view and with Democrats controlling the White House and Congress, it would seem easy enough to foil these plans. But Democrats, unlike their counterparts, are utterly committed to following rules from bygone eras whenever they’re in power. It’s why the filibuster is still in place in the Senate, even though it affects only Democratic legislation at this point. It’s why most states led by Democrats aren’t gerrymandering GOP seats out of existence. And it’s why the White House is still telling activists they can out-organize voter suppression. That asymmetrical dynamic is what Republicans are exploiting. The longer that dynamic is allowed to persist unchallenged, the less likely it is that Democrats will ever have the chance to break the cycle again. Helping preserve the filibuster instead of passing the John Lewis Voting Rights Advancement Act is the action of a group more committed to arbitrary rules than to protecting the people who elected them. It’s not abstract ideas that are under assault. It’s the woman who wants to end a pregnancy and keep control of her own life. It’s the Black man whose humanity can’t be protected at the ballot box. It’s families reeling from the pandemic who are faced with expulsion from their homes. What we’re seeing from Democrats is not only a lack of imagination, but also a deadly sense of optimism. It’s their seeming inability to predict that, when given the chance, Republicans will use maximalist tactics to retain power and control. Once Democrats understand that, they’ll know that rewriting the rules to best hinder that Republican instinct should be a priority, not an afterthought. As things stand, the GOP is creatively using every tool in its toolbox to dream up a system that caters to white, male, evangelical Americans to the detriment of everyone else. The Democrats are the ones living in the past — and they’re not going to like the future that is allowing to take shape.
Hayes Brown is a writer and editor for MS NOW Daily. 
