Justice Is Not Blind

To the Editors:

Two comments on Noah Feldman’s observation that a “liberal democracy requires a liberal populace that is prepared to vote for the policies it wants” [“Tipping the Scales,” NYR, July 19]. First, many times a liberal populace “wins” the popular vote and loses the election, e.g., Bush vs. Gore and Trump vs. Clinton. In this regard, second, Feldman does not address the critical role the Supreme Court plays in ensuring the integrity of the political process itself. Whether it is poll taxes, one person/one vote, campaign finance, hanging chads, or gerrymandering, the Court’s role is essential. His call to the polls will be truly Sisyphean in a world of Court-sanctioned voter suppression.

Brandon Becker
New York City

Noah Feldman replies:

Mr. Becker is right that liberals can win the popular vote and lose elections—but that applies only to presidential elections, not the congressional and state-level elections that liberals also must win to enact policies they prefer. As for the Supreme Court’s supervision of elections, it is certainly true that a conservative Court has already gutted the Voting Rights Act despite strong evidence of ongoing racial discrimination in voting practices. This past term, in a 5–4 decision, the Court upheld an implicitly partisan law on purging voters from the polls. A court with Judge Brett Kavanaugh replacing Anthony Kennedy will likely not be finding political gerrymanders unconstitutional. I wrote less about all these things because they have already occurred with Justice Kennedy’s blessing—including his vote this term not to strike down a partisan gerrymander. The best thing liberals can do given current election law is to win elections by larger margins, especially the all-important state legislative elections, which are the royal road to political gerrymandering. The new Court won’t stop conservatives from gaming the system. And gaming (including Bush v. Gore) is most effective when elections are close.