Can Biden Unify the Country? California v. Texas Says It All | Opinion

A popular truism of the day is how divided we are as a nation. President-elect Joe Biden ran his winning campaign on the promise to unify and heal. Yet internal disagreement and accompanying fear and suspicion have been present throughout much of our history. We can, in fact, see these fears as having structured the very Constitution that we use to define ourselves as a country, and thus it structures our contemporary political conflicts.

For example, the recognized need for a stronger national government motivated the constitutional convention, but the fear of such a government helped create the system of federalism that strives to divide and share powers between the federal and state governments. We were therefore moving toward becoming one nation at the same time that we were creating a system that preserved our separation.

The United States remained a plural, and not a singular, noun until the Civil War's conclusion nearly 80 years later. Lincoln transitioned from referring to the country as a collective "union," to a more unified "nation" over the war's course. While the language might have changed, the reality and structure of separation remained, and it has enabled the means and organization for our contemporary divisive political fights.

It is for this reason that state attorneys general have recently come to be major players in national politics. Through their attorneys general, conservative states banded together during the Obama years to fight health care, environmental, immigration, voting and other federal policies, repeatedly taking the Democratic administration to court. During the Trump years, progressive states followed the conservative lead in this process, using their powers against the Republican-led federal government. It is in these ways that the distinct "red" and "blue" Americas are given substance beyond political rhetoric and coloring on electoral maps.

Now, the Republican state attorney general of Texas is leading a lawsuit against a collection of progressive state attorneys general in yet another conservative challenge to the Affordable Care Act, also known as Obamacare. The Supreme Court is scheduled to hear oral arguments on Tuesday in the case, whose name couldn't illustrate our national division any clearer: California v. Texas.

As we have come to think of there being two Americas, we can see California and Texas as being their de facto flagships. Who better, then, to be the named disputants in this case?

These two states, however, have not always occupied these positions in American politics. It was not all that long ago when Texas gave us LBJ, and California birthed modern conservatism. So, while internal distrust runs through and structures U.S. political history, that same history shows us that another political constant is change.

Our internal divisions persist along familiar lines, but the specific geography of these divisions shifts over time, driven by migration, demographics and other forces. As they have before, these constantly moving energies stand to remold our political landscape, and the parties both recognize it—spurring hope in one and fear in the other.

U.S. Supreme Court
The U.S. Supreme Court on the morning of November 4. Al Drago/Getty

Coming into the closing weeks in the 2020 election, Democrats were hopeful that this would finally be the year that they flipped Texas. That, of course, did not happen, but the Democratic silver lining is that the percentage of Texas votes for their presidential candidate increased. California turned from a conservative to liberal bastion slowly and sporadically, and Democratic hopes in Texas will likely continue to outpace change in additional elections.

Republican leaders' efforts in Texas and elsewhere in 2020 to limit mail-in and drive-through voting, as well as ballot drop box locations, built off a longstanding but wholly unsubstantiated narrative of voter fraud in U.S. elections. With no real data to support the claims, one is left to conclude that the efforts are undertaken to stave off the forces in Texas and elsewhere that moved a state like California so far away from being the heralded home of Nixon and Reagan.

Resisting these forces in elections, though, is not the only way that Republicans have tried to build means of holding onto power. The rushing of Justice Amy Coney Barrett's appointment to the Supreme Court is evidence of their desire to buttress the space where red states can continue to challenge Democratic policies regardless of future elections.

Politics is both a short and a long game, and Republicans' efforts show that they understand this. The court's decision in California v. Texas is thus one of many tests of how well Republicans have built their defenses. What's more, its timing one week after the contentious 2020 election makes it a stark reminder that even if Biden may hope to unify the country, our constitutional structure works against this aim.

Joshua C. Wilson is a professor of political science at the University of Denver. He is most recently the co-author of Separate but Faithful: The Christian Right's Radical Struggle to Transform Law & Legal Culture.

The views expressed in this article are the author's own.