Some of the most consequential and trust-shattering Supreme Court decisions of late have been ones that could have been predicted decades ago. Certainly that’s the case with the Dobbs decision. Callais doesn’t have quite as long a history, in terms of attempts to overturn the precedent. But certainly it’s been in the cards for at least a decade. Still, it’s some of the smaller decisions that tell us just who and what this corrupt court is. Kate Riga notes one of them here: Conservatives on the Supreme Court have previously invoked the “Purcell principle” to rule that a change couldn’t be made to districts on the “eve” of an election. Now it’s fine to do so in states like Louisiana and Alabama where primary elections are actually already underway and tens of thousands of cast ballots must be invalidated.
The message is simple: there are no rules. Only power. It reminds me of my hand tool woodworking shop. There are a big selection of tools. And it’s just a matter of what helps the GOP and the Court in that particular moment. In a way it’s clarifying. Even helpful.
It took me a long time to come around to the necessity of reforming the Court. But I’ve been pushing this for three or four years now. And no moment I’ve seen has represented such a dam burst of support for reform. Each day I see a new middle-of-the-roadish Dem come out in support of it. It’s coming. I strongly suspect it will be a sine qua non position for federal elected Democrats by 2028 and quite likely before.
A few points along these lines.
It appears that Virginia Gov. Abigail Spanberger and Democratic State Senate Majority Leader Scott Surovell have ruled out the strategy of forced state supreme court retirements to overrule the state court’s decision. For what it’s worth, I suspect that strategy represents a failure of imagination about the possible paths forward in the state. I don’t know the particulars of the current Virginia state constitution. But a state legislature and governor combined usually have quite a lot of options open to them. My approach would be simply to state the obvious which is that the court exceeded its legitimate mandate. The existence of a statewide plebiscite in which the voice of the sovereigns were heard directly outweighs any strained and theoretical defect the justices think they may have found.
Meanwhile TPM Reader JG makes the pretty good point that this is a very, very shortsighted decision. The odds that the corrupt Court is going to come in and overturn this decision are basically nil. But what if they did? Do we really want this Court to come in and start invalidating the decisions of state supreme courts in interpreting state laws and state constitutions? No. We don’t. I generally see this as too cute by half in both directions. But this decision seems to me mainly an effort for state Democrats to say they did something rather than simply give up even though the something is absurd and conceivably dangerous.
I want to circle back to an email I got a few days ago from TPM Reader MS who disagrees that reform is viable or wise.
Here’s his note …
I am frustrated by the discourse surrounding what to do about the Supreme Court. It seems extremely simple-minded to me, not to put anyone down, that is not my intention. But I think the discourse skips over a few obvious points and I don’t really understand why.
The proposed remedy for the Supreme Court is basically court packing. This is offered up as the obvious solution and you are deemed insufficiently committed if you do not adopt the solution. But there are some obvious problems with placing all of the eggs in the court packing basket.
Court packing has not been tried in nearly 100 years, and was a failure the last time it was tried. I couldn’t begin to tell you what happened before FDR but I have a hard time supposing that there is a rich history of court packing before that. So the historical precedents for the success of such a thing are dismal — the precedents for the legality/acceptability of such a thing are scarcely better.
The Court and its allies would obviously respond in rhetoric and other tricks/tactics. They would paint the Dems as radical and for once, it wouldn’t be such a crazy fit.
Another problem that the tactic has is that the Republicans have just as much access to it as the Democrats. What if they proposed adding 2 Justices right now, how would Democrats perceive that? Well, that’s exactly how Republicans would perceive it if we did it. The most recent election for which we have data colors the Republicans as the more popular party — yes, I realize this is absurd but this is the ground setting for the discourse we are about to get into. “Win more elections,” I can just hear the Republicans say.
I think it would be beneficial to enlist an expert in the Supreme Court who is skeptical about court packing and invite him or her onto the podcast for an episode-length discussion or even debate. What would SCOTUS reform ACTUALLY look like? What would the Court do in response? What would Fox News say about it? Etc. etc.
This is a valuable part of the debate and I do not see it represented in the sources I consult.
This was my reply …
The size of the court was actually increased multiple times before the 1930s. As for the legality of expanding the court there’s literal no argument that it is illegality. It’s legal. That’s open and shut. Acceptability is a subjective question. It’s true that Republicans can further expand the court. But to me that’s more feature than bug since it decreases the important of individual justices and Supreme Court itself. You’re saying that adding justices is the only proposed remedy but that’s not the case. As for what Fox News would say, I think this is a very poor guide to action.
I’m very open to debating anyone. I don’t think a law school professor expert on the Court is a person worth debating it with frankly. They tend to be part of the problem.
But I would turn the question back at you: your solution seems to be to leave the current corrupt body in place. And allow it to continue exercising a judicial veto on any actions by Democrats. I’m curious how you justify that position.
In a further exchange, I said closing the door to reform means accepting a corrupt judicial legislative veto through the 2040s. I simply do not find that an acceptable option, certainly not something to accept in advance.
Again, we are emerging, slowly, hopefully, from a period in which Democrats were both contestants in partisan battles and upholders of the norms of an already-vanquished order. That status mixes the comic with the unworkable. It is more than anything else hopeless. You become both a player and the ref in which a contest in which only you obey the ref’s calls. It’s absurd. In such a circumstance, Democrats must use every lawful means and power at their disposal.
As I said earlier, I do not buy the idea that only a forced retirement of all the Virginia state court justices is the only way to undo this illegitimate decision. I suspect there are more narrowly-tailored solutions on offer. As for the Senate Majority Leader’s claim that the time remaining is too short in any case? Well, look across the southern states of the old Confederacy over the last week and tell me that again with a straight face.
To all the tut-tuts and complaints I would say, it seems like your answer is to do nothing. How do you justify that? The state legislature approved Virginia’s new maps and the voters of the state chose it in a free and fair election by a substantial margin. I would take that legitimacy into any battle. If your answer is to do nothing, please say that clearly and have voters judge your decision-making and values.
Since this may seem near a counsel of despair let’s pull back for a moment to take a broader view of the situation. Under Trumpism, of course the Supreme Court is now simply an adjunct on the run. They’re acting with what seems like a knowledge of the coming backlash and reasoning there’s simply no downside in taking every corrupt action available to lock in their power before the flood comes, to hopefully build a damn of autocracy and rigged elections that even a flood can’t overcome. That loss of popular support, that panic and despair should hearten their opponents.
For what it’s worth, I think the Democrats will win the midterm elections even without the Virginia gerrymander and notwithstanding the reverses of the last two weeks. The tide is that large. But this isn’t about winning a single election. It is about taking the steps necessary to make a rebirth of a more robust civic democracy possible. There is simply no excuse or rationale for leaving any lawful tool unused in making that happen.