I was thinking last night about the denouement of the Broadview Six case, a collapse which I’m told by some legal observers stands a non-trivial chance of seeing some of the prosecutors disbarred. And I contrasted it with the series of TPM Reader emails about the “fancy lawyers.” A number of these emails start out with some version of, I’m not part of the legal elite, I’m just working here in the trenches as a lawyer in [this or that mid-sized city in the United States]. Or maybe, my background is in elite law but I’m down here in the trenches, etc.

If you’re not a regular listener to our podcast, I hope you’ll listen to the episode that will come out later this afternoon. It was, I think, a particularly good episode, in large part because we had such critical issues to discuss: Callais, the wave of emergency redistrictings across the southern tier of the old Confederacy and what seems to be a sea-change moment on Supreme Court reform among establishment Democrats. I want to expand today on some points about Supreme Court reform, offering some of the historical background for this present moment.

Every current member of the Supreme Court comes out of what we might call the elite academic-judicial nexus, which is to say they’ve been law professors at elite universities and judges in the federal judiciary. I believe this applies to all the current justices. It didn’t used to be this way. It used to be relatively common to have justices who had never served as judges before and had never been law professors. Frequently they were ex-politicians. Famously, William Howard Taft was an ex-president when he became chief justice. Earl Warren was a popular Republican governor of California who had never served as a judge until president Eisenhower nominated him as chief justice. If you go further back, many justices never even went to law school, though this was more a matter of the evolution of legal education. The last non-law school justice was James F. Byrnes. (In earlier history, you generally learned the law as a kind of apprentice and then passed the bar to practice.) There was a brief boomlet of chatter when Bill Clinton was elected that he should or would try to re-inject this “politician on the Court” tradition back into the system. Of course that didn’t happen. The idea has scarcely been entertained since.

Yesterday, Lauren Egan — who authors The Bulwark’s newsletter about Democrats — sent out a newsletter edition entitled “Get Ready for the Dem Court-Expansion Litmus Test.” (Egan tends to be fairly dismissive of Democrats’ intentions, with a kind of mainstream media vibe.) Today Chief Justice John Roberts is complaining that the public is misinformed thinking that the Supreme Court is made up of corrupt political actors. As I’ve written repeatedly, there are deep inertia pools of opposition to Supreme Court reform. It’s a much heavier, though just as critical, lift than contesting the gerrymandering wars or abolishing the filibuster. But these and other hints show that a movement and a coherent push are beginning to take shape.

It’s a good day to return to the question of the Supreme Court’s corruption and the necessity of reforming it in order to make democratic self-government possible again in the United States. The federal constitution is an expansive document. Within the system begun with Marbury v. Madison – which is subject to many reasonable critiques – it is possible to have more liberal or conservative jurisprudences, loosely tethered to the progress of presidencies and senates. The Roberts court is a different beast. It is the product of a decades-long effort to corrupt the federal judiciary. That degree of corruption first came into full view in the second decade of this century when the Court openly began to do three closely interrelated but conceptually distinct things.

First, The Meaning of Words is For Little People.

The Court has, with increasing boldness, manufactured new doctrines and text out of the constitution which simply do not exist in the document. Often they are implicitly or even explicitly ruled out by the plain text itself. The greatest example is the 2024 presidential immunity decision, a ruling contradicted by all the history of the document as well as its clear language. The framers knew how to create immunity. They did it for the work of Congress. They declined to do it for Presidents. The entirety of the decision is manufactured out of whole clothe. Whether the majority falsified this immunity because they thought it should exist or specifically for the benefit of Donald Trump hardly matters. It is corrupt, illegitimate and a wholesale attack on the constitution itself. The Court have also increasingly resorted to plainly absurd textual analysis to change the meaning of constitutional language the meaning of which has never been in doubt. The current birthright citizenship case, whatever the majority decides, is another example.

Second, The Choose Your Own Adventure Constitution.

Closely related to point one, the Court no longer has any consistent or even comprehensible jurisprudence. It simply has political goals it seeks to achieve – presidential immunity, an increasingly absolute right to firearms, a 14th amendment focused primarily on race not actually existing. Arguments are chosen by convenience simply as backfill to arrive at the desired end. The corruption often emerges most clearly in those brief moments when the logical conclusions of the Court’s own arguments are too much for even it to bear. Again, we have a recent example. Presidents can fire anyone in the executive branch based on nothing more than the presidential will, even when Congress has specifically given them protections against such dismissals. Except the Federal Reserve, even thought it is by every measure an independent federal agency constitutionally indistinguishable from the rest. Why is it different? Because Federalist Society ideologues actually don’t like inflationary monetary policy. So in this one case, it’s different … even when it’s not.

Third, Political Power if For Republicans Only.

While the corrupt majority has consistently advanced and enforced an ideological vision of how the country should be run it has another simpler brief: not allowing Democrats to govern when they are in power. When Republicans are in power the powers of presidency are almost limitless; when it’s Democrats the office is feeble and hemmed in by a cobweb of invented doctrines. We had the ironic benefit of two Trump presidencies sandwiching a Biden presidency to make this principle of action crystal clear. Quite simply, the corrupt majority ensures that only Republicans actually get the fruits of political victories.

In our thinned out political discourse people often use the term “corruption” to refer only to venal corruption – bribes, conflicts of interest mostly involving money, kept Justices like Clarence Thomas. That is neither the only nor the most significant form of corruption. In most cases venal corruption is significantly self-correcting. It gets exposed and prosecuted. The more general meaning of corruption is when a form of rot takes over an office or institution because of systemic and ingrained abuses of power. That is the case with the Supreme Court and it’s especially dangerous with the Supreme Court because a mix of history and restraint have left very few checks on its abuses. The Supreme Court is given specific powers to achieve specific ends. Over the last 15 years it has assumed vast new powers and used them consistently for anti-constitutional ends. Far from interpreting or defending the constitution it is at war with it. An orderly, proper and essential process of reform is entirely possible by simple statute law on simple majority votes.

Join me for a casual conversation with Brian Beutler, the proprietor of the newsletter Off Message and a former TPM colleague. Brian and I will use the news of the day as a jumping off point to chat about the Trump II era. We’ll be biting off some small topics like:

• How did we get to this point?
• How much worse will things get before they get better?
• Are we still being too optimistic?
• What does rebuilding American democracy look like?

We’ll be talking on Substack Live at 2 p.m. ET. See you then.