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.
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.
Semafor reported last night that Joe Kent, momentary half-resistance hero and full-time white nationalist weirdo, is being investigated by the FBI for leaking classified information. According to Semafor, at least, the investigation predates his high-profile, news-driving resignation. We don’t know many details of this investigation. It’s at least possible that, rather than being retaliation for the resignation, it was actually the cause of it. In other words, maybe Kent saw the investigation was building, that the moment was right, and made his push to clothe the investigation and any possible future charges as retaliation. But let’s set that possibility aside for the moment. Because there’s another possibility I want to explore, one that goes to the heart of how Trump II works.
