The Gerrymandering Fight Should Be A Dress Rehearsal For Court Packing
Inside the mailbag: Joe Biden ... Pope Leo ... Abdul El-Sayed
Michael: What can the Democratic party or left of center people more generally do to more effectively convince the public that the Supreme Court is run by a partisan Republican majority? To make reforms up to and including court expansion is going to require a level of public support or even public demand, and very few in the Democratic party are doing anything even remotely effective in this space. (The best work being done is by people such as Leah Litman, but I think there needs to be some level of institutional Democratic party involvement along with the liberal legal community, just as the GOP has always been highly focused on judges and the courts).
P.S. Yes, this question is prompted by Saturday’s NYT expose on the beginnings of the Roberts shadow docket.
Everyone should read the expose. It’s based on memos from 2016 proving John Roberts weaponized both the shadow docket and a dubious constitutional principle (the major questions doctrine) because he personally felt President Obama’s industrial greenhouse-gas regulation was icky. Or that the big-business elite shouldn’t be burdened with it. Whatever his animating emotions, the decision was purely instrumental. And the consequences have been perverse. Right-wing abuse of the shadow docket has metastasized into one of the biggest and most opaque arrogations of power in American history. The MQD removed one of the last tent poles of principled federal jurisprudence. And, as it turns out, the regulation in question wouldn’t have been costly after all. Specifically, it would’ve cost $0. Because, contra John Roberts the genius, it wasn’t terribly onerous, and polluters thus met the rule’s benchmarks without any rule in place.
Now to the question: The main thing I want to do here is stress-test the premise that “[t]o make reforms up to and including court expansion is going to require a level of public support or even public demand.” Obviously if court expansion were toxically unpopular, and a highly salient issue, it would be a pipe dream. But assuming you mean something more like, “Democrats can’t do this until it’s popular and there’s a large clamor for it,” I don’t agree. To my eye, the urgency of court reform looks more like the urgency Democrats faced after Donald Trump ordered Texas to re-gerrymander its map last year. That confronted Democrats with a binary choice: respond or accept your status as a second-class party in our two party system. There wasn’t some huge national clamor for state-by-state gerrymandering in 2025. Most people probably couldn’t define gerrymandering if you asked them to, and idea didn’t poll well in the abstract. But it had to be done, and in the context of “fighting back” the public rallied behind Dems.
By analogy, Republicans and their justices have confronted Democrats with no shortage of provocations, and Democrats should accept that if they don’t expand the Court, they’ll be dooming themselves—just the same as if they hadn’t responded to Trump’s gerrymandering provocation in Texas.
The good news is, what you (and I) want has already happened for the most part. Between the theft of the Merrick Garland seat and the Amy Coney-Barrett power grab and the Clarence Thomas revelations and the Dobbs ruling and the presidential immunity ruling, the liberal public has developed a pretty clear sense of what’s up with the GOP justices.
A small amount of credit goes to left-of-center critics doing what they should be doing: building an unassailable case for reform; making it hard for status quo-happy Democrats to win primaries. Another small increment goes to the handful of elected Dems (Sheldon Whitehouse comes to mind) who’ve been consistent and intelligent critics of the Roberts court.
We could surely use more of that. Democrats themselves should be vocal about the need for some kind of reckoning, whenever appropriate: After bad rulings, to point fingers; after “good rulings,” to remind people that (e.g.) upholding birthright citizenship doesn’t wipe the slate clean.
Then if Thomas or Sam Alito retire this summer—or, in an increasingly likely scenario, if one of them retires during the lame duck period after Republicans lose the Senate, Dems should oppose Trump’s nominee theatrically. Especially if he selects a partisan hitman like Aileen Cannon or Emil Bove, as he likely would. That’ll be like the Texas gerrymandering moment. Either you fight back or you die.
But those kinds of maneuvers should all tend to reinforce a dynamic that has already radicalized the left of center against the Court. Most of the work here is done, and Dems who point to public opinion data to suggest reform isn’t popular enough are telling us something disqualifying about themselves.
Chris Morfas: What do you think of Matthew Yglesias’ argument (voiced with Zac Beauchamp in a recent Vox podcast) that Democrats and the nation would have been better off had Biden formed a unity government in 2021 to stabilize democratic institutions and processes instead of listening to The Groups? Any lessons going forward?
With the caveat/disclosure that I’ve only read the auto-generated transcript of this portion of the episode, I’d say Matt’s take is correct, but also that there’s no one correct answer to the implied question, and the bar for correct answers is extremely low.
What’s the implied question?