John Roberts, Roger Taney, And The Unbearable Weight Of Desperation

A horror story.

(Photo by Chip Somodevilla/Getty Images)

Donald Trump’s corruption, the way he stuffs his pockets as the country rots, gives rise to a weighty political paradox.

It is, on the one hand, a gift to his opposition, particularly as Democrats reawaken to the reality that voters hate corruption. Nearly every American is worse off for it. And most of us are incensed.

But it is also a source of volatility, fuel for further attempts to overturn elections. Suddenly Trump has everything to lose by losing, and nothing to lose by attempting another coup. He’s too pig to fail, you might say.

And so while his corruption will make it easier for Democrats to sweep the midterm elections, it will also make him more determined to steal back their victories. That’s why the past month’s news read the way it did: A slush fund to buy a second insurrection. An election-denying prosecutor in North Carolina named Dan Bishop who’s up to god knows what. A promotion for the acting attorney general who’s promised Trump total loyalty. A new interim spy chief, chosen for his willingness to mine confidential government documents seeking dirt on Trump’s enemies. All while Trump increases the pace of looting, and abandons any pretense of trying to win the old-fashioned way.

The really alarming thing, though, is how Republicans at key hinge points seem willing or eager to go along with him. His allies in state legislatures helped national Republicans steal perhaps five to 10 House seats through mid-Census gerrymandering. They were given a leg up by Republicans on the Virginia Supreme Court, which summarily voided a voter-approved pro-Democrat gerrymander, and by Republicans on the U.S. Supreme Court, who allowed southern Republican legislatures to redraw congressional maps in the middle of primary elections, creating new Republican seats just in time for the midterms.

Democrats have noticed. How could they not? Their countercoup strategy is to make do with what they have on their side: people, and the law as written. Run up the score enough to make overturning the election logistically difficult. Beat back bad-faith challenges to Democratic victories and other rule-breaking efforts to steal seats.

Part one of that is clearly achievable.

But part two depends on…maybe more of a prayer than an assumption. It’s true that when Trump tried to steal the 2020 election, the courts held. They rebuffed Trump’s efforts across the country. And as of today, at least, the composition of the courts isn’t much different than it was six years ago. Presumably the judiciary will do the right thing again, yes?

In other words, maybe the Republicans on the Virginia and U.S. Supreme Courts weren’t interfering in the midterms on Trump’s behalf. Maybe they were just applying the law as they understand it. Ask them and they’d say: It isn’t the judiciary’s job to tell state legislatures how to conduct their affairs; and it isn’t the Supreme Court’s job to step in and create fairness when state legislatures won’t.

It’s just a total coincidence these doctrines exist the way they do, and happen to advantage Republicans going both ways.

We can’t know what’s in anyone’s heart (though we do know what some of them say when they think no one’s listening). But I believe it’s folly to assume Republican judges will once again refuse to play ball with Trump—and, ironically, it’s for the same basic reason that Trump can’t abide defeat: They, too, have everything to lose by losing, and nothing to lose by helping Trump complete his coup. In the winter of 2020, their interests diverged, or at least seemed divergent. Today, they are completely aligned.

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This analysis doesn’t just apply to Clarence Thomas and Samuel Alito, who are all but unrepentant insurrectionists, and venally corrupt as well. They may fear personal accountability, and they certainly don’t want Democrats making policy. But they mostly just view themselves as soldiers in God’s war against the Constitution. They’re ready to have it out.

It’s the others who have every reason to abandon the prudence they mustered in 2020.

A lot has changed since then. When they declined Trump’s last legal challenge to his defeat, they likely imagined that the last great threat to the Roberts Court revolution was gone. Trump would give way to Joe Biden and fade into irrelevance; Democrats would let bygones be bygones; and the right-wing scaffolding the justices had built would remain intact for a less off-putting GOP standard bearer to exploit.

But then Trump mounted a comeback. He reclaimed control of the party, and gave the Republican justices a choice: you’re with me or you’re with the Democrats. They didn’t hesitate to pick a side. They went out of their way to protect Trump from political and criminal accountability for the January 6 insurrection. Then when Trump returned to power, they used their shadow docket to advance his interests by fiat, without explaining themselves to the public. And that was before their ruling in Callais, which transformed the Voting Rights Act from a statute that prohibited gerrymanders intended to disenfranchise black voters into a doctrine meant to encourage anti-black gerrymanders and forbid pro-minority gerrymanders.

They’ve been behaving badly, and they know it. They know they’ve radicalized many Democrats who never imagined they’d come around to the importance of expanding the Supreme court. And they know that court expansion isn’t just insurance against future fuckery. It’s a means of redressing the Court’s worst, most capricious decisions going back more than 20 years.

All that hard work, for nothing. But it’s worse than that: Six years ago, they could tell themselves that history is written by the winners and they’d won. Trump may have lost, but not by a wide enough margin to put the balance of the Court at risk. It’d take at least a decade and incredible luck for Democrats to flip a 6-3 Republican majority. Their ill-gotten gains were safe. And history would accommodate itself to the idea that Roberts court jurisprudence was legitimate—American as apple pie—rather than a consequence of random happenstance and theft.

But they can see the anti-Trump rebellion brewing, and they know it doesn’t just threaten their power. It threatens to consign them to the legal anticanon along with some of the country’s greatest historical villains.

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In other words, it’s not just win some, lose some. Whatever the justices truly believe about the Constitution or the law they’ve created, they know that the historical discrediting of past courts has tainted legacies and foreclosed certain judicial methods in perpetuity—particularly reactionary ones, designed to subjugate minorities and rig American democracy for the ruling class.

Every law student in America learns about the anticanon—the worst rulings in the Supreme Court’s history: Dred Scott, which upheld slavery. Plessy, which upheld segregation. Lochner, which invented a right of contract as a pretext to void all kinds of government regulation, from workplace safety to the minimum wage. And the more recently overturned Korematsu, which upheld Japanese internment.

We have not backslid as far as slavery or Jim Crow or internment. But between the inversion of the Voting Rights Act and Trump’s unchecked prison camps, we’re making steady progress. The Roberts era has more broadly resembled the Lochner era in its intent—Roberts did not invent one doctrine to proscribe liberal governance, he’s invented doctrines as needed to proscribe liberal governance.

And that was all before Roberts’s decision in Trump v. United States, which transformed the presidency into a zone of lawlessness for would-be dictators. Republican ones, anyhow.

This is my rendering of the history, and I suspect it will strike many readers as a bit tendentious. But if the worst of the Roberts Court rulings are overturned in the aftermath of a mass rising against the Trump regime, mine will become the common understanding. Because it is the correct one.

First, though, Democrats have to win those elections, and claim their seats. If all goes well, they can put a down payment on upending the Roberts era starting next year. All they have to do is win back the Senate and place an embargo on Trump’s judicial nominees. Six months ago, that seemed like a stretch. Today, much less so—and everyone in the Republican Party knows it.

Now ask yourself: what wouldn’t Roberts and the other justices do to stop this?

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It’s November 2026. Democrats have just swept the midterms.

From an electoral vantage point they’ve done all that could’ve been asked of them. Yes, they mostly just surfed a huge anti-Trump wave; but ultimately their task was to not screw anything up too badly—and they didn’t. The Trump administration, along with its loyalists in the states and on the bench, had been signaling interest in overturning the election if at all possible, but Democrats won seats beyond the margin of shenanigans. Stealing back a House majority would be more or less mathematically impossible.

Better still, on a wave this big, Democrats have managed to flip the Senate, too. Barely. They defended seats in Michigan and Georgia, while flipping North Carolina, Iowa, Alaska, and (by the narrowest of margins) Texas. But partisanship denies them a pickup in Ohio, while scandal denies them a pickup in Maine. A disappointment, but cosmically balanced—after all, if it weren’t for scandal politics, they wouldn’t have won back Texas. The biggest prize on the map. A cause for celebration.

Until… surprising no one, Trump alleges fraud. So does the loser, Ken Paxton, who also happens to be the state’s sitting attorney general. They race to federal court, claiming Paxton is the rightful victor. A Republican judge disqualifies enough ballots to flip the result. Democrats appeal. The appeal reaches the Supreme Court quickly. Control of the Senate, and thus the legitimacy of the entire U.S. government, hangs in the balance.

How do you expect the court to rule. And what are you—voter, congressman, senator¹—prepared to do about it?

1. 50 Democratic senators could defy the Supreme Court and insist on seating Talarico anyhow. Would they unanimously agree to do so? Even John Fetterman?