Following the US Supreme Court’s decision to overturn decades of precedent supporting affirmative action in higher education, President Joe Biden was pressured to reform the court. He said MSNBC’s Nicole Wallace that it would be a “mistake” to expand the court, because “I think if we start the process of trying to expand the court, maybe we’re going to politicize it forever in a way that is not healthy.” Looking at the whole of the last two years with this court, what is clearly politicized and unhealthy for democracy is the conservative majority on the court.
Let’s look at one decision in particular, Moore v. Harper. On the surface, the courtyard rejection of the most extreme version of the theory of independent state legislature was a great relief. Chief Justice John Roberts and conservative justices Brett Kavanaugh and Amy Coney Barrett joined the court’s three liberals in rejecting North Carolina Republican lawmakers’ argument that their interpretation of the Constitution’s election clause gives legislatures the ultimate power to decide federal election laws, in this case. a gerrymander of congressional districts. It was good. What wasn’t so good was Roberts’ vague and unspecified leeway notice and Kavanaugh’s contest claimed for themselves.
As electoral law expert Rick Hasen explain, Roberts “sets up the Supreme Court and other federal courts to routinely ask whether state courts are crossing the line in the most sensitive political cases,” and in particular election cases. He “held that the federal courts (and in particular the Supreme Court) can determine whether state courts have gone too far in their interpretation of state constitutions protecting the right to vote or in reading state election laws applied to federal elections. These disputes, Hasen points out, are often contentious in an election and can determine the outcome. This potentially includes presidential elections. What’s “too far” for a state supreme court? Roberts does not say so.
Kavanaugh expanded on that, leaving the door open to a myriad of challenges. He went back to the 2000s Bush versus Gore decision in which the Supreme Court appointed the president, while expressly indicating that this decision was unique and absolutely had to not be considered a precedent. Kavanaugh, of course, cites then-leader William Rhenquist and his advice that, when reviewing interpretations of state laws by state courts, federal courts “must necessarily consider the law of the state as it existed prior to the action of the (state) court. ”
Leah Litman, a professor at the University of Michigan Law School, calls it a “anti-novelty” doctrine, that any new legislation – state or federal – or new regulation should be suspected of being unconstitutional because it is new. She writing on how Kavanaugh invoked the idea in his deal on Moore for the Election Law blog. His first concern about its interpretation is that this “anti-novelty version of the ISL (theory of the independent legislature of the state) hampers a natural way in which the law develops – by parties presenting new arguments, buttressed by new evidence and new theories”.
“There will always be a first time that a particular state court finds a partisan claim for gerrymandering justiciable,” Litman writes. “Would the anti-novelty version of ISL prohibit that?” This should not, but as always with this Court, to be determined. Likewise, there will “always be a first time for every type of state court challenge to a state’s election laws, including when a state legislature passes a new or different type of law governing elections.” federal”. Are state court rulings on these new and different laws automatically subject to review by the Supreme Court? Maybe.
She also points out that it could prevent voter-elected state courts from doing what voters asked them to do. She uses the newly overturned Wisconsin Supreme Court as an example. “Would the anti-novelty ISL prevent the Wisconsin Supreme Court from rethinking the Court’s previous case law encompassing map-rigging and past writings in which 3 justices indicated they would throw out votes in Milwaukee in the context of the Effort to Challenge 2020 Election Results? ” she asks. “Again, it shouldn’t, but it’s hard to know where this Court could take such a principle.”
This court might not be willing to go all out on crackpot theories in order to help, say, Donald Trump nullify the election. But that doesn’t mean this judicial majority won’t use a modification of that theory to put its thumb on the Republican scale in redistricting cases and other elections.
If one factor in Biden’s reluctance to undertake court expansion is that the court has not been This extreme because of decisions like Moore, he clearly needs to think again. It is about a conservative majority considering how it can still thwart democracy in less radical, but still effectively radical, ways.
If Biden thinks the terms of arch-conservatives Clarence Thomas and Samuel Alito are due to end soon, so he will have a chance to shape the Supreme Court, he shouldn’t count on it either. Neither will ever resign while president, and the forces of nature are fickle. Even if either of these two were to move soon in one way or another, the majority of the majority are quite young in judicial terms and will be around for a long time to come.
This conservative majority could hold, according to some experts, until 2065. It’s sure to star Kavanaugh, Barrett and Neil Gorsuch – all of whom are in their 50s – for at least 20 years. The only way to block their malignant influence is to outnumber them; expand the court to dilute their power in the short term, and then enact further reforms that can preserve a balanced court in the future. There are obviously obstacles to this, the first being the election of a Congress capable of enacting it. But a president’s reluctance to reshape the court to save democracy because it might appear too political should not be a factor.
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