Following the U.S. Supreme Court’s decision to reverse decades of precedent upholding affirmative action in higher education, President Joe Biden was pressed on reforming the court. He told MSNBC’s Nicolle 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, we're going to politicize it maybe forever in a way that is not healthy.” Looking at the whole of the last couple of years with this court, what is clearly politicized and unhealthy for democracy is the court’s conservative majority.
Let’s look at one decision in particular, Moore v. Harper. On the surface, the court’s rejection of the most extreme version of the independent state legislature theory was a great relief. Chief Justice John Roberts and conservative Justices Brett Kavanaugh and Amy Coney Barrett joined the three liberals on the court to reject the North Carolina Republican legislators’ argument that their interpretation of the Constitution’s elections clause gives legislatures ultimate power in deciding federal elections laws, in this case a gerrymander of congressional districts. That was good. What was not so good was the vague and unspecified leeway Roberts’ opinion and Kavanaugh’s concurrence claimed for themselves.
As elections law expert Rick Hasen explains, Roberts “sets up the Supreme Court and other federal courts to routinely ask whether state courts are crossing the … line in the most sensitive of political cases,” and particularly elections cases. It “held that federal courts (and especially 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 statutes applied to federal elections.” These disputes, Hasen points out, are often being litigated during an election and can determine the outcome. That potentially includes presidential elections. What’s “too far” for a state supreme court? Roberts doesn’t say.
Kavanaugh expanded that further, leaving the door open for myriad challenges. He went back to the 2000 Bush v. Gore decision in which the Supreme Court selected the president, all while expressly stating that this decision was a one-off and should definitely not be considered a precedent. Kavanaugh, of course, cites then-Chief William Rhenquist and his guidance that in reviewing state courts’ interpretations of state laws, federal courts “necessarily must examine the law of the State as it existed prior to the action of the [state] court.”
University of Michigan Law School professor Leah Litman calls this an “anti-novelty” doctrine, that any new legislation—state or federal—or new regulation should be suspected of being unconstitutional by virtue of being new. She wrote about how Kavanaugh invoked the idea in his concurrence on Moore for the Election Law Blog. Her first concern with his interpretation is that this “anti-novelty version of ISL [independent state legislature theory] impedes a natural way in which law develops—by parties making new arguments, supported by new evidence, and new theories.”
“There will always be a first time when a particular state court finds a partisan gerrymandering claim justiciable,” Litman writes. “Would the anti-novelty version of ISL bar that? It shouldn’t, but as always with this Court, TBD.” Likewise, there will “always be a first time for every kind of state court challenge to state election laws, including when a state legislature adopts a new or different kind of law regulating federal elections.” Are state courts’ decisions on those new and different laws automatically subject to Supreme Court review? Possibly.
She also points out that this could prevent state courts that are elected by voters from doing what voters put them in office to do. She uses the newly flipped Wisconsin supreme court as an example. “Would the anti-novelty ISL bar the Wisconsin Supreme Court from rethinking the Court’s prior jurisprudence embracing rigged maps and prior writings in which 3 Justices indicated they would throw out votes in Milwaukee as part of the effort to challenge the results of the 2020 election?” she asks. “Again, it shouldn’t, but it’s hard to know where this Court might take such a principle.”
This court might not be willing to go all-out on crackpot theories in order to help, say, Donald Trump overturn elections. But that is not to say this court majority won’t use a modification of that theory to put its thumb on the scale for Republicans in redistricting cases and in other elections.
If one factor in Biden’s reticence in taking on court expansion is that this court hasn’t been that extreme because of decisions like Moore, he clearly needs to think again. This is a conservative majority looking ahead to how it can still thwart democracy in less radical ways, but still effectively radical.
If Biden is thinking that the tenure of arch conservatives Clarence Thomas and Samuel Alito has to be ending soon, so he’ll have a chance at shaping the Supreme Court, he shouldn’t be counting on that either. Neither will ever resign while he’s president, and the forces of nature are fickle. Even should either of those two soon move on one way or another, the majority of the majority is pretty young in court terms, and will be around for a looooong time to come.
This conservative majority could hold, some experts believe, until the year 2065. It’s certainly going to feature Kavanaugh, Barrett, and Neil Gorsuch—who are all in their 50s—for at least another 20 years. The only way to block their malign influence is to outnumber them; expand the court to dilute their power in the short term, then enact further reforms that can preserve a balanced court in the future. There are obviously obstacles to that, the first one being electing a Congress capable of enacting it. But the unwillingness of a president to reshape the court to save democracy because it might look too political shouldn’t be a factor.
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