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Radical legal scholar says Dems will probably have to reform the courts

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The New York Times has published an op-ed by that really lays the boots to the ultra-reactionary Roberts Court:

But to paraphrase Churchill, such a maneuver is a bad idea, except for all the alternatives. Here the alternatives boil down to just one: a predictable, reactionary majority on the Supreme Court for perhaps as long as another generation.

I write reactionary, not conservative, because true conservative judges like John Marshall Harlan are incrementalists, not averse to change, respectful of precedent and unlikely to come into the grips of radical fantasies like eliminating or remaking the modern regulatory-administrative state.

But with the seemingly inevitable rise of Amy Coney Barrett to the court, this impending six- person majority is poised to take a constitutional wrecking ball to generations of Supreme Court doctrine — and not just in matters of reproductive choice.

Just look at the record. In the 2018 Janus labor law case, Justice Samuel Alito took the first long step to undoing years of legislation that allowed majority unions to compel not membership, but payment of dues — an arrangement first found constitutional by the Supreme Court in 1977. And his decision was based on constitutional grounds — protecting First Amendment freedoms — so a legislative remedy is no longer possible.

The infamous Citizens United decision in 2010 — again in the name of the First Amendment — precluded meaningful legislation to discipline campaign finance commanded by rich and secretive forces. This effectively disabled a regime first enacted in 1974 but with roots in legislation reaching back to the time of Teddy Roosevelt.

In 2019, Chief Justice John Roberts — he of the “balls and strikes” — precluded on constitutional grounds judicial intervention to prevent blatant partisan gerrymandering. And he was the author of an uncompromising four-person dissent that would forever preclude referendum-installed, nonpartisan state commissions to redraw congressional districts, outside the power of state legislatures.

He also wrote for a four-person plurality (Justice Kennedy would not join him) in the 2007 Parents Involved decision that “the only way to stop discrimination on the basis of race is to stop discrimination on the basis of race.”

And perhaps most consequential of all, in 2013, Chief Justice Roberts invoked the irrelevant and arcane “equal footing doctrine” to invalidate a section of the Voting Rights Act, first enacted in 1965 and re-enacted as recently as 2006, which had been the bulwark against the gross voter suppression schemes that then immediately popped up and have wrought havoc in subsequent elections.

All these frankly reactionary decisions are incurable by legislation because they were said to be based in the Constitution. And every one of them favors, and was favored by, partisan Republican interests and was decided 5 to 4 by Republican-appointed justices.

Brutal, and there’s plenty more where that came from. And while the scholar tries to hold out hope that a new Owen Roberts will join John to preserve the Court, the conclusion that Dems are going to have to expand the courts is unavoidable:

Let’s see if the current Supreme Court majority overplays its hand. If it does, then Mr. Biden’s nuclear option might not only be necessary but it will be seen to be necessary.

And while making judicial reform part of a John Lewis Voting Rights Act of 2021 that passes in February, practically I think getting the votes is going to require the Court doing something outrageous, and I don’t think the new maximalist 6-3 majority is going to be able to resist doing something outrageous.

Anyway, pretty impressive the Times is soliciting some diverse voices. Wonder who this is — Kimberlé Crenshaw? Mark Tushnet?* Duncan Kennedy? Lemme check…

Charles Fried, a law professor at Harvard University, served as the solicitor general of the United States under President Ronald Reagan from 1985 to 1989.

Jeez, I dunno if I can trust that crazy Trotskyist.

*This post on court expansion is Fried’s colleague at his exasperated best, though.

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