The Supreme Court’s decision in Louisiana v. Callais took 36 pages to explain why Section 2 of the Voting Rights Act is about combating intentional racial discrimination, not allowing racial gerrymandering. However, House Minority Leader Hakeem Jeffries wrapped it up in one word: “illegitimate.”
Jeffries was not speaking of the case, but the Court. The man who would become the next Speaker of the House if Democrats retake power in November has joined other radicals in denying the legitimacy of the nation’s highest court.
Just for the record, the Supreme Court did not strike down Section 2, but said that neither the law nor the Constitution allows legislators to manipulate district lines to guarantee that candidates of a particular race will be elected. It was written not to give any race an advantage, but to prevent a state from creating a disadvantage to voters based on their race. The Act prevents any State from intentionally drawing districts “to afford minority voters less opportunity because of their race.”
This is a matter upon which people of good faith can disagree. Many of the justices have been long opposed to racial criteria in areas ranging from college admissions to voting districts. Chief Justice John Roberts stated it bluntly in 2006 that “It is a sordid business, this divvying us up by race.” Like others, Roberts abhors racial discrimination but declared in another case that “way to stop discriminating on the basis of race is to stop discriminating on the basis of race.”
You will find no such distinctions in much of the press where experts declared the death of equal voting laws in America. UCLA Law Professor Richard Hasen dispenses with any nuance and simply ran a Slate column titled “The Slaying of the Voting Rights Act by the Coward Alito.”
For years, liberal law professors have been trashing conservative justices, including Berkeley Law Dean Erwin Chemerinsky, who called them “partisan hacks.”
However, the name-calling has mutated into a movement to scrap the Court or the Constitution, or both. Chemerinsky wrote a book recently titled “No Democracy Lasts Forever: How the Constitution Threatens the United States.”
Rep. Jamie Raskin (D-MD) joined Jeffries in calling for changing the Supreme Court after the decision: “we’re going to have to try to transform the way the Supreme Court has been gerrymandered itself and stacked and packed with MAGA appointees.”
There was, of course, no such movement during the decades with a liberal majority that set aside an array of long-standing cases. It was only when a stable conservative majority emerged that law professors declared the Court illegitimate or dangerous, with many calling for packing the Court with an instant liberal majority once Democrats retake power.
I discuss some of these voices as the “new Jacobins” in my book Rage and the Republic, figures echoing the radical concepts or means used in France before what became known as “The Terror.”
Law professors Ryan D. Doerfler of Harvard and Samuel Moyn of Yale have called for the nation to “reclaim America from constitutionalism.” Last December, they published a column titled “It’s Time to Accept that the US Supreme Court is Illegitimate and Must be Replaced.”
They insist that citizens must be rid of this meddlesome court: “remaking institutions like the US supreme court so that Americans don’t have to suffer future decades of oligarchy-facilitating rule that makes a parody of the democracy they were promised.”
Many Democrats realize that the public is rather attached to both the Constitution and its core institutions. That is why various Democratic politicians and pundits have been pledging to pack the Court once they are back in power. Some have suggested that, if they are going to change the political system and retain power, they will have to do it with the help of a compliant Court.
Democratic strategist James Carville stated matter-of-factly, “They’re going to recommend that the number of Supreme Court justices go from nine to 13. That’s going to happen, people.” He added recently, “Don’t run on it. Don’t talk about it. Just do it.”
To do that, you must first delegitimate the Court. You must attack both the individual justices and the institution itself. You need true rage to get a people to tear apart the core institution of a Republic on its 250th anniversary.
Now you have the next possible Speaker of the United States declaring the Supreme Court illegitimate because he disagrees with its interpretation of the law.
What these figures do not mention is that the majority of opinions by the Supreme Court are unanimous or nearly unanimous. A comparably few cases break along strict ideological 6-3 lines. Indeed, just last week, it was President Donald Trump who was denouncing the conservative justices as disloyal and weak for, again, ruling against his Administration.
It is not the voting record nor the underlying interpretations that are motivating this campaign of delegitimation. It is power. Former Attorney General Eric Holder explained it most clearly recently in pushing the packing plan after the Democrats retake power: “[We’re] talking about the acquisition and the use of power, if there is a Democratic trifecta in 2028.”
Jonathan Turley is a law professor and the New York Times best-selling author of “Rage and the Republic: The Unfinished Story of the American Revolution.”
