On April 29, the conservative supermajority on the Supreme Court gutted the Voting Rights Act or VRA, opening the floodgates for Republican state governments to eliminate Black representation in Congress throughout the South in a lightening-fast replay of how the 19th-century Supreme Court paved the way for Jim Crow segregation, in defiance of the 13th, 14th and 15th Amendments.
After the 2020 census, Louisiana’s legislature created a map with five majority-white and one majority-Black districts, even though Black people made up one-third of Louisiana’s population. Black voters challenged the new maps as a violation of VRA. After courts found in their favor, and new maps were drawn, a group of white voters sued, claiming that the new maps violated their rights. And the conservative Supreme Court agreed: white rights, good; Black rights… too bad.
The immediate response has been a dramatic escalation of partisan redistricting, but as Harvard law professors Nikolas Bowie and Daphna Renan argued in the New York Times, the Court “has effectively killed the Second Reconstruction, the mid-20th-century civil rights revolution,” exactly as it did the first Reconstruction — but only after Radical Republicans initially prevented it from acting — and the way forward is to draw lessons from that time to limit the Supreme Court’s power.
Republicans Rush To Purge Black Representatives In Dixie
Almost immediately, Republicans in southern states began announcing plans to redraw their congressional districts to eliminate seats held by Black Democrats, starting with Louisiana Gov. Jeff Landry (R), who suspended an election in which absentee ballots had already been cast. In Alabama, Gov. Kay Ivey (R) called a special session to redraw congressional and legislative maps, even though ballots had already been mailed out in the state’s primary election. In Tennessee, Gov. Bill Lee (R) did the same, targeting the state’s sole remaining majority-Black district in Memphis. In Florida, the state legislature was already drawing new maps in anticipation of the ruling, and they were signed into law the next Monday.
But in Georgia, Gov. Brian Kemp rejected redistricting, noting that “Voting is already underway.” And North Carolina has already held and certified its primary elections. The same is true of Mississippi, but Gov. Tate Reeves (R) has convened a special session to redistrict state supreme court elections, and Trump is pressuring the state to redistrict congressional maps as well. But with Black people representing nearly 40% of the state, efforts to eliminate Alabama’s sole black representative could backfire, so state Republicans are reluctant to act.
South Carolina stood alone in seeming to stand by its existing maps — for purely partisan reasons. “We need to be careful about this because in an effort to go to 7-0, we very well could go to 5-2,” State Senate Majority Leader Shane Massey told South Carolina Public Radio.
As an overview of all this, the New York Times ran a map of eight Southern states, already intensely gerrymandered by their Republican legislatures. Of the 24 existing Democratic seats — almost all held by minorities — the Times projected Republicans would take over 11.
In partisan terms, Democrats could blunt the impact, according to an analysis by Fair Fight Action reported by The New Republic, which found that Democrats could redraw anywhere from 10 to 22 congressional seats in time for the 2028 elections if they push hard with redistricting in seven blue and swing states. And Democrats immediately showed signs of doing so, starting with New York, where Gov. Kathy Hochul voiced her support. As with California, New York law will require voter approval, but that’s unlikely to be a problem in response to the extremism and racism of the southern GOP redistricting efforts.
The Need For Fundamental Court Reform
But neutralizing the GOP’s partisan advantage doesn’t address the mass disenfranchisement of Black and Hispanic voters, and the sidelining of their representatives in the political sphere. Nor does it do anything about the increasingly lawless Supreme Court, which seeks to dictate to everyone else and will apparently do anything to thwart efforts to make America more democratic and give minority voters a voice, as the 15th Amendment intended to do.
This is why the larger issue of confronting judicial supremacy cannot be ignored, and why many who’ve resisted Supreme Court reform in the past have begun to change their minds.
In the Times, Bowie and Renan noted that post-Civil War Radical Republicans in Congress “debated measures ranging from declaring certain federal laws beyond judicial reach to changing the number of justices,” and “the partial measures they enacted saved Reconstruction — for a time.” But the most relevant ideas now “are the comprehensive reforms they proposed but never fully enacted.” The two are co-authors of a forthcoming book, Supremacy: How Rule by the Court Replaced Government by the People, and there’s growing pressure to challenge that judicial supremacy, with even bolder ideas than were considered in the 1870s.
Reform Deferred Only Makes Things Worse
There was some talk of reform in terms of court expansion, after Trump appointed three justices with dubious means at best: One nomination was stolen from Barack Obama, when GOP Senate Leader Mitch McConnell refused to hold hearings on his nominee, another stolen was from Joe Biden, when McConnell rushed Trump’s appointee to confirmation even after voting in the election had begun, and the third approved despite multiple accusations of sexual assault.
When Biden took office, the most radical proposals getting wide attention were to expand the Court. But rather than even consider acting, Biden appointed a commission to study the problem to death, which only seemed to further embolden the Court.
But calls for reform surged again after the Court struck down Roe v. Wade — and for good reason. Support for Roe was almost 2-1 in most polls, while three of the justices who voted to overturn it were nominated by a president who lost the popular vote, and four of them were confirmed by senators who represent a minority of the American people, as well as lying during their confirmation hearings about their willingness to overturn Roe.
Even if the decision’s legal and historical arguments hadn’t been eye-rolling — ignoring the prevalence of legal early-term abortions in America in the 18th and 19th centuries, while citing a ruling from an earlier witch-hunting judge — the arrogant disregard for the will of the people caused a sharp drop in approval for the Supreme Court, and an increased willingness — even eagerness — to change it.
Yet, Democrats failed to capitalize on the public backlash to Roe’s repeal. As a result of such timidity, the Court grew even bolder, protecting Trump from standing trial and giving him a get-out-of-jail-free card, which enabled his return to the White House. So now, in turn, reformers’ ideas have grown bolder as well.
Beyond Expansion: New Calls For A New Court
Rather than expand the Court, still leaving it in place as an exalted, unelected super-legislature, more and more people are calling for stripping it of power, in favor of something that acts more like a real Court. Article III, Section 2 of the Constitution gives Congress the power to limit the Court’s jurisdiction over cases on appeal, and Congress did that specifically during the First Reconstruction. Rather than do it on a case-by-case basis, Congress could do it for everything, giving appellate jurisdiction to a new court specifically designed to remedy the problems with the Supreme Court.
One such proposal, introduced by Rep. Sean Casten of Illinois, would create a court drawn by lot from each circuit of the federal judiciary to serve for a period of one year. Another proposal, described by Justin Briley at Liberal Currents, would draw federal judges by lot on a case-by-case basis, creating in essence a jury of judges.
Some have argued that Court reform is the last thing we need, because an independent judiciary is a check on executive power. But the reality is that while lower courts have been something of a check on Trump’s lawlessness, the Supreme Court has repeatedly undermined them, particularly with its shadow docket rulings, brief, cryptic, “interim” rulings that frequently allow Trump’s lawlessness to continue, destroying people’s lives, while lower court rulings are being appealed. Proposals like Casten’s and Briley’s would actually strengthen judicial independence, unifying the judiciary in contrast to the Supreme Court’s current war with the lower courts on behalf of Donald Trump.
The immediate battle is simply to counter the GOP’s relentless redistricting assault on democracy, so that Democrats can win the House and begin to rein in some of Trump’s authoritarian lawlessness. But much more than that is needed in the long run, and without major court reform, none of it will be possible. So the time to start discussing it is now.