Are Democratic Voters Or Democratic Elites To Blame For Democratic Timidity?

Patt: Ohio defied their Supreme Court and ran their 2022 election with maps that had been invalidated by their Supreme Court. Should Virginia do the same, as well as enact the age limit on justices?

Max M.: If it’s legally possible, should Abigail Spannberger move to expand Virginia’s Supreme Court? That institution is clearly going to be an obstacle for VA Democrats in the pre-2028 re-districting battle.

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To Patt: Yes, but these acts of defiance serve different purposes.

The former idea is rooted in discrete principles of democracy: 1. The same rules must bind all—that is, in matters that touch on federal law or federal representation, what goes in Ohio must go in Virginia; and 2. The people must be sovereign. That is, courts are at their lowest ebb of power when they’re reviewing direct democratic decisions. Courts are supposed to strain to defer to legislators, because legislators are accountable to voters, and presumably their enactments are expressions of public will. But there is always the possibility that legislators get delegated this representational power from citizens, and then screw things up. They might subvert public will, or, more aptly, they might traduce the Constitution in pandering to their voters, and judges can reasonably claim to know better than legislators whether an act of Congress is constitutional.

Their power is rightly even greater vis-a-vis unelected public servants, because the distance from the people is greater. People elect members of Congress and the president. Together they make law. That law might delegate certain rulemaking authority to government agencies, which we entrust to carry out the public will faithfully. But if a regulator screws something up, and a court throws the ensuing rule out for one reason or another, it doesn’t follow that the court overturned the will of the people. We’re many layers removed at that point.

By contrast, when the people of a state amend their state constitution by direct referendum, the bar for courts to overturn the amendment need to be extremely high. Certainly not 4-3 on a fucking technicality. That’s what happened in Virginia, though—the court applied the least possible deference when the most was required—and there is a strong pro-democracy argument that the legislature should retroactively erase the technicality, and proceed with the new maps. The people knew what they were voting for, and it’s not the court’s job to tell the people Too Bad. We, the judges, are the true sovereigns.

The latter act of defiance—shrinking or unseating the Virginia supreme court—would be an act of accountability and deterrence. It would be to send the message that any public official who abuses their power to subvert democratic fairness becomes fair game in and of themselves.

I think Virginia Democrats should do both things, but they are piecemeal forms of escalation, and each is worth doing on its own merits.

To Max M. When I first started worrying that the Virginia supremes might do this, my mind went here first, too: If they do it, pack the court. In fact, threaten court packing now, so that the justices think twice before they do something insanely partisan.

Then, when the ruling came down, I popped off on social media with the same argument: Pack the court. You lack the votes to impeach these justices, but you can dilute their power by relegating them to the minority. It turns out that’s not possible, because the Virginia constitution sets the bar for court expansion at three-fifths supermajorities in both houses of the legislature, and Virginia Democrats don’t have quite that many state senators.

This served as a useful if humbling reminder of the limits of my own knowledge. When Democrats in the U.S. Congress are under-utilizing their power, I can say so with a lot of confidence because I’ve covered Congress for about 20 years. I barely dabble in Virginia matters. But, it’s a bit beside the point, because others do have Virginia expertise, and they devised a workaround. There’s nothing magical about court packing that makes it preferable to court shrinking! The point is to take power away from bad actors. Age limiting them off the court works just fine for those purposes.

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Joseph Kay: Brian, would appreciate your thought on this thought.

The biggest mystery among us Democratic rank ‘n file, for decades now, is why Democratic leadership doesn’t fight. Our puzzlement rests on a mistaken belief that the Democratic party advances the interest of its voting base. Actually, each party advances the i