The call is coming from inside the house.
The Supreme Court’s decision in Louisiana v. Callais has made progressives even more determined to delegitimize the Supreme Court, and Justice Ketanji Brown Jackson is among them.
In a dissent involving a post-decision procedural question, Jackson accused the majority of acting out of pure partisanship. Her opinion said that the court “unshackles itself” from all constraint and “dives into the fray” (meaning the partisan fray). In its jurisprudence, “principles give way to power.” It is acting with an “abandon” that is “unwarranted and unwise.”
These charges occasioned a stinging and well-deserved rebuttal from Justice Samuel Alito, but, merits aside, the tenor and substance of the Jackson dissent capture the mindset of a Left that is increasingly determined to destroy the Supreme Court in order to save it.
The technical matter under dispute was whether the court would wait 32 days to finalize its decision in Louisiana v. Callais. This is the usual practice “unless the court or a justice shortens or extends the time.”
The winning side in the case asked to get the decision finalized quickly, because time is of the essence. With the state’s scheduled May 16 primaries approaching (they’ve now been delayed), Louisiana wants to redraw its maps in keeping with the court’s decision.
Jackson’s dissent quotes a 2019 decision of the court in Rucho v. Common Cause for the proposition that courts should not “risk assuming political … responsibility for a (partisan map-drawing) process that often produces ill will and distrust.”
But this was a warning against courts involving themselves in minute questions of partisan gerrymandering. Here, the court has set out a bright-line principle that district lines can’t be race-based, but otherwise said that the political authorities are welcome to gerrymander or not.
Jackson also slaps the court for creating “chaos in the State of Louisiana.” This is rich given the history.
When Louisiana created a congressional map after the 2020 census with just one majority-minority district, it got sued for not sufficiently taking race into account; a judge ordered it to make a second minority district. When Louisiana complied by manufacturing a monstrosity of a district to scoop up black voters, it got sued again — this time, for taking race too much into account — and the case made it to the Supreme Court.
It certainly would have been much better if this case had been decided sooner, but Alito drops a suggestive footnote in his rejoinder to Jackson. He notes that the constitutional question was “argued and conferenced nearly seven months ago.” This implies that the case was effectively decided right after oral arguments in October, and that the dissenters slow-walked it.
Now, Jackson wants more delay — it serves the partisan interests of Democrats to preserve unconstitutional race-based congressional districts as long as possible.
The reaction to Louisiana v. Callais has been so incandescent on the Left because it believes that unless black voters have black representatives they are disenfranchised. But this is not how representative democracy works. Were white voters in Georgia disenfranchised in the 2022 Senate race when two black candidates ran against each other?
All indications are that a commitment to court-packing will be orthodoxy among 2028 Democratic presidential candidates. They will seek to make the highly isolated and wholly unpersuasive Justice Jackson part of a new court majority imposed by political fiat.
Rich Lowry is on X
@RichLowry.
