John Roberts, Roger Taney, And The Unbearable Weight Of Desperation

Donald Trump’s corruption, the way he stuffs his pockets as the country rots, gives rise to a weighty political paradox.

It is, on the one hand, a gift to his opposition, particularly as Democrats reawaken to the reality that voters hate corruption. Nearly every American is worse off for it. And most of us are incensed.

But it is also a source of volatility, fuel for further attempts to overturn elections. Suddenly Trump has everything to lose by losing, and nothing to lose by attempting another coup. He’s too pig to fail, you might say.

And so while his corruption will make it easier for Democrats to sweep the midterm elections, it will also make him more determined to steal back their victories. That’s why the past month’s news read the way it did: A slush fund to buy a second insurrection. An election-denying prosecutor in North Carolina named Dan Bishop who’s up to god knows what. A promotion for the acting attorney general who’s promised Trump total loyalty. A new interim spy chief, chosen for his willingness to mine confidential government documents seeking dirt on Trump’s enemies. All while Trump increases the pace of looting, and abandons any pretense of trying to win the old-fashioned way.

The really alarming thing, though, is how Republicans at key hinge points seem willing or eager to go along with him. His allies in state legislatures helped national Republicans steal perhaps five to 10 House seats through mid-Census gerrymandering. They were given a leg up by Republicans on the Virginia Supreme Court, which summarily voided a voter-approved pro-Democrat gerrymander, and by Republicans on the U.S. Supreme Court, who allowed southern Republican legislatures to redraw congressional maps in the middle of primary elections, creating new Republican seats just in time for the midterms.

Democrats have noticed. How could they not? Their countercoup strategy is to make do with what they have on their side: people, and the law as written. Run up the score enough to make overturning the election logistically difficult. Beat back bad-faith challenges to Democratic victories and other rule-breaking efforts to steal seats.

Part one of that is clearly achievable.

But part two depends on…maybe more of a prayer than an assumption. It’s true that when Trump tried to steal the 2020 election, the courts held. They rebuffed Trump’s efforts across the country. And as of today, at least, the composition of the courts isn’t much different than it was six years ago. Presumably the judiciary will do the right thing again, yes?

In other words, maybe the Republicans on the Virginia and U.S. Supreme Courts weren’t interfering in the midterms on Trump’s behalf. Maybe they were just applying the law as they understand it. Ask them and they’d say: It isn’t the judiciary’s job to tell state legislatures how to conduct their affairs; and it isn’t the Supreme Court’s job to step in and create fairness when state legislatures won’t.

It’s just a total coincidence these doctrines exist the way they do, and happen to advantage Republicans going both ways.

We can’t know what’s in anyone’s heart (though we do know what some of them say when they think no one’s listening). But I believe it’s folly to assume Republican judges will once again refuse to play ball with Trump—and, ironically, it’s for the same basic reason that Trump can’t abide defeat: They, too, have everything to lose by losing, and nothing to lose by helping Trump complete his coup. In the winter of 2020, their interests diverged, or at least seemed divergent. Today, they are completely aligned.

This analysis doesn’t just apply to Clarence Thomas and Samuel Alito, who are all but unrepentant insurrectionists, and venally corrupt as well. They may fear personal accountability, and they certainly don’t want Democrats making policy. But they mostly just view themselves as soldiers in God’s war against the Constitution. They’re ready to have it out.

It’s the others who have every reason to abandon the prudence they mustered in 2020.

A lot has changed since then. When they declined Trump’s last legal challenge to his defeat, they likely imagined that the last great threat to the Roberts Court revolution was gone. Trump would give way to Joe Biden and fade into irrelevance; Democrats would let bygones be bygones; and the right-wing scaffolding the justices had built would remain intact for a less off-putting GOP standard bearer to exploit.

But then Trump mounted a comeback. He reclaimed control of the party, and gave the Republican justices a choice: you’re with me or you’re with the Democrats. They didn’t hesitate to pick a side. They went out of their way to protect Trump from political and criminal accountability for the January 6 insurrection. Then when Trump returned to power, they used their shadow docket to advance his interests by fiat, without explaining themselves to the public. And that was before their ruling in Callais, which transformed the Voting Rights Act from a statute that prohibited gerrymanders intended to disenfranchise black voters into a doctrine meant to encourage anti-black gerrymanders and forbid pro-minority gerrymanders.