Last week, I wrote about how the far right’s capture of governing institutions like the Supreme Court has put Democrats in the jackpot, forcing them to make some hard choices. Indeed, the decision laid before Democrats is one of the most famous choices ever laid out in the English language: whether ’tis nobler in the mind to suffer the slings and arrows of outrageous fortune, or to take up arms against a sea of troubles—and by opposing, end them. In a troubling sign for Democrats, Virginia Governor Abigail Spanberger has chosen the former.
At issue is the Virginia state Supreme Court’s decision to throw out the amended congressional district maps that voters just approved—in a referendum that cost the Democrats some $70 million, as they painstakingly played by all the rules to get it over the line. In the immediate aftermath of the ruling, Spanberger offered a limp proclamation, saying that she was “disappointed” by it but that her “focus as Governor will be on ensuring that all voters have the information necessary to make their voices heard this November.”
But it turns out that Spanberger was missing some vital information of her own: a lawful solution that could save the day and uphold the will of Virginia voters. As Quinn Yeargain at The Downballot reported, the state constitution includes a provision that allows lawmakers to change the mandatory retirement age of state Supreme Court justices. The idea Yeargain poses would be to lower the official retirement age to 54 by placing a modification in the annual budget bill that’s due by June 30, pass the legislation, and replace the hack justices—all of whom are older than 54—with seven new ones picked by Spanberger.
“Democrats might prefer other solutions,” Yeargain concluded, “but if they want to see the will of the voters respected in time for the November elections, there are virtually no other options—and none with as good a chance of success as this one.”
Spanberger isn’t going for it. In fairness, as Greg Sargent reported this week, Virginia Democrats like Senate Majority Leader Scott Surovell have cited some logistical impediments to the plan, namely a May 12 deadline to finalize the maps in time for early voting.
Yet, wherever the GOP holds the whip hand in the redistricting wars, they are sallying forth without either seeking the assent of voters or showing much concern for procedural deadlines—in some cases, like Louisiana, Republicans are changing the maps right in the middle of ongoing elections. Which makes Surovell’s diffident attitude especially risible: “Wiping out the entire Supreme Court is an incredibly extreme step to take over a decision you don’t like.” This is a hard thing to hear when Republicans are engineering—at warp speed—the wholesale extermination of Black political power in the South.
It’s unsustainable for our democracy to have one party that’s terrified of hypothetical blowback they might receive for violating a norm and one party vandalizing the Constitution with freedom and glee, knowing their political opponents will never force them to incur a similar cost. Democrats spend so much effort on mitigating the hypothetical radical step the right might take in the future that they’re failing to respond to the radical things they’re doing at this moment—to say nothing of the things they’re already speeding to do next. One of those things, by the way, is using the Callais decision to potentially eliminate majority-minority districts in blue states like California—or to potentially create a postelection coup in Congress.
Regardless of whether retiring the current Virginia Supreme Court would result in the electoral maps that voters approved, there are a number of good reasons why state Democrats should do it anyway. Do it because replacing the Supreme Court with one more aligned with Virginia voters will be a gift that keeps on giving. Do it because it will raise the salience of the GOP’s rush to undo civil rights gains. Do it because if the shoe were on the GOP’s foot, they would not hesitate to forcibly retire a Democratic-majority court. Do it because, as Brian Beutler writes, you cannot simply not “respond to an element of a Republican coup d’etat.”
But the biggest reason is that Democrats need to develop an appetite for the kind of hardball politics that the GOP plays. The enormity of the tasks in front of them—reversing a slew of U.S. Supreme Court decisions, rebuilding the federal government, putting Trump and his inner circle in jail—requires leaders who understand the dogmas of the quiet past are inadequate to the stormy present.
For all the grim news about the redistricting wars, the grimmer failures of Trumpism keep the prospects of winning elections in reach. We should remember that the GOP’s race to create new districts is a product of their failures and unpopularity. And who knows? For all their cracking and packing, Republicans may pay a price for making their own red districts more vulnerable should Trump’s daily misdeeds and the worsening economy touch off a wave election. But those voters—who include suburban moms at No Kings rallies calling for Nuremberg 2.0 and neighborhoods full of ordinary people who’ve put their lives on the line protecting each other from Trump’s ICE goons—will expect their elected officials to take up arms (figuratively!) against this sea of troubles the GOP has unleashed, and bring it to a swift end.
This article first appeared in Power Mad, a weekly TNR newsletter authored by deputy editor Jason Linkins. Sign up here.
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