THE SUPREME COURT SEEMS TO BE LEARNING FROM TRUMP THAT INCREMENTALISM IS FOR LOSERS

Rick Hasen notes that there was a time when the John Roberts Supreme Court seemed to be gutting the Voting Rights Act slowly:

In 2009 ... Roberts wrote an opinion in the Northwest Austin case that raised questions about Section 5’s continuing constitutionality but ultimately punted on the question.... it took another four years, and another round of redistricting after the 2010 census, for Roberts to lead the court in the Shelby County v. Holder case to strike down the existing preclearance regime. In that opinion, Roberts not only assured readers that things had changed in the South; he pointed to Section 2 as an alternative means of providing protection to minority voters on a national basis.

The Court "whittled away" at Section 2, Hasen says, for another decade, but he relied on it in a 2023 case:

Roberts and Justice Brett Kavanaugh then joined with the court’s liberals in the 2023 case Allen v. Milligan in holding that Alabama’s failure to draw a second Black opportunity congressional district violated Section 2.

But under similar circumstances in Louisiana v. Callais, Roberts and the rest of the Republicans on the Court have now made it impossible to use Section 2 to preserve Black voters' right to elect officeholders of their choice. And now the Court seems to be in a rush to implement this ruling:

First, the court agreed to issue its final judgment in Callais quickly, leapfrogging over the normal period when parties could seek Supreme Court rehearing. This ruling sent a signal that Louisiana had the green light to cancel its already ongoing primary election period and schedule a new House primary election using a map that eliminated a Black opportunity district. Then, in ongoing litigation out of Alabama, the court lifted a stay that was preventing the state from redrawing its congressional districts for the rest of the decade.

The Roberts Court played the long game with respect to the Voting Rights Act. Prior to that, it played the long game with respect to Roe v. Wade. Why?

I think the Court's Republicans believed that the most effective way to build their Republican utopia was to do it slowly, in ways that would escape detection by both normie voters and unimaginative journalists. Sure all those angry, bitter Democratic partisans would say that the Court is run by Republican hacks acting as unelected legislators in robes, but the vast majority of Americans wouldn't pay much attention.

But now the Court's Republicans seem to be rushing to implement their agenda. Why? Hasen has a few theories:

First, and most crassly, these decisions could have been motivated by partisanship.

Well, duh. Of course.

Second, even if not consciously biased in favor of Republicans, the conservative justices could be the victims of motivated reasoning: They see the risks of changing election rules at the last minute much more clearly when Republicans are hurt than when they are helped.

That's a charitable view. See theory #1.

Third, perhaps John Roberts sees the court as running out of time, and he wants to get many rulings in the books that change American politics in his preferred direction and forestall the move toward a multiracial democracy. He’s a 71-year-old chief justice now.... The Supreme Court’s rulings in cases ranging from abortion to presidential immunity to the power of the government to fight climate change are growing increasingly unpopular....

Roberts well knows that Democrats and progressives are mobilizing against the court.

"Running out of time"? Sure. John Roberts, Samuel Alito, and Clarence Thomas are all in their seventies. These are bucket-list projects for them.

Are they trying to nail down their agenda ahead of a backlash? Maybe. They might believe that Democrats are serious about Court expansion, age limits, or limiting the Court's jurisdiction. Democrats might be able to get some of this done if they win a 2028 trifecta. (I'll believe it when I see it.)

But I also think the Court's Republicans are looking at Donald Trump and thinking, Why the hell are we trying to sneak everything under the radar? The lesson the Roberts Court's majority and many other Republicans can learn from Trump is: Just do whatever you can get away with, while being perfectly frank about the baseness of your motives. You might get pushback, and there might be moments of public outrage, but you'll be able to get away with a lot, and quite a bit of it will be all but irreversible.

The Court's Republicans still aren't quite ready to openly acknowledge that they're doing what they're doing on behalf of their party, the way Trump does when he calls for gerrymandering or the SAVE Act or an end to mail voting, but they're learning from Trump that moving fast and aggressively allows you to break more things than playing the long game. And they're doing it.