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I want to share with you a letter from fellow TPM Reader DA. He makes a point I fully agree with but didn’t make clear enough in yesterday’s post. I fully agree there is such a thing as legal expertise. I’ve made that clear in my actions over a couple decades by paying for some of the very best (and priciest) legal counsel — mostly though not exclusively on 1st Amendment and libel law. It of course goes beyond this. Law, in its largest scope, is a complex set of rules and practices that we as a society have agreed on — sometimes explicitly, usually implicitly — to govern ourselves by and through which we resolve the countless range of disputes — civil and criminal — that arise among us. But it is in the nature of any specialized and professionalized craft to cast a penumbra of authority beyond its actual area of expertise.

From an Anonymous TPM Reader …

Apologies for the extremely lengthy response, but your post today hit upon a perennial hobby horse of mine!

It strikes me that in addition to their own self-image, law professors (and elite lawyers generally) aren’t able to be honest brokers in discussions about court reform because of the enormous quid pro quo and tight knit social ties created by judicial clerkships.  The number of students that obtain clerkships plays a big role in law school rankings. Partly as a result of this, having clerked at least for a circuit clerk is now seen as a de facto requirement to be hired as a law professor, barring a PhD in another field (and even then, most still clerk).  Professors who clerk help place students with their judges and so on and so forth.  There is an *enormous* professional taboo against quitting a clerkship or criticizing the judge that you worked for no matter how bad the experience.  It’s viewed as professional suicide, some law schools will effectively ice you out of their career services as you do it, and certain firms will effectively be closed to you for the entirety of your career.  Conversely, stay close with your judge and you can expect them to be a letter of rec and introduction-maker for life. All of this adds up to elite law school faculty and elite lawyers having a sizeable material professional and social stake in revering judges, in addition to their psychological investment in feeling learned.

If you’re not a regular listener to our podcast, I hope you’ll listen to the episode that will come out later this afternoon. It was, I think, a particularly good episode, in large part because we had such critical issues to discuss: Callais, the wave of emergency redistrictings across the southern tier of the old Confederacy and what seems to be a sea-change moment on Supreme Court reform among establishment Democrats. I want to expand today on some points about Supreme Court reform, offering some of the historical background for this present moment.

Every current member of the Supreme Court comes out of what we might call the elite academic-judicial nexus, which is to say they’ve been law professors at elite universities and judges in the federal judiciary. I believe this applies to all the current justices. It didn’t used to be this way. It used to be relatively common to have justices who had never served as judges before and had never been law professors. Frequently they were ex-politicians. Famously, William Howard Taft was an ex-president when he became chief justice. Earl Warren was a popular Republican governor of California who had never served as a judge until president Eisenhower nominated him as chief justice. If you go further back, many justices never even went to law school, though this was more a matter of the evolution of legal education. The last non-law school justice was James F. Byrnes. (In earlier history, you generally learned the law as a kind of apprentice and then passed the bar to practice.) There was a brief boomlet of chatter when Bill Clinton was elected that he should or would try to re-inject this “politician on the Court” tradition back into the system. Of course that didn’t happen. The idea has scarcely been entertained since.

In the Southeast right now, we are seeing a no-holds-barred push to obliterate Black electoral power following the decimation of a law for which generations of activists marched and sometimes died. In service of this goal, state officials are going so far as to cancel elections in which voters have already cast ballots.

Yet many news outlets are talking about what’s happening using terms like “political gamesmanship,” noting white Republicans “looking for every advantage.” These terms were already a stretch for describing the mid-decade gerrymandering blitz pre-Callais. They are wildly inapplicable now.

There’s a frog-in-boiling-water quality to it. Its a mode of coverage unmoored from national and global history, which we ignore at our peril.

A bright spot for Democrats, as Republicans’ scramble to gerrymander the old confederacy plows forward: Over in Nebraska, the path is cleared for an independent who supports things like strengthening the social safety net and taking on corporate power.

“We are the most gerrymandered Republican state in the country already,” said South Carolina Sen. Majority Leader Shane Massey (R), announcing his opposition to a new post-Callais redistricting effort which went down to defeat, for now, a short time later. Massey made both political and moral arguments against the move. We shouldn’t underestimate the political motivation. Democrat Joe Cunningham won the 1st district in the wave election of 2018. Nancy Mace defeated him by less than a single percentage point two years later. Her district then had to be significantly fortified with Republican voters to help her keep her seat. Point being, there are a lot of Democratic voters in Jim Clyburn’s 6th district. Spread them out into neighboring districts and you’ve spread the gerrymander so tight it can just snap. And those snaps happen in wave elections.

Some of the most consequential and trust-shattering Supreme Court decisions of late have been ones that could have been predicted decades ago. Certainly that’s the case with the Dobbs decision. Callais doesn’t have quite as long a history, in terms of attempts to overturn the precedent. But certainly it’s been in the cards for at least a decade. Still, it’s some of the smaller decisions that tell us just who and what this corrupt court is. Kate Riga notes one of them here: Conservatives on the Supreme Court have previously invoked the “Purcell principle” to rule that a change couldn’t be made to districts on the “eve” of an election. Now it’s fine to do so in states like Louisiana and Alabama where primary elections are actually already underway and tens of thousands of cast ballots must be invalidated.

The message is simple: there are no rules. Only power. It reminds me of my hand tool woodworking shop. There are a big selection of tools. And it’s just a matter of what helps the GOP and the Court in that particular moment. In a way it’s clarifying. Even helpful.

Independent media can feel like an isolating place. Most of us operate as individuals or in small newsrooms with limited resources, throwing spaghetti at the wall to try to reach new audiences and get our stories in front of people in an ever-more-consolidated media environment.

But we’re in this together, as celebrated historian and writer Heather Cox Richardson reminded us in a generous live interview with TPM’s Kate Riga and Josh Marshall this afternoon. 

HCR had Josh and Kate on to talk about what it’s like to report on today’s frenetic politics; the founding and future of TPM; and what independent media will look like in the years to come.

Kate Riga has a good summary of the stakes Democrats currently face in Virginia. There’s a way to reverse the state Supreme Court’s decision tossing out the majority statewide vote supporting the new Dem-friendly districts. It involves intense political hardball. But it’s the same kind of political hardball Democrats will need to embrace at the national level in 2028-29 with a trifecta if there’s any hope on turning the tide against Trumpism. So Virginia will give us some view into what kinds of fights Democrats are ready for.