The Supreme Court After The 2024 Election
What a difference a day can make.
On Tuesday morning, I woke up with some apprehension. No, not about the presidency, but about the judiciary. I was fearful that if Harris had prevailed, with majorities in both houses, the Supreme Court as we knew it would be gone. Through so-called judicial “reform,” the long-standing nine-member Court would either be expanded, or tiered through term limits. Who on the left would oppose it? While the former approach is clearly within Congress’s powers, the latter approach would be unconstitutional. Such a law would create a clash with the Court. And your guess is as good as mine about what would happen. Look how quickly the Mexican Supreme Court folded. There would also likely be expansion of lower court judges. When Steve Calabresi proposed this idea during the early Trump Administration, I vigorously opposed it. Thankfully, this idea never came to pass. But had Harris tried this approach, who on the left would oppose it? All we would hear would be noise about the Fifth Circuit, buttressed by a never-ending series of tweets, substacks, and podcasts. At that point, familiar debates about originalism and vacatur would become quite pointless. Much of my work in the field of constitutional law would amount to little. I do like teaching Property!
Tuesday was a very long day. I deliberately did not watch any cable news until about 8:00 ET when polls started to close on the east coast. With my many monitors, I was simultaneously watching CNN, FOX, MSNBC, CBS News, and keeping an eye on the NY Times “needle.” Every few moments I would turn the volume on from a different channel. As the evening wore on, the Fox correspondents started to smile more while the MSNBC correspondents started to look more dour. By midnight, it became pretty clear that Trump would prevail. I stayed up till about 3:00 in the morning after President Elect Trump’s victory speech.
As I watched that speech, my concerns for the judiciary evanesced–for at least four more years. I don’t pretend for a moment that efforts to destroy the Court have magically vanished. They will simply lie in wait until power is reclaimed. Indeed, the foundation for Court “reform” will continue, unabated, over the next four years. There will be a never-ending series of tweets, substacks, and podcasts about the “illegitimate” Court and the “corrupted” Justices. Make no mist
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