Let’s begin with the states; they are raring to go. Texas, for example, seems to regard Supreme Court decisions as mild suggestions. In 2021, its SB 8 abortion bill didn’t merely test the boundaries of Roe v. Wade but successfully negated it, even though the landmark 1973 ruling was affirmed by the Court as recently as 2016. The Court meekly allowed that bill to take effect. Months later, after the Court’s majority issued its opinion in Dobbs v. Jackson Women’s Health Organization and scrapped Roe, Texas Attorney General Ken Paxton invited state officials to begin prosecuting LGBTQ persons for “sodomy” and refusing same-sex marriage licenses (both forbidden by the Court). I am surely not the only one wondering what will happen if a federal court orders Governor Greg Abbott to remove the deadly pontoons he uses to block the Rio Grande.
I wonder how the political media will respond if Republicans revive the George Wallace/Andrew Jackson style of court opposition. Back in May, I observed that the rancid coverage of the debt ceiling crisis was emblematic of the asymmetrical way the media treats the two parties, where Republicans are “allowed to exert maximal power” to get what they want while Democrats are “forced into the role of helpmate, permitted to step up occasionally to buffer the GOP’s excesses but not to exert maximal power themselves.” It’s a fairly consistent pattern that puts Democrats in a bind while granting the GOP broad permission to test the limits of our norms and institutions.
So it’s not a great sign that The New York Times covered these goings on in Alabama with a piece headlined, “Alabama Lawmakers Decline to Create New Majority-Black Congressional District”—as if the court had merely offered a suggestion that could be opted out of instead of issuing a ruling. It is hard to believe that the same paper would have treated Biden as mildly if he had, say, refused to comply with the Supreme Court’s decision to scuttle his student loan relief plan. The political press seems overly vigilant about what Democrats might do in response to a wayward Supreme Court. (Even Epps is hard-pressed to deliver the examples of court defiance on the left that his piece promises.) During the last presidential campaign, they treated the mere notion that Biden might countenance court-packing as radical beyond words—this after largely treating the GOP’s refusal to grant Merrick Garland a hearing as the normal stuff of politics.
In any event, Democrats aren’t in any rush to impose those kinds of radical reforms on SCOTUS, and as TNR contributor Simon Lazarus explains, they have good reason: For the time being, the rhetorical and political campaigns they’ve waged against an unpopular court, coupled with some creative policy responses, have proven to be sufficient to mitigate some of the damage done. What’s more, liberals seem to be having an influence on the justices themselves: In Allen v. Milligan, Roberts was able to temper his previously well-documented hostility to the Voting Rights Act, which Lazarus chalks up to the fact that liberals have been highly effective politically of late, even as they’ve faced adversity from the court. Still, if that adversity ever gets to be too much, it will be worth remembering that the GOP has made it fair game to openly defy the court’s rulings.