The Supreme Court Is Broken (Neon Liberalism #79, with Madiba Dennie)

The Supreme Court has never occupied a more central place in American governance. Republican dominance on that court has enabled them to push through much of their agenda without going through Congress: overturning Roe, repealing the Voting Rights Act, and more. Join Samantha Hancox-Li and Madiba Dennie, Deputy Editor and Senior Contributor at Balls and Strikes, and author of The Originalism Trap, as they discuss the rise of the conservative legal movement and what we can do about it.

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Transcript

**Samantha Hancox-Li [00:00:00]**
So welcome back to Neon Liberalism. I'm Samantha Hancox-Li. For most of my life, the Supreme Court has been getting more and more central to American politics and American governance, as it's increased in power and has intervened in national matters — from the extremely contentious election between Bush and Gore back in 2000, to abortion rights with the Dobbs ruling, and now with the Callais ruling. Functionally — I'm going to put it out there — overturning the Voting Rights Act.

And so to try and understand what this means, and how we got here, and maybe where we're going, I am very excited to welcome Madiba K. Dennie onto the podcast. Madiba is the author of *The Originalism Trap*, which you can see beautifully displayed right there — senior editor and deputy contributor at Balls and Strikes. So, did I get that backwards? I — okay. Well, anyways, Madiba, thank you so much for coming on the podcast.

So I guess, general question, just to start off with: what's the state of the Supreme Court in America today? Where are we at on the Supreme Court?

**Madiba K. Dennie [00:01:20]**
A backwards deputy editor and senior contributor, yeah. Thank you for having me. I would say real bad is a real bad — an acceptable answer. Yeah, it's rough out here.

So you kicked us off, you know, with talking about how the Supreme Court basically is not new to this, right? It has a long track record of undermining democracy, like putting a thumb on the scales, and inconsistently in one direction — the direction that favors white wealthy minorities, that favors the Republican Party, that helps concentrate power for the people who have always had it and take away power from the people who have had to fight for it. And so Callais is like the latest iteration of that, but an extremely egregious version, in that it is just basically making a mockery of the Voting Rights Act and of the Constitution. Because the Constitution does give Congress the power to enact legislation to prohibit racial discrimination in voting. So it's not just the Voting Rights Act that the court has to mess with when it is taking away the franchise from people — it's really undermining the Constitution itself as well.

**Samantha Hancox-Li [00:01:20]**
Yeah, I think that's really interesting — that in order to pursue this project, they can't just rule on these specific issues, but they have to acquire more power for themselves, and, like you say, undermine the Constitution. But before I ask you more about that, do you want to walk us through: what is the Callais decision? What did it actually do? What's your evaluation of it?

**Madiba K. Dennie [00:01:20]**
Yeah, so Callais is a really quirky procedural case, because the court actually heard oral argument in Callais last term, and they opted not to rule on it — because it seemed pretty clear that the law as it existed at that time was not the outcome they wanted. So they were like, "Oof, if we apply the law in this case, you know, we don't like that — it's gonna protect voting rights for people of color." So, "How about we punt for now and schedule this case for re-argument next term?" So that's what we're dealing with now, and with a new question.

The question that the court was supposed to answer the first time was basically: is this map — does it comply with the Voting Rights Act? Because a state had done a racial gerrymander, the court struck it down, finding that it was a racial gerrymander. They made a new district to remedy that, that actually gave the state's black population the structural capacity to elect the candidate of their choice — it gave them the equal opportunity to which they're entitled under law. But then they got sued again — a group of non-black voters challenged the map, saying, "Whoa, whoa, whoa, that's actually the real racial gerrymander, because you're taking race into account to fix what has already been acknowledged was a racial gerrymander." So, "saying you can't think about race to solve racism, that's illegal," is what these guys are saying. And under decades of court precedent, that was very obviously a bogus argument.

But precedent doesn't matter when you have a supermajority on the court that's committed ideologically to furthering this far-right agenda. So instead of just applying the law and saying, "No, obviously this is okay," the court posed a new question, basically saying, "Are these sorts of remedies, where you are taking race into account to fix a racial gerrymander — is that compatible with the Constitution?" And the court's answer — which was, again, the reason why they asked the question in the first place — their answer was basically no. I'm saying "basically" no, because if you look at the opinion, Alito will be like, "Oh, yeah, yeah, that's fine, as long as you complete this checklist" — that's impossible to fulfill. So for all intents and purposes, there's nothing you can do about a racial gerrymander.

The opinion also makes it easier for states to get away with racial gerrymandering in a range of ways. One is that their opinion instructs courts to be extremely deferential to states — to say that as long as states say they're gerrymandering for partisan reasons instead of racial reasons, that's okay. The fact that racial and political polarization exists — don't worry about it.

**Madiba K. Dennie [00:07:14]**
We are ignoring that this Venn diagram is a circle, and we're saying it's okay for you to gerrymander on partisan bases rather than racial bases, even though the result is going to be the same, since black voters overwhelmingly vote for Democrats. Sorry, please go ahead.

**Samantha Hancox-Li [00:01:20]**
No, no — I mean, I was also struck by that checklist that you mentioned. If I recall correctly, there's like an order that they issue after Callais, or something — you can maybe correct me if I'm getting my details mixed up. Where basically they say, "Well, now actually, look — if you're suing to say my state is racially discriminating against me, they've done a racial gerrymander, I can't elect candidates — you, as the plaintiff, you have to come at them not just with proof that they did racial gerrymandering, but with an alternative map that satisfies every possible legitimate purpose that the legislature might have had in making that map — even though they did, in fact, have racial animus in their hearts when they did it."

**Madiba K. Dennie [00:07:14]**
Which is absurd, right? Basically saying, "You know this legislature did something unlawful, and it's now up to you, voter, to provide them with a way that equally satisfies all of the things they were trying to do unlawfully, but still produces that same outcome." So it's like, okay — even if we accept the idea that you were discriminated against on the basis of race, now you need to say, "Okay, well, they can still suppress my vote in this non-racial way, so that's the solution for you." Which — that doesn't help these voters at all, right? It's beyond an empty gesture. It's really just sort of an insult. It's just taking away the tools of the political process that are supposed to be open to these voters under law. And like the way democracy is supposed to work, the voters are supposed to pick their electeds, not the other way around — but the court is basically telling these voters to go screw themselves.

**Samantha Hancox-Li [00:01:20]**
Yeah, I think that part is really striking. Where the court will make these — they say, "Well, this isn't a justiciable question, right? The courts shouldn't be involving themselves in these questions. The legislatures are the right place to sort out questions of how do you do districting." But then — as we, I think, have seen, and maybe we can talk a little bit more about this — it really feels these days like lines on maps vote, and people don't, right?

If you're in a situation where it's like, "Yeah, we, as the legislature, we can redraw this state to be a five-four Democratic state, or we can redraw it to be a seven-to-two Republican state" — which seems a little like something has gone wrong, right? If you can change the outcome of representation in an election that much, without actually changing who voted or who they voted for, but by just redrawing the lines — that you can effectively control the real political power, just seems a little mad to me.

**Madiba K. Dennie [00:10:38]**
Strategic line-drawing, yeah. And it's counter to the actual purpose of why we hold elections, why we do redistricting. The ostensible purpose of redistricting was supposed to happen on a decennial basis, after the decennial census, to make sure that districts are still representative — that they're accounting for any population shifts. You know, say a lot of people have moved around in the past 10 years, or a lot of people were born in one area, or died in another. And so now, if we want to make sure that we are still keeping communities of interest together, and that we're still drawing districts in a way that it's like the same amount of people, more or less, in each district — then you need to go back and redraw them. So that's the purpose that drawing these district maps is supposed to serve.

But what we're seeing is this being totally untethered from that purpose, and being sort of taken advantage of, and manipulated, in order to boost partisan power. So completely detached from actually enabling voters to have free and fair elections, to represent the candidates of their choice, and have a fair process that actually seems correlated to the people who live there and their interests and what they want. Yeah, so it's completely untethered from that now.

**Samantha Hancox-Li [00:01:20]**
Yeah, and I wonder if you can talk a little bit about — I mean, since the Callais decision, it seems like there's been a total wave of partisan gerrymandering that's just been unleashed across America, both in Republican and Democratic states. Where are we at on that? How's that going?

**Madiba K. Dennie [00:10:38]**
Yeah, it's kind of funny — not "ha ha" funny, but just like "oh dear" funny — when you look at the evolution of the court's jurisprudence over time. Because, like you mentioned, the court saying some of these are non-justiciable, saying these are political questions: when the court had said that first, a few years ago, they were kind of a little mealy-mouthed about it. They're like, "You know, gerrymandering — partisan gerrymandering — not great, but that's not something for us to deal with, that's, you know, it is what it is." But now they seem to be doing this full-throated defense of partisan gerrymandering — like it is a legislature's right to make sure that they can maximize their political power. And, yeah, just less and less interested in concealing what they were up to. It's a whole mess.

**Samantha Hancox-Li [00:01:20]**
Okay, so I guess, to me, at this point I have to ask: how did we get here? How did we get into a situation where the Supreme Court is able to functionally overrule the Voting Rights Act — which seems kind of nuts, right? That, like you said, this is authorized by the Constitution. There are very clear amendments that were put in place for this specific reason, that give Congress very broad powers to regulate equal rights in America, and they passed legislation to that effect.

**Samantha Hancox-Li [00:14:29]**
And now the court's like, "You know, whatever." How did we get here such that the court is so powerful in deciding the shape of American democracy?

**Madiba K. Dennie [00:14:37]**
Yeah, right. Well, that's completely bound up with the rise of the conservative legal movement — with this new (I shouldn't say new, I guess) force behind this ideology. Like, same old reactionary ideology, but now with better resources, and now with strategic planning, like really long-term vision of putting people in the right places — whether they are on the courts themselves, or in state attorneys general offices, or in the Department of Justice — just really building up the infrastructure over time to put forth different versions of what the law should look like, and of what the courts' power over that law should be.

And this is also inseparable from the resistance and backlash to the successes of the civil rights era. You know, getting the Voting Rights Act in the first place — there are some segments of the country where that never sit right, and some of those people are now on the Supreme Court. If you look back at memos within the DOJ, back when John Roberts and Sam Alito were young government attorneys, they have been fighting against the Voting Rights Act since then. They are charting out, in these memos, their views about how Voting Rights Act violations should not be too easy to prove, and how it is offensive to legislatures, and how legislatures should be able to pursue these goals unless there's really explicit proof of racial motivations and animus. Basically trying to say that remedying racism is itself racism, because you're taking race into account — like the actual problem for them is not subordination on racial grounds, but just the sheer, or rather the mere, mention of race.

So these are things that they have been building up in the conservative legal movement, in their networks, in the Federalist Society, in Ronald Reagan's DOJ and onward — just building this whole ecosystem of "these are what our legitimate ideas are, and here's where we should have people to push on these ideas." And it's now sort of all coming to a head, where these people have so thoroughly captured the judicial system that they can really go for those final kill shots, after they've been chipping away at things for years. Because, again, Callais didn't come out of nowhere — we've had multiple decisions shrinking the Voting Rights Act, and making it more challenging for people who are trying to enforce and protect their rights, but now they have the freedom to go even harder, is what we're really seeing.

And I think, at the same time, another important part is this retreat of Congress. So both the court going hard, claiming more and more power for itself, and Congress giving up more and more power. Because there have been plenty of times in history — even recent-ish history, like say the '80s — where the court made a bad ruling, and Congress said, "Nope, that is not what we meant," and passed a new law.

**Madiba K. Dennie [00:18:52]**
They did that, in fact, with the Voting Rights Act amendment that the court just gutted. Because the court had previously had this ruling saying, "Oh, you need really clear evidence of intent," and then Congress revised the Voting Rights Act and said, "No, you don't — we are more concerned about the impact, and whether there are discriminatory effects, because we don't necessarily know what's in somebody's heart, and also, does that really matter so much, if the result is the same?" So that's what Congress said very explicitly. And now you have the Supreme Court saying otherwise, because it feels that it can — that it has seized this much power for itself — and it feels that Congress is not actually going to do something about it, not going to make some responsive legislation. And even if they were to do so again, the court has claimed so much power for itself that it would say, "Well, that's wrong too — you didn't actually interpret that provision correctly, or you didn't actually have the power to do this."

So there's this real underlying problem here — some overlapping problems. You have the disinterest in actually protecting and fighting for the rights of voters, but also the court sort of claiming a monopoly over the Constitution, over who gets to decide what it means — disregarding Congress's power. The Constitution says Congress can enforce this prohibition on racial discrimination in voting by appropriate legislation — that's pretty broad. But the court says, "Actually, your legislation is only appropriate if it does this, that, and the other that Sam Alito says." Which is not actually what the Constitution says, nor should it be — but the court feels empowered to make these kinds of decisions, and it's going to continue to feel like it has the power to do this, unless it is reminded that it does not.

**Samantha Hancox-Li [00:14:29]**
It would have been politically different, right? Which I think is interesting. As longtime readers of Liberal Currents — or listeners to Neon Liberalism — I'm really interested in power, right? Policy matters. We can talk about this or that chess move on the board, but I'm interested in power, and how you get it, and how you lose it. And I think the story of the conservative legal movement is really interesting for that reason.

Maybe you can correct me — I'm going to tell a story, and you can tell me if I get it all wrong. But if you ask somebody from the conservative legal movement, "Where do you come from?", they'll say, "We're a reaction to Roe versus Wade. It's this national legalization of abortion that's done through the courts, this invented right to privacy that's legislating from the bench, and we are a movement trying to get back to the original principles of the Constitution — not having judges run the country according to what they think, but getting back to the Constitution itself."

I think there's a part of that history that's made up, and the part that's especially made up is Roe versus Wade — because what they're really reacting to is Brown versus Board of Education. What they are really reacting to is Brown, and several other court cases around the same time that basically say, "Yes, Jim Crow is in fact illegal according to the 14th Amendment," in a very direct way. And that's where the conservative legal movement gets started.

It's one thing to be mad about something; it's another to do something about it — and they did something about it. And this is what I mean is really interesting, because when they get started, they feel like they're out in the wilderness. They feel like there's this enormous liberal legal establishment that has all power in the academy, all power on the court, and they're like the rebels against this system. And I think they have a point, in a way — that they aren't in power on the court when they get started, they are living in a legal regime that they don't like very much. And their response is to form these institutions, especially the Federalist Society, which is kind of like a social networking club — I don't exactly know how else to put it.

**Madiba K. Dennie [00:23:44]**
Yeah, they like to say they're like a debate club — like, "Oh, we're just here to talk about ideas." But really it's a great way, if you are a young ambitious law student and you might want to be a judge someday, that's where you go. You rub the right shoulders, and you get the homie hookup to get the fast-tracked clerkships, and to put you in the right places to just sort of groom you for more power over the courts.

**Samantha Hancox-Li [00:14:29]**
Yeah, that's right — it's very much a pipeline from law school to clerks to the right kind of social networking to a judgeship, right? That we've seen over time, like, "Does the Federalist Society recommend you?" — just become kind of how the Republican Party chooses its judicial nominations.

**Madiba K. Dennie [00:24:37]**
And there's no equivalent to that on the left — or it's just like, "You have the stamp of approval from Liberal Currents, you can go on the court." We'll get there. Yeah, just a little bit.

**Samantha Hancox-Li [00:14:29]**
Someday — we're working on it. One of these days. We just need 50 years and a lot of money. The conservative legal movement, you know, they don't win it in a day, right? They build this up over a long period of time, and they do it in part by having, at least superficially, a coherent story — this originalist story about what went wrong and how they're going to fix it. And I can see you've got a book right behind you that I think might be relevant to this, so — maybe just a little bit.

**Samantha Hancox-Li [00:25:29]**
So one way to pose this question for me is: how do you start with this story of "we just want to interpret the Constitution, we don't want to legislate from the bench, we don't want judges deciding what national policy is" — to this situation of, like, clearly they're legislating from the bench, they're trying to set national policy, and they're doing it in a way where it's just like, "You're just making stuff up." Like, we can all just tell you're just making stuff up, you're not adhering to the Constitution. How does originalism get turned inside out in that way?

**Madiba K. Dennie [00:26:06]**
Right, I mean, I think the most straightforward answer is that they never really meant it. Like, their primary preoccupation was always the results — of what the court was doing, not actually how the court got there. And originalism was just sort of this convenient slogan, this way of packaging a different model that would get them to the outcomes they wanted. They chose this method in order to get the results that they wanted. Because the originalist idea is saying that the meaning of the Constitution is fixed in time, it is frozen at the moment of enactment, and we have to understand the Constitution the same way it was purportedly understood way back when. Otherwise, it's just judges doing their own thing — just, you know, YOLO — "We need a way to cabin judges' discretion." And they sort of stop there. They don't say "limit their discretion from doing what" — what is it actually that was the problem that they were doing?

And then you look at decisions in things like desegregation, things like abortion rights, things like labor rights — these are the problems that the conservative legal movement was having. And they figured that a good, objective, neutral-sounding way to push back against that was by saying, "Well, that's not what the founding fathers ever intended. This is out of line with what they said, and so there's something wrong with it."

And this is very transparent, right? Like, literally right after Brown v. Board, we get the Declaration of Constitutional Principles from all of the Southern Congress members — a document that's more commonly known as the Southern Manifesto, in which they heap a bunch of jeebies. And in this they straight up say that the court's decision in Brown v. Board is invalid because it is at odds with what the founders said. They said that the drafters of the Constitution did not intend for it to prohibit states from having segregated schools, and so the decision is wrong. And so they are very deliberately making this makeshift historical standard, so that they can harm historically marginalized communities. They want to really buttress and shore up the historical power dynamics. And so they're saying our understanding of law and constitutional interpretation has to be completely tied to that history.

If they were just saying history should be a factor, that's fine — that's something that courts have done for a long time, to say it could be useful. But just deciding that it is the end-all, be-all, that we have to make decisions in this way — and they're sort of presuming that there ever was one true historical meaning, and that they could find it if it existed, and that it would be worth using if it existed. And none of these are really reasonable presumptions to make.

So we see it allows them — originalism allows them — to claim this sort of mantle of neutrality, while really the bias is already baked in. And even within the method itself, there are all sorts of little tricks you can use to achieve your desired outcome, like saying, "Oh no, this history doesn't count because of reasons," or "this is the only history that matters."

**Madiba K. Dennie [00:30:44]**
We saw a really particularly ridiculous version of that in Bruen — the decision really expanding gun rights — where Clarence Thomas is literally like, "That history doesn't count because it's too early; that history doesn't count because it's too late; that history was actually at the same time, but it was an outlier, so it doesn't count." So just chipping away at everything until you're left with only the neat little slice of history that does exactly what you wanted to do in the first place. And presenting this as some really legit, totally objective model. And it's just demonstrably untrue — but very good branding.

**Samantha Hancox-Li [00:25:29]**
It sounds great. Every time I hear "the Southern Manifesto," I'm like, "That's probably not going to be good."

Yeah — if you were just calling the balls and the strikes, right, if you were just carefully interpreting the Constitution — this is really just a question about the Administrative Procedures Act, right, and whether it's been correctly followed or not. But he sees himself as not just adjudicating these technical legal questions, but trying to settle a contentious political issue about abortion, trying to impose a — great branding, clearly. Clearly the branding has worked pretty well.

And, like, my background is in analytic philosophy, of all things — and if you told an analytic philosopher, "Oh yeah, here's a text from 200 years ago, and it's possible to discern an exact meaning of that text that will cover every possible contingency in the entire space of the future, and the text itself is something like, 'Well, there's no cruel and unusual punishment'" — analytic philosophers would be like, "The theory of language that you were describing was discredited 70 years ago." It just doesn't work on a philosophical level, like you say. And when they go to apply it, it's so frequently kind of a mess — where they can't even be bothered to do history well. And I want to talk about — yeah, because the history was never really the point.

There was a recent dissent in a stay by Sam Alito that I'm going to talk about, because I think it's really interesting and kind of revealing of how they see themselves. They do their big ruling, Dobbs, which functionally overturns Roe v. Wade. Many states proceed to start banning abortion again. Louisiana is one of these states — Louisiana bans abortion around the similar time. There's a global pandemic on, and the FDA starts changing some rules about telemedicine to make it so that people don't have to come into their doctors' offices, because they don't want to die drowning in their own lungs, right? And one of the effects of this is that you can get a video visit with a doctor, and they can prescribe you abortion medication, and then mail it to you — mifepristone. And mifepristone is extremely effective, and it's extremely safe. You can just get it mailed to you and take it, and you will have a completely safe abortion.

So, kind of unsurprisingly, people in Louisiana who want abortions start getting video calls with doctors in New York who will mail them this medication. Louisiana is super mad about this. Louisiana sues the federal government, saying that the FDA decision that made this telemedicine legal was wrongly decided according to the Administrative Procedures Act. And the companies that make the drugs have some counterclaim saying, "Well, you can't stop us from selling them, because we would be harmed — you have to let the case proceed through the courts," blah blah blah. And Alito says, "I hate you all, because this is clearly a scheme to undermine our ruling in Dobbs."

And that's what I'm really hung up on — because if you were just settling a national political policy about this question, to say, "Yes, states can ban abortion" — and not just that, but they are entitled to as much cooperation as they want from other states in banning abortion. Do you have anything to say on this?

**Madiba K. Dennie [00:34:42]**
Yes, right — that is such a critical point. It's definitely been on my mind as well. Because, yeah, they pretended in Dobbs that this was just about giving it back to the states, that this was going to be states' rights, like state legislatures get to do their own thing. And so some state legislatures did do their own thing, and their thing was not Sam Alito's thing — their thing was protecting doctors and their patients. And now Sam is furious — Sam's big mad — and he's saying that Louisiana should be able to prosecute those people but for this scheme. And so it's like, "I'm sorry, I thought those states had rights. I thought that states were able to enact legislation according to their own needs, and the needs of their citizens, including the doctors who work in that state."

And it is really revealing. It so mirrors the kind of historical conflict we saw with the Fugitive Slave Act, where southern states — that had a lot of, where a lot of slaves were held (I won't say it was all, because there were people held in slavery in northern states too, but in particular southern states that had much bigger slave populations) — they didn't just want to have their slaves, they wanted to be able to get those slaves back when they ran away to the north, and they wanted to prosecute people who helped slaves get to freedom. And they were like, "This is an outrage. This is undercutting our rights as states. We need the federal government's help. We need them to enforce our rights as states by making sure that we can get our human property back."

So this is this very similar kind of fight between states, showing this conflict with the relationships between the state and federal government — where you have an unfree state saying, "We need to be able to capture and punish these people who are evading our laws by doing something that's totally legal in this other state, and we demand the federal government do something about it." Like, this is some antebellum bull — can I say "bullshit" on this channel? This is some antebellum bullshit. Sorry, Mom — I got carried away. I usually make sure I don't swear on things my mom could listen to, but I got caught up.

And yeah, they really do. Seeing this sort of Fugitive Slave Act redux — this Fugitive Womb Act — is outrageous, and it's pretty despicable. And it just makes it so clear. Like, it was already clear, we already knew these things, but it just puts it into even sharper relief. It really emphasizes — okay, yeah, we had a great stretch in like the '60s and '70s, and felt comfortable.

**Samantha Hancox-Li [00:38:02]**
Some of these things get your blood pumping. So I'm going to play devil's advocate a little bit here. I kind of started with this question of how did the court get so powerful, how did we get to a position where the court is going to be in the business of deciding how abortion is legal in various states — and it seems like maybe it's not a great situation to be in.

I'm going to play devil's advocate and say that we, as liberals, are kind of complicit in getting here. That for a long time we've basically accepted the framework that it is the Supreme Court that is the supreme branch of government — that is going to decide our most fundamental constitutional questions. It's not going to happen in Congress, it's not going to happen by legislation, it's going to happen in cases that are argued before the Supreme Court. And we kind of embraced this, because historically we've got some big wins there. We've talked about Brown versus Board of Education, Roe versus Wade. Even more recently, there's Obergefell — that's like a huge deal — and I think that encouraged a lot of liberals to think, "Yeah, that was correct, that was the right way to do it, was to decide marriage equality in argument at the court, and we won, and that's great."

And there's a lot of lawyers in the Democratic coalition, there's a lot of groups that know how to move the ball down the field — or at least try to — by arguing things in court. And I worry that this has all been kind of a mistake. That we shouldn't be trying to settle our most fundamental questions at the Supreme Court — we should be trying to settle them in Congress. We should be trying to settle them in much the same way that the Voting Rights Act was passed: by majorities in Congress, signed by a president. And I'm curious what you think about that line of argument. You could disagree — that's also totally allowed on this podcast.

**Madiba K. Dennie [00:34:42]**
Yeah, I think I am mostly in agreement. So my slight disagreement — or even not disagreement, but like a slight clarification — is, yeah, because I do think — I am anti-judicial supremacy. I would say I don't necessarily think it's a problem to move the ball forward in courts at all. I think it is okay to address some of these questions in courts, but we just shouldn't think that that's it — that the court, then, their answer is the final answer, and it should be the final answer.

I've had some disagreements with folks before, where they might be like, "You know, even though I agree with the outcome of, say, Roe v. Wade — like, that wasn't really the court's decision to make." And I'm like, I'm gonna get abortion rights however I can get abortion rights, honestly.

**Madiba K. Dennie [00:41:41]**
And I think, you know, if someone is going to be first to say, "Yes, this is a right" — like, I don't really care who's saying it, I care that it's being said. But I don't think that we should then leave that to the court to think, "Okay, it's settled now, it is decided now, the court gets the last word." I think it's kind of a mistake to assume that there is a conclusive "this is the last word," apart from the public, and apart from what people are willing to accept or refuse to accept. Because Congress can pass any law they want, and the court can put down any decision they want, but then people choose whether or not to follow it. So it always sort of comes back to people to decide what is actually settled, or how settled something is. So I think it is a mistake to put all of your eggs in the judiciary basket — but I don't think that means you can't have an egg or two. Yes, you gotta diversify.

**Samantha Hancox-Li [00:38:02]**
I kind of have a diversified egg portfolio. Stock trading advice from Neon Liberalism: diversify your eggs.

So I guess, maybe to put a point on some of these questions we've been talking about — I want to ask you about another aftershock of the Callais decision, which was the Virginia redistricting battle. Where Callais happens, Republican states are like, "It's gerrymander party time," Democrats were like, "All right, if you want to go there, we're going to go there." And in Virginia they say, "We are going to pursue a very aggressive gerrymander. We're going to turn this" — I can't remember what it was before, like a five-four Democrat-Republican state or something — "we're going to turn it into like a nine-two Democrat-Republican state," just by redrawing the lines on the map again.

I think this is crazy, but, you know, if somebody else brings a gun to a gunfight, you have to also bring a gun to a gunfight. And so the Virginia legislature — there's a constitutional process for doing this kind of thing. The legislature passes the law, they pass it again, it goes to a referendum of the voters, the voters approve it. It's in the midst of campaigning in these new districts. The Virginia Supreme Court comes out and says, "Actually, you did a technicality wrong, that wasn't okay." It is a weird little technicality, frankly — and overturns the gerrymander, and now they have a slightly less aggressive gerrymander. And Virginia Democrats in the legislature, and the governor, were like, "Well, the court's made its ruling. Too bad."

And I've seen people make this argument — Robert Black has made this argument in Liberal Currents, Jamelle Bouie has made this argument — that the legislature should have told the court to go pound sand. The legislature should have said, "Look, here's the Virginia Constitution, which is very explicit that the right of the sovereign people to alter their form of government is sovereign and inalienable. And the people spoke. They did a constitutional referendum."

**Samantha Hancox-Li [00:45:29]**
They made this choice. The court overstepped itself. It was ruling beyond things that it had the capacity to rule on when it issued this ruling. And we're just going to do the new elections the way we want to do them. I'm curious what you think of that argument.

**Madiba K. Dennie [00:44:04]**
Yeah, right. Like, I would rather not be in this position, but since I am, I guess this is what I got to do. Right — I'm here for it, honestly. I'm on team "tell the Virginia Supreme Court to pound sand." Because you mentioned the technicality, and I think that if we really want to be technical, the legislature was right — I think the Supreme Court was wrong.

The constitutional process that's laid out is that the legislature has to pass this amendment in one session, then there has to be an election, and then they have to pass it again in the next session, and then it goes to the voters. And here all of that happened — they passed it, there was an election, they passed it again, and then it went to the voters, and the voters were for it. And so for the Virginia Supreme Court to then basically make up its own rationale as for why that process existed — they say, "Oh, the purpose of having the multiple votes from the legislature on either side of an election is so people can have two opportunities to say whether or not they approve of what the legislature is doing, and they messed that up here, because early voting had already started." And mind you, under Virginia law, it also expressly says, for purposes of election law disputes, that elections are like this date. So the court was just completely doing its own thing.

And another one of the offensive parts to me is doing this and claiming that this was some righteous pro-democracy thing — that it was like, "Oh, they took away the voters' space to do this, so we need to nullify this." And I'm like, "I'm sorry — this has been voted on so many times, voters just approved it, a majority of the voting population just approved it. You're saying that you have to save democracy by thwarting it?" Like, this doesn't make any sense. And it's doing so in the midst of all of these horrible racist gerrymanders happening across the country. So it's just deeply offensive and anti-democratic, and small-d undermining of multiracial democracy. Like, not just bad for the Democratic Party, bad for democracy — bad for the ability of people to have their vote mean anything, because now you're literally just nullifying these people's votes.

So, yeah, I think it is totally legit in these circumstances for the legislature to say, "You know, thanks for your input, however, you were very clearly wrong, and we are very clearly right, and we're going to proceed with the constitutional referendum that the voters passed. We are going to follow the will of the people here. You should try it sometime." And I think that would have been totally reasonable for the legislature to do — and not just reasonable, but I'm kind of disappointed they didn't, because I'm like, "You're just gonna let the court steamroll y'all like that with this nonsense? Come on, you gotta exercise what power you have."

**Samantha Hancox-Li [00:45:29]**
Yeah, you gotta exercise the power that is given to you by the Constitution.

So, we are almost out of time — I'm sorry for losing track of time. I want to ask one more question, maybe the most important question, which is: what can we do about any of this, right? At the federal level especially, like we've talked about — how much power the court has attracted to itself, how stacked it is by these basically Republican rogues. What do you think we should do about it going forwards?

**Madiba K. Dennie [00:49:41]**
Yeah, I mean, it's certainly going to be challenging. The court is making it very hard, because — not just with the power they're claiming for themselves, but they're distorting elections in a way that makes it hard for people to get representatives or congresspeople who will take their views seriously and fight for them, and who would try to reclaim some of that power from the court. So it's going to be a task.

And basically, all tools have to be on the table. So, yes, voting is something you got to do, but voting is necessary but not sufficient. And bringing court cases is good too, probably — especially in state courts, where you might have better odds than stuff eventually getting its way up to this Supreme Court that we have — but that's not enough either. So people are going to need to be creative in thinking about how to pressure their legislators and pressure the courts. Whether it's some sort of forms of protest, or boycotts, or other sorts of organizing — really just finding new ways to make life hard for them too. Like, if they are making our lives hard, we need to make their lives hard in whatever way seems conducive to achieving our goals — just making it unsustainable for them to do otherwise. And I think that can probably, and will probably, look a lot of different ways, because people have always had to come up with creative things that fit their particular circumstance.

**Samantha Hancox-Li [00:45:29]**
Yeah, you got to have a little tactical flexibility when it comes to work, I think.

**Madiba K. Dennie [00:49:41]**
Yeah, yeah, I think that's right. I think it'll depend on what you're pushing for and who you're pushing, and so there's probably going to be a lot of variance, rather than one answer of "this is the one neat trick to save democracy."

**Samantha Hancox-Li [00:45:29]**
Okay, so, lightning-round question: what are your top three court reforms — top three court reforms — and then we can get going.

**Madiba K. Dennie [00:49:41]**
Ooh, okay. I mean, obviously court expansion, right? I feel like that's probably agenda item number one. Because we have this corrupt supermajority on the court that has no business being there, for so many reasons. And also, so many reasons why it's absurd to have this tiny handful of unrepresentative, elite, historically largely rich white guys named John getting to decide for the whole country, and have theoretically the final word on so many of these issues. That's absurd. And the least we can do is have a larger, more representative pool. And that's just the fastest, most constitutionally clear-cut way to stop the bleeding — because anything else we try to do, if it goes to this court, then they're just going to strike it down. So first thing you got to do is change that situation: get a bench that's favorable to democracy, and then we can get going. So that's my item one.

And I would also put in there — just, let me think, "top three" — okay, I'll say term limits, because, again, lifetime positions in a democratic society is absurd. Like, why are these people ruling for the rest of their natural lives? And this is one of my little spicier takes, but I really think we should think about jurisdiction stripping, which is limiting what the court has the authority to make rulings over in the first place. So, yeah, I'm like — we can change who is on the court, change how long they're there, and change what they can do.

**Samantha Hancox-Li [00:45:29]**
And then — okay, Madiba K. Dennie, thank you so much for coming on Neon Liberalism. It's been a pleasure.

**Madiba K. Dennie [00:49:41]**
Thank you for having me. Yeah, this was so much fun.