My new Verdict column addresses the question of what can and should be done to mitigate the damage from the Supreme Court's further destruction of the Voting Rights Act (VRA) in Louisiana v. Callais. The column is aspirational in that it proposes federal legislation that could not be enacted unless and until Democrats hold a majority in both houses of Congress and there is a Democratic president. Even then, enacting such legislation would almost surely require ending the filibuster. In today's essay, I consider where such legislation should fit in a legislative agenda for 2029 or, in the event that Democrats don't control Congress and the presidency in 2029 but a constitutional republic still survives into the further future, 2033, 2037, or whenever.
The column discusses two bills that passed the House but died in the Senate during the Biden administration. One, the John R. Lewis Voting Rights Advancement Act (JRLVRAA), would amend the VRA. Because it strengthens mechanisms of the VRA that six Justices think are unconstitutional race discrimination, it would appear to be a non-starter unless coupled with some means of limiting or changing the Supreme Court. I'll say a bit more about Supreme Court reform in a Postscript below, but for now, I note that although enactment of the JRLVRAA would be an improvement over the status quo (if it were upheld), I think that both it and the other bill I discuss in the column--the For the People Act (FTPA)--are suboptimal relative to my preferred legislation.
The FTPA has some provisions I like, but in my column I focus on its requirement that states use independent redistricting commissions. This too would be much better than the status quo. Moreover, it would not cross any current SCOTUS red lines. But, as I explain in the column, my preference would be a federal statute that repeals the requirement of geographic House districts and replaces it with a federal requirement that states hold at-large elections based on party lists with proportional representation. That would solve both the political gerrymandering problem and promote representation of racial minorities without using any racial criteria (and thus not violate the current Court's limits on the use of race).
Once we are fantasizing about what a responsible Congress might do, we might as well come up with some priorities. Needless to say, I'm not the only person thinking along these lines. Googling "Project 2029" produces numerous websites (such as this, this, and this), each with its own set of priorities and policies. I do not mean to start another organization. Rather, I offer a few thoughts to whoever might be in a position to formulate and implement a reform program.
In the title of this essay, I've suggested that the key is to set priorities. However, one might think that the very notion of setting priorities runs counter to an effective Project 2029. A new president and Congress have a brief honeymoon period in which to act. Thus, the argument would go, they ought to cram as much of their agenda as possible into either a single piece of legislation (a really big really beautiful bill, if you will) or a raft of laws that they adopt in rapid succession.
I would indeed favor enacting as much of a liberal/progressive agenda as possible as soon as possible. But if, as I suspect, getting everything done all at once turns out to be an insuperable challenge, then one will have to prioritize. Picking priorities is difficult because there are so many problems. Here's a non-exhaustive list:
• Democracy deficits, including political gerrymandering, de facto racial gerrymandering, and voter suppression
• Environmental catastrophes, including but not limited to the climate crisis
• Use by the current administration of the organs of government to punish critics and other perceived enemies
• Corruption
• Overly restrictive immigration limits and oppressive immigration enforcement tactics
• Effectively unconstrained presidential power to use military force
• Widening gaps between the extremely wealthy and nearly everyone else (including affordability issues)
• Lack of health insurance/health care for millions
• Economic and social ills caused by social media, AI, and other transformative tech
• Empowerment of cranks and disregard for expertise both in government and government-funded projects (in universities and elsewhere)
• Reactionary judiciary
• Empowerment of racists, misogynists, anti-LGBTQ+ activists, and other bigots
• Gun violence
• Police violence
As I said, that's a partial list. No doubt each reader will think of multiple items I've omitted. I haven't included on the list one item that I think is vital: ending or at least severely curtailing animal agriculture. In addition to addressing the unnecessary suffering of billions of sentient beings annually, doing so could be an important part of the answer to multiple environmental issues as well as to promoting human health, but it's not currently politically realistic, even following a Democratic sweep.
Meanwhile, each item that does appear on my list could be expanded to include many very difficult sub-problems. I know because I've been spending some of my time over the last several months as a member of the steering committee of the Knight Institute's Reconstructing Free Expression initiative. It focuses on just one aspect of what ails us as a polity: the many ways in which our system of free expression has been weakened by a combination of market forces (such as the decline of advertising revenue for local journalism) and government attack (by the Trump administration). Thus far, we have had two convenings of scholars, lawyers, activists, and others to discuss the myriad problems and possible paths forward. Our aim is to produce actionable items, but it is a daunting task because, as quickly became apparent once each discussion began, the problems are many and complex. (My essay to accompany our first convening can be found here. The essay I wrote for the second convening will run tomorrow on the Knight Institute website; I will cross-post it on this blog on Friday.)
So, with so much to be done, how should priorities be set? I would suggest three criteria.
First, address those issues that, if not addressed or addressed badly, risk retrogression. At the top of the list would be all of the items that prevent the U.S. from functioning as a genuine democracy. Insofar as the goal is to make it harder for a future Trumpist or otherwise authoritarian movement to ascend to power again, one would want reforms to be entrenched, but respect for genuine democracy means that the political system must remain open. Thus, the democracy agenda must include reforms regarding not only matters like voting rights that are directly about democracy but also matters that foster democratic culture, including freedom of speech, a free press, and education.
Second, I would prioritize solutions that address multiple problems. As I noted above, greatly reducing animal product consumption is one such solution. There are many others. For example, limiting concentrations of wealth through collection of more taxes enables government to do more for people across a wide range of issues; it also makes the government more responsive to the needs of the people and less responsive to plutocrats.
Third, some problems are urgent simply because of their magnitude and the fact that the longer they go unaddressed, the worse they become. The climate crisis obviously falls into this category. The difficulty here is maintaining power long enough for investments in green energy to pay off. They will, but it is at least a little unsettling that much of the recent dip in Trump's (already-low) approval rating is due to higher gas prices. If gas prices stay high for the long term, that will be helpful for planetary survival. The disconnect between what's in everybody's long-term interest and what the people want puts enlightened leaders in the difficult position of having to . . . you know . . . dissemble . . . like by calling an important piece of environmental legislation the Inflation Reduction Act.
Postscript
Much of Project 2025 has been achieved through executive action without new legislation. I have framed Project 2029 as a legislative agenda for three main reasons. First, statutes are harder to reverse than executive policies. Second, there are some things that simply cannot be done without legislation. Third, even matters that can fairly be accomplished via executive action risk being invalidated by an aggressive Supreme Court that has, in recent years, developed multiple tools to invalidate executive actions it disfavors--especially the major questions doctrine and the overruling of Chevron deference in the Loper Bright case.
That brings me to my final point: If the Supreme Court proves to be an obstacle to an aggressive Project 2029 agenda even if adopted through legislation, some sort of Court reform might be necessary. The one reform that seems to have broad support--18-year term limits for Justices (which might not be possible without a constitutional amendment)--would take far too long to phase in for it to make a difference in the relevant time frame.
Two highly controversial reforms could have more immediate political payoffs. One would be to curtail the jurisdiction of the Supreme Court and other courts to invalidate or otherwise limit key legislation.
Under the orthodox view of Ex Parte McCardle, with the possible exception of habeas corpus, Congress has essentially unlimited power to limit the Supreme Court's jurisdiction. In the interest of full disclosure, however, I should add that I've never liked the orthodox view. I favor some variant of Henry Hart's view that Congress may not use Article III's Exceptions Clause to prevent the Supreme Court from fulfilling its essential role in the constitutional order. But I don't make the rules. It's possible that a majority of the Roberts Court would accept the orthodox view.
Possible but not guaranteed in advance. A Supreme Court decision invalidating jurisdiction stripping and then invalidating some important substantive provision of the Project 2029 legislative agenda might come a couple of years after enactment, at a point at which the composition of Congress might make it impossible to respond with Court expansion. Therefore, one might think that to mitigate that risk, one would need to include in the original package of legislation a measure expanding (or pejoratively, "packing") the Supreme Court.
Court expansion has the virtue of being almost certainly constitutional. The Constitution sets no limit on the size of the Supreme Court, which fluctuated from the Founding through Reconstruction. Congress rejected FDR's Court packing plan as a threat to judicial independence but without a serious argument that it was unconstitutional.
To be clear, however, I am not proposing Court expansion. I have no idea whether it would be tactically wise or necessary. I seriously doubt that it would be strategically wise, given the likelihood that once the Court packing genie is out of the bottle, a future Congress and president would expand the Court even further for the opposite ideological spin. I note only that the fact that Court packing is being given serious consideration is an indication of the degree to which our political/legal system is broken: if there is genuine doubt that constitutional democracy will survive to the next election, one considers options that could be dangerous in the long term on the theory that without them there will be no long term.
-- Michael C. Dorf