Republicans are ready to pack the courts

Abortion-rights and anti-abortion protestors gather in front of the U.S. Supreme Court after the leak of a draft majority opinion written by Justice Samuel Alito preparing for the court to overturn Roe v. Wade later this year, in Washington, D.C., on Wednesday, May 4, 2022.
Anna Rose Layden
Abortion-rights and anti-abortion protestors gather in front of the U.S. Supreme Court after the leak of a draft majority opinion written by Justice Samuel Alito preparing for the court to overturn Roe v. Wade later this year, in Washington, D.C., on Wednesday, May 4, 2022.

In the days following the explosive May 2 leak of a draft Supreme Court decision overruling Roe v. Wade and ending federal constitutional protections of abortion rights, Republicans faced a thorny problem. Red state legislatures nationwide are barreling forward with all manner of schemes to criminalize abortion and ban or severely limit some forms of contraception. But that’s easier in some states than in others.

Some red states enshrine reproductive freedom in their state constitutions, or at least have found a right to abortion and contraception in state constitutional clauses declaring a broad right to privacy. Kansas, Montana, Alaska and a handful of other red states now have constitutions and legal findings at odds with Republicans’ rush to pass sweeping abortion bans.

Faced with state supreme courts that limit or even block Republicans from banning abortion, state lawmakers and anti-choice activists are proposing a new path. Their plan? Impeaching and replacing justices until Republicans find judges willing to give them the abortion rulings they want. Even if that means removing every single justice in the process.

After months tarring Democrats as enemies of the rule of law for a few scattered calls to expand the Supreme Court, Republicans aren’t asking permission — they’re prepared to reshape state supreme courts immediately. 

Speaking with Montana’s KTVH, Montana Family Foundation President and CEO Jeff Laszloffy bemoaned the 1999 Montana Supreme Court decision Armstrong v. State, which found that Montana’s right to privacy extended to obtaining abortions. “Armstrong put us in a box,” Laszloffy told KTVH’s Ashley Nerbovig

“For Lazsloffy [sic],” Ashley Nerbovig writes, “the two paths to make abortion illegal in Montana are either to amend the state constitution to no longer protect abortion, or replace the entire Montana Supreme Court and get it to nullify Armstrong.” 

Confident that they’ve likely overturned Roe v. Wade and half a century of abortion law in America, Republicans are in no mood to hide their true intentions. Gone are any concerns about protecting the integrity and independence of the courts, until recently a common Republican response to Americans’ increasing calls for serious reforms to the Supreme Court. Now the GOP is out to enact as much of its anti-choice agenda as quickly as possible. That means embracing the destruction of state courts into Republican-anointed rubber stamps, with judges only safe in their positions if they reliably and uncritically advance the party’s extremist agenda.

Montana isn’t alone. In Louisiana, Republicans have revised the state’s already sweeping abortion criminalization bill to undermine the legitimacy and independence of both federal and state courts. The legislation includes language explicitly ordering the state to “disregard any part or whole of any federal court decision” which rules Louisiana’s law unconstitutional. And any state judge who rules the law too extreme “shall be subject to impeachment or removal.” 

Louisiana Republicans are willing to accept the judgment of the courts — as long as those judgments go their way. If not, they’ll clear out the bench and find more pliable jurists. Montana’s and Louisiana’s proposals go far beyond the idea of adding additional seats to the United States Supreme Court. They demand loyalty on pain of removal from public office, not to state or federal constitutions, but to the GOP.

“I’ve never seen legislative language like what’s in Louisiana’s abortion ban,” Washington Post race and ethnicity reporter Emmanuel Felton tweeted on Monday. “The state can disregard any federal court order curtailing the law and the state judges who declare the law unconstitutional or stay enforcement will be impeached.” 

Alaska Republicans are taking the hint. There, state Republicans are working to pass a constitutional amendment overriding their state supreme court’s 1997 decision protecting abortion rights. And Alaska Independence Party Chairman Bob Bird wants Republican Governor Mike Dunleavy to immediately end enforcement of the state court’s “unconstitutional” pro-choice and pro-privacy decisions. The new Republican playbook is simple: ignore the rulings you don’t like and remove the troublesome judges who disagree with party scripture.

A century and a half after reactionary, antidemocratic forces instigated America’s first judicial nullification crisis, Republicans are once again careening our nation into a dark and dangerous place solely to serve their short-term political interest. As red states become even more hostile to the rule of law, public trust in our judicial system will only further decay. Unfortunately for the rule of law, Republicans have once again found power more seductive than principle.

Max Burns is a Democratic strategist and founder of Third Degree Strategies, a progressive communications firm. Follow him on Twitter @themaxburns.

Tags Constitutional amendments Court packing roe v wade support Roe v. Wade Samuel Alito Supreme Court

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