After the Virginia Supreme Court rejected the results of the recent Democratic effort to effectively wipe out Republican representation in the state, Democratic pundits and activists have latched onto a proposal by Michigan State Law Professor Quinn Yeargain to gut the court by forcing the retirement of the current justices, appointing liberal activists, and then reversing the opinion. It is extremely telling that some are pushing the raw muscle play to retake power in Washington, particularly in light of the calls to pack the United States Supreme Court once the party is back in control.
Professor Yeargain declared on Substack that there is “a simple – and lawful – solution: Send the entire court into early retirement.” Under this plan, Virginia Democrats would adopt an absurdly low age for retirement in a gut-and-pack scheme: Yeargain suggested that they could set “the mandatory retirement of justices and judges after they reach a prescribed age, beyond which they shall not serve, regardless of the term to which elected or appointed.”
The current retirement age is 73.
Yeargain dismisses that number as “arbitrary” and says that the Democrats need only to “Make it 54 for Supreme Court justices – the age of the youngest justice, Stephen McCullough, who joined the majority opinion – and make it take effect immediately.”
The fact that such an abusive plan is described as “simple” captured the logic of an age of rage. I recently wrote a column in which I warned that “the reversal of fortunes for the party could lead to an even more dangerous agenda” with Democrats pushing for packing the Supreme Court.
In the unlikely chance that this could pass the General Assembly (I am assuming that there remain some things that certain Democratic members just will not do), it would be difficult to engineer before the midterm elections, given the likely challenges. However, it is the inclination of some to try such measures that is chilling.
I noted that Virginia showed how “an independent court can unravel the best-laid plans.” Various politicians and professors have advocated radical changes to the political system to ensure the party retains power indefinitely. They acknowledge, however, that the Court could likely declare these moves as unconstitutional unless they first take control through a packing scheme.
The new proposal for the sack-and-pack scheme is even more cynical and brutal. Ironically, the Virginia Supreme Court declared the redistricting effort by the Democrats as not only unconstitutional but “wholly unprecedented in Virginia’s history.”
It characterized the state’s position as “a story of the tail wagging the dog that has no tail.”
The response of Yeargain and Democratic activists is now to suggest just shooting the dog and adopting a type of politically modified puppy bred to serve.
Such radical proposals are being rationalized with open disinformation. Pundits regularly fail to mention that the Democrats previously gerrymandered states such as Illinois, Massachusetts, and New York while claiming the right to win by any means necessary.
Others just deny reality. Sen. Tim Kaine (D., Kaine) lashed out at the Virginia Supreme Court and demanded to know why they waited so long to rule on whether there were fundamental flaws in the Democratic plan.
Kaine either never read the opinion or sought to mislead voters. The opinion has an entire section on the timing, noting that it was the Democrats and the Commonwealth that demanded that the Court wait to rule on the merits until after the election. After “successfully” seeking that delay, they are now accusing the Court of something untoward in doing what they demanded.
Notably, the sack-and-pack scheme sets aside any pretense of principle. The Democrats would simply adopt a ridiculously low retirement age for the sole purpose of populating the court with reliable and robotic justices. The fact that an academic and various pundits would expressly float such an idea is another chilling reminder of the growing radicalization on the left.
These are the “new Jacobins” discussed in my book Rage and the Republic, figures echoing the radical concepts or means used in France before what became known as “The Terror.” “By any means” has become a rallying cry on the left.
Law professors Ryan D. Doerfler of Harvard and Samuel Moyn of Yale have called for the nation to “reclaim America from constitutionalism.” Last December, they published a column titled “It’s Time to Accept that the US Supreme Court is Illegitimate and Must be Replaced.”
Democratic strategists know that the public will not approve of such measures.
Democratic strategist James Carville stated matter-of-factly, “They’re going to recommend that the number of Supreme Court justices go from nine to 13. That’s going to happen, people.” He added recently, “Don’t run on it. Don’t talk about it. Just do it.”
What is striking about the Virginia proposal is that it is being pushed so openly and unapologetically. Democrats realize that they have alienated half of Virginia already. Republicans and independents are not likely to forget that every major Democrat in their state, including Gov. Abigail Spanberger, sought to erase their very political existence. It is not partisan, it is personal.
In destroying bridges to cross-over voters in the purple state, what is left is raw political brutality. You must dump-and-pump in seeking radical measures to grab power. In the process, no court or institution is sacred in the cause of social and political change.
It is all part of the Nike School of Constitutional Law: Just do it.
Jonathan Turley is a law professor and the best-selling author of “Rage and the Republic: The Unfinished Story of the American Revolution.”
This column ran on Fox.com.
It seems that many people are missing the existential issue. If you go to Quinn Yeargain’s webpage at Michigan State University of Law, you will find out everything you need to know about the “professor”. Quinn Yeargain uses the so-called pronouns “They/them/theirs”. In other words, his understanding of American common law and the Constitution have nothing to do with individual rights, individual liberty, individual right to vote, or individuals in general. His understanding of the fundamentals of America is that it’s all about “the whole”, and “They/them/theirs” get to say what’s right and just for every individual … and how every individual must live … and what words every individual is allowed to use without being a racist, insurrectionist, or Nazi.
If they did that to the USSC it and the entire Federal Government becomes immediately irrelevant. States and individuals at the point are free to ignore anything that comes from the Bench. We’d become not a nation of Laws and instead become a nation of Men who have the Will to Power and the willingness and means to use it.
Blacks Won’t Forget Seizure Of Districts
The Supreme Court may argue, in gutting the Voting Rights Act, that they’re creating race-neutral districts. But the practical reality of what this means is staring political leaders and, more to the point, Black voters in the face: white Republicans fracturing African-American districts to unseat mostly Black Democrats so they can elect more white Republicans.
I’ll stick to the raw politics and let others make the self-evident moral case for Black electoral power in a country with our history.
In their rush to grab an extra seat or two, Southern Republicans should consider what may happen to their 2024 gains with Black voters.
Do you think GOP nominees will get 21 percent of Black men, as Trump is estimated to have received in 2024, in future elections when you’re handing Democrats perhaps the easiest racial messaging they’ve had in the post-Civil Rights era? In case you needed a primer, that would be: You can’t trust Republicans, they only want to silence your voice.
https://www.politico.com/news/magazine/2026/05/11/trump-gop-redistricting-warning-00913677
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MAGA defenders like Johnathan Turley resort to arcane arguments to justify White seizure of Black congressional districts. But any Republican who thinks Blacks will forgive and forget is deluding themself. 20 years from now, Blacks will still be saying, “I remember when the racist Roberts court let White Republicans steal our seats in Congress”.
SCOTUS Contradicted Itself On Louisiana
In the 2019 case Rucho v. Common Cause, the court declined to invalidate heavily gerrymandered congressional districts, clearly drawn to disadvantage one political party, on the theory that the issue of political apportionment is “nonjusticiable,” and thus beyond the authority of the Supreme Court to rectify.
Nonetheless, the majority opinion, written by Roberts and joined by the other four conservatives then on the court, noted that “excessive partisanship in districting leads to results that reasonably seem unjust” because it is “incompatible with democratic principles.” Moreover, the majority added, “Our conclusion does not condone excessive partisan gerrymandering.”
That was then.
Late last month, in Louisiana v. Callais, the same five justices, now reinforced by Amy Cony Barrett, bestowed a seal of approval on “legitimate” partisan gerrymandering, used as a reason to eliminate a majority-Black congressional district, mapped under the Voting Rights Act.
So in the space of seven years — which is not long in judicial time — the court’s conservatives went from lamenting the injustice of partisan gerrymanders as unfortunately beyond their reach, to endorsing what they blithely called “a target partisan distribution of voters” as a sacrosanct state prerogative.
https://thehill.com/opinion/judiciary/supreme-court/5870118-conservative-justices-voting-rights/?
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As a constitutional law professor, Johnathan Turley should’ve caught this contradiction right away. But his position at Fox News prevents him from noting.
Partisan gerrymandering is constitutional.
Racial Gerrymandering is not.
You can not use race as the means to acheive partisan gerrymandering.
Any contradication is only in your head.
SCOTUS has been telegraphing this was coming since the VRA as passed.
Racism is wrong, you do not fix racism by engaging in racism.
Your rejection of the teaching of Martin Luther King, jr. is telling.
You might try not being nasty, vile and ugly.
Aparently you are so deluded that you think there are no black or minority republicans.
The current purpose of the VRA S2 is not to favor minorities – it is to favor democrats.
It is racist to beleive much less say that blacks need special help to succeed politiclly.
Virginia, Election Month, and Goodhart’s Law
Overview
The Virginia redistricting fight is not just a partisan dispute over congressional maps. It exposes a deeper problem in election law: federal and state courts gradually papered over a shift from a real Election Day to a de facto election month, and the Virginia Supreme Court majority effectively said that quiet part out loud by treating the election as including the early-voting period. That move may have solved the immediate state-law problem, but it also sharpens the tension with federal statutes fixing “the day for the election” of Representatives and other federal officers.
The irony is severe. By pushing an aggressive theory of election timing in order to salvage a mid-cycle redistricting plan, Virginia Democrats may have handed Justices Thomas and Alito an unusually attractive vehicle for revisiting the unresolved contradiction between Election Day in the statutes and election month in modern practice. The deeper reason this clash became inevitable is that courts chose semantic reconciliation over equity: instead of preserving Election Day as the rule and treating absentee voting as a narrow equitable exception, they gradually redefined the “election” to absorb extended voting periods.
The Virginia situation
Virginia’s constitution requires two approvals of a proposed amendment by the General Assembly with a House of Delegates election in between before the amendment may be submitted to the voters. Democrats used an unusual sequence of legislative timing maneuvers, including keeping a prior special session open and then reconvening it, to move a redistricting amendment onto the ballot for an April 21, 2026 special election aimed at changing congressional maps before the midterms.
Virginia law also allowed a long early-voting period for that April special election, beginning on March 6, 2026. When the case reached the Supreme Court of Virginia, the majority treated the election as encompassing that early-voting period, which meant that the first legislative approval occurred after the election had already begun and therefore failed the state constitution’s intervening-election requirement. The result was that the referendum was voided on state constitutional grounds, despite voter approval.
That bottom-line result can be defended as a straightforward application of the state constitution’s structural safeguard. But the conceptual price was high. By legally treating the election as beginning when early voting opened, the Virginia court made explicit what many courts elsewhere have preferred to leave implicit: under modern practice, elections are often no longer day-bound events.
The irony of a Supreme Court appeal
The immediate federal problem for Virginia Democrats is that the U.S. Supreme Court has little reason to disturb the Virginia Supreme Court’s interpretation of the Virginia Constitution. The state court’s ruling rested on state constitutional amendment procedure and on the meaning of an intervening House of Delegates election under Virginia law, subjects over which state courts ordinarily have the final word.
Yet that same weakness on the merits creates a different danger. If the U.S. Supreme Court takes the case at all, it may use the opportunity not to rescue the amendment but to say sharper things about federal Election Day law, federal supremacy over congressional election timing, and the incompatibility between a statutorily fixed “day for the election” and the normalization of extended voting periods. Commentators have already noted that the Court appears ready in the Mississippi late-ballot case to read federal Election Day statutes strictly, especially with respect to ballots arriving after Election Day.
That is what makes the Virginia appeal such a potential self-own. To save a map, the appellants may have supplied the conservative justices with a vivid factual example of how modern election law has drifted from the statutory text. Thomas and Alito do not need much imagination to describe Virginia’s system as “election month” rather than Election Day, because the state court itself supplied the vocabulary by treating the election as beginning with early voting.
Election Day versus election month
Federal law provides that the Tuesday after the first Monday in November is “the day for the election” of Representatives, with parallel provisions for other federal offices. The modern doctrinal compromise has been to say that ballots may be cast before that day so long as the election is not “finally decided” until Election Day. That line appears in lower-court reasoning and commentary defending the constitutionality of early voting.[eac +3]
That compromise once had a limited plausibility because absentee voting began as a narrow accommodation for soldiers and other exceptional categories of voters who could not appear in person on Election Day. Over time, however, no-excuse absentee voting and broad early-voting windows spread across the states, with many jurisdictions now treating mail and early voting as ordinary channels rather than exceptional accommodations. Once the practice became large and routine, the doctrinal claim that there is still one meaningful Election Day, with all earlier activity merely preliminary, became increasingly hard to defend as anything other than a semantic patch.
Virginia exposes the strain in that patch. A court cannot both say, with a straight face, that the election begins when early voting opens for purposes of one constitutional question and insist that the election is still really a day-bound event for all other purposes without admitting a conceptual fracture. Powell’s dissent effectively identified that fracture, arguing that the majority’s broad definition of “election” conflicted with both Virginia’s own understanding of a general election and the single-day structure of federal law.
Why Thomas and Alito would find this irresistible
For justices already skeptical of expansive mail and early voting, the Virginia case presents nearly ideal facts. It combines an aggressive partisan bid for mid-cycle congressional redistricting, an openly extended conception of the election, a state supreme court opinion acknowledging that voting began weeks before Election Day, and a live Supreme Court docket already featuring strict Election Day questions in the Mississippi litigation.
A Thomas or Alito concurrence could proceed almost mechanically. First, quote the federal statute establishing the day for the election. Second, recount the limited historical pedigree of absentee voting as an equitable exception rather than a coequal election regime. Third, contrast that tradition with modern no-excuse absentee voting and long early-voting windows. Fourth, point to Virginia as proof that the law now operates as election month, not Election Day, and conclude that earlier decisions upholding the modern system rested on doctrinal fictions that are no longer sustainable.
Chief Justice Roberts might prefer a narrower path and simply say that broader questions about early voting are “not before the Court.” But that move would not eliminate the contradiction; it would only postpone it. The incompatibility would remain in plain view: state courts like Virginia’s are openly describing elections as multiweek events, while federal jurisprudence continues to speak in the language of a single statutorily fixed day.
From doctrine to Goodhart’s law
This is where the episode becomes more than a legal curiosity. It is a textbook instance of Goodhart’s law operating through legal doctrine. The original goal was a real Election Day as a shared, temporally concentrated public act, softened only by narrow exceptions for voters who genuinely could not appear. But courts and legislatures gradually substituted visible proxies for that goal: turnout, convenience, access metrics, low Election-Day congestion, and later, partisan timing advantages.
Once those proxies were adopted, they ceased to function as subordinate considerations and became competing goals in their own right. That transformation matters. A constraint says, in effect, “maximize what you can, but within this structure.” A trade space says, “balance these goals against one another.” Once Election Day became merely one value among many, rather than the rule from which equity could make narrow departures, it became subject to political bargaining and strategic optimization.
The Virginia legislature then did what the proxy goal substitution model of Goodhart’s law predicts. It optimized against the legal proxies available to it: session timing, the formal existence of an intervening election, the availability of an April special election, and the long early-voting window that would front-load ballots before opposition could fully react. The resulting structure was not a bug in the system. It was the predictable behavior of actors responding rationally to proxy-laden legal architecture.
Equity versus semantic shell games
An equitable approach would have looked different from the beginning. It would have maintained a simple rule: federal elections occur on Election Day, and absentee voting is a narrow, fact-bound accommodation for those who genuinely cannot vote in person on that day. Under such a framework, every expansion of absentee or early voting would need to be justified as a true exception serving the underlying goal of protecting the franchise without displacing the Election Day norm.
That approach resists Goodharting because it keeps the goal visible. Equity asks whether the underlying purpose of the rule is being preserved in a hard case. Semantic shell games do the opposite. They redefine the rule itself so that the hard case disappears into the new baseline: the “election” becomes a period, “Election Day” becomes merely its culmination, and what was once an exception becomes ordinary administration.
Once that redefinition hardens, Goodhart’s law is no longer an occasional pathology. It becomes the operating logic of the system. Turnout, convenience, ballot volume, partisan advantage, and administrative calm become explicit dimensions to be traded off under political pressure rather than subordinate considerations constrained by a stable normative core. That is why the Virginia case is so clarifying. The legislature Goodharted the proxy because the legal system had already converted the proxy into part of the rule.
Why this became inevitable
The most important lesson is that the current conflict was not an accident. Once federal and state courts moved from explicit equitable exceptions to semantic redefinition, a future collision became unavoidable. The shift from Election Day to election month could be denied rhetorically, but it could not be contained institutionally.
As soon as a state court candidly acknowledged that an election begins with early voting, the latent contradiction with federal single-day statutes became easier to see and easier to litigate. That, in turn, makes the work of a justice like Thomas much easier. He would not need to invent a new critique; he would only need to point to the text, the history of absentee voting as a narrow exception, and the Virginia court’s own description of election month as the new reality.
Final analysis
The Virginia episode therefore matters on three levels. As litigation, it is a fight over a failed redistricting amendment and a disputed reading of the Virginia Constitution. As doctrine, it highlights the instability of a jurisprudence that still speaks of Election Day while tolerating election month. As institutional analysis, it shows why Goodharting was inevitable once courts adopted proxy-driven semantic accommodations instead of goal-centered equitable reasoning.
The central irony is that a maneuver designed to secure partisan advantage may now help reopen the deeper question of whether the legal system can continue pretending that extended voting periods are fully compatible with statutes mandating a day for federal elections. If that question is squarely confronted, the fault will not lie only with Virginia’s legislature. It will also lie with the courts that chose, for decades, to paper over structural change rather than discipline it through explicit and limited equitable principles.
MAGA
Again
Trump 2.0
“…I am assuming that there remain some things that certain Democratic members just will not do…”
Is the good Professor familiar with the old joke about “ASS-U-ME”?
The Red and Blue parties are like children fighting over who gets the biggest bowl of ice cream for dessert while it melts into soup as they scream at each other.
False equivalence on steroids.
The remove-the-justices scheme would constitute a bill of attainder. Such legislative acts are forbidden by the Constitution of Va.
Fox News published this article with a headline “plan would oust justices”. I remember getting the WaPo off the front step in 1964 when the huge headline was “Khrushchev ousted”. The story went on to say he was ousted in an ouster. I thought to myself, that’s how Commies do it, not with an election, they just oust ya with an ouster.
Why does anyone take Yeargain seriously? Look him up. This is much ado about nothing.
Just to be clear, Massachusetts was/is NOT gerrymandered to exclude Republicans from being elected a Congressional representative.* There is no 700,000-person district that anyone can conceive of in Massachusetts which would have more than a 20% Republican population. Less than 10% of us are Republicans (of course, two thirds of us are neither Democrat or Republican). You might jigger these numbers a little if the Supreme Court were to rule that only citizens should be counted in the Census for the purpose of apportioning Congressional seats but I doubt that would even change the complexion of the Massachusetts Congressional delegation. The only Republican from Massachusetts in Congress this century was a RINO through and through and only served a few months because of a fluke election no one paid any attention to (so flukey that the Democrat legislature didn’t bother to rig the election laws like they usually do to keep that from happening)
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*Massachusetts is racially gerrymandered to keep the whites in West Roxbury and South Boston separate from the blacks in the ghettos and is also politically gerrymandered to give Boston two Congresspeople when it does not even deserve one based on its population
And yet Scott Brown was elected Senator in MA.
With all due respect to the author of the piece, who deserves a pass, perhaps Shakespeare had the right idea.
What the law schools of the nation are giving us does not forbode well going forward.
What Shakespeare suggested was that to kill all the lawyers would be a means of inducing chaos. As the leftists say, “do the work.”
They will try anything. Even like pumping air into a flat tire with a hole in it.
These are the same Democrats who clutched their pearls when Trump criticized courts and rulings. Demofascists quickly reveal themselves to be shameless power-hungry authoritarians, at every turn. It’s no surprise to those of us who have been following the devolution of the Democrat party.
Replacing the entire VA SCOTUS is one of the funniest outrages-of-the-month from the Trump 2 Era.
There was no shortage of experts denouncing the VA redistricting plan, particularly its lethal reliance on violation of law regulating voter initiatives. But Democrats in Virginia appear as myopic as Biden or Jeffries or Harris. They simply cannot formulate any plan that doesn’t depend on directly violating law every bit as much as they claim Trump often does.
Anti-incumbency may be the message received by voters.
Remember – Republicans say “Leave it to the voters” until the voters decide something they don’t like and the Republicans say “Don’t trust the voters.”
Wrong. The courts are there for a reason. The rule of law worked in this case, surprisingly so. Now the Dems want to stack the deck to make sure the guardrails–the courts–are removed.
That initiative was added to the ballot after over a million people had voted. There is NOTHING legal about that and gaslighting readers to believe Republicans oppose reasonable politics is pure fiction. Typical for the Democrat Jacobins.
Bu tthey do not say eliminate th evoters
The desperation of Democrats to force– and then cement their power initially angered me. Now it greatly saddens me. They think they cannot win the fair way, so they resort to these gutter measures. It not only spotlights the weakness of their positions that don’t appeal to most people, but their bottomless pit of tactics. It saddens and frightens me at the same time. Throw the rule books out, throw tantrums, muscle, intimidate the last vestiges of the common sense Democrats and turn them into cowering cowards. All while proclaiming the Republicans are the ones “destroying Democracy”? I pray our Republic can withstand this twisting of the truth and chaotic madness.
Worked for the Nazis, Mao, and Lenin. They are just following the playbook by their predecessors. I found this recent turn of events to be terrifying when added to the left’s determination to pack the Supreme Court. Raw power is what they want. To heck with democratic processes.
You said it best. It is terrifying. And, they’re doing it with impunity. The fig leaves of decency are gone. They’re almost like rabid dogs now.