The Road to Perdition

By Nick Catoggio

Monday, May 11, 2026

 

Liberalism cares about process, postliberalism cares only about results. That creates an asymmetry.

 

In a liberal system, postliberal factions can get their way by following the prescribed rules for changing policy. Win elections, pass laws, stay within the bounds of the Constitution, and they’re free to implement the mass-deportation program of their dreams.

 

In a postliberal system, the ruling regime writes the rules so that liberal factions can’t get their way. In some cases, like China, that means Tiananmen Square and gulags for dissenters. In less extreme examples, like Viktor Orbán’s Hungary, it meant stacking the electoral deck against opponents—converting the media into house organs for the government, for instance, and turning economic and bureaucratic institutions into arms of the ruling party.

 

The dilemma for liberals in a country that’s slouching toward postliberalism is deciding how long they should tolerate that asymmetry before it places them at an irreversible disadvantage. If postliberals are rewriting the rules to give themselves a permanent structural hold on power, when should liberals abandon their commitment to procedural norms and switch to a more ruthless results-oriented politics of their own to thwart their enemy?

 

I ask because I suspect last week’s court ruling in Virginia has finally pushed the left past that point with respect to the judiciary.

 

On Friday, the Virginia Supreme Court invalidated the state’s ballot referendum authorizing the Democratic-controlled General Assembly to redraw House maps. The old map gave the ruling party a 6-5 advantage; the new one would have expanded it to 10-1. Mid-decade redistricting is very much a violation of traditional norms, but Virginia’s left-leaning electorate was merely fighting fire with fire. After all, Republicans in Texas had already crossed the Rubicon last year when they gerrymandered their own state to try to maximize the number of GOP-held House seats.

 

Insofar as it rewrote procedural rules to favor the ruling party, the Virginia referendum was an exercise in postliberalism. But it had a vaguely liberal justification: As long as both parties are free to favor themselves in states they dominate, neither is creating a permanent structural disadvantage for the other at the national level. The rules apply equally, and each side is capitalizing. There’s no unfairness.

 

The Virginia ruling will detonate that belief. Which is ironic.

 

It’s ironic because the decision itself is a textbook example of liberal reasoning, prioritizing process over results, yet the outrage it’s caused on the left will create a biblical disaster for liberalism in the United States in the long run. Court packing is the single stupidest idea that Democrats have, but if there was anything still holding them back from it before Friday, I doubt there is now.

 

Context is everything.

 

Outcomes are fair if and only if they’re reached via the process codified in law: That’s liberalism, and that’s why the Virginia Supreme Court invalidated the referendum.

 

Virginia law specifies that if the General Assembly wants to amend the state constitution, it must approve the amendment at two separate legislative sessions with an election in between. The first approval for the new redistricting initiative passed last fall, shortly before Election Day—but after early voting had begun. That was too late, the state Supreme Court held. Early voting counts as part of an election, so there was no election “in between” the first and second approvals.

 

Virginia Democrats failed to follow proper process, so the outcome they wanted doesn’t count.

 

In fact, the majority noted in its opinion, Democrats argued repeatedly during litigation that the court should wait to rule on whether the referendum was legal until after the vote was held. Their bet, obviously, was that the judiciary wouldn’t dare overturn the will of the people once Virginians had voted to approve the new House map. Forced to choose between rubber-stamping a questionable legislative process and nullifying an outcome with unimpeachable democratic legitimacy, surely the court would contrive a way to uphold the outcome by interpreting the law that governed the process flexibly.

 

Except it didn’t. Invalidating a successful ballot initiative with national political implications because the state’s ruling party cut a procedural corner in advancing it is one of the nerviest examples of classically liberal jurisprudence that I can imagine.

 

But that’s not the way anyone to the left of, say, Susan Collins will see it.

 

All they’ll see is that, in a national environment that was already ghastly for Republicans and is getting worse by the day, the GOP’s chances of holding onto the House somehow improved over the past month. That context is everything in understanding the Democratic backlash to the Virginia ruling.

 

The U.S. Supreme Court’s recent ruling on the Voting Rights Act greenlighting redistricting of majority-minority districts could flip more than a dozen Southern congressional districts from blue to red, depending upon how redistricting in those states proceeds. That includes Florida, where there’s a chance that the state Supreme Court will okay a new, redder map despite the fact that the state constitution clearly forbids partisan gerrymandering. Combine that with the Virginia Supreme Court nuking four red-to-blue seats due to the vagaries of when an “election” officially begins, and the left finds its electoral prospects declining at a moment when its lead in the generic ballot is … growing.

 

Democrats will look at all of that and conclude that America is transitioning from a liberal system to a postliberal one, in which right-wing judges rewrite (or reinterpret) the rules to place the ruling party at a permanent structural advantage. “Republicans Don’t Need to Win Elections Anymore. They Just Need Their Judges,” Mother Jones’ Ari Berman declared after Friday’s Virginia ruling, and while that’s not technically true, it’s truer than it was a month ago. According to multiple election analysts, the events set in motion by SCOTUS’s ruling could see the GOP hold its House majority this fall even if it loses the overall popular vote—provided that it does so by less than 4 points.

 

A certain kind of conservative will roll their eyes and intone pedantically that there’s no such thing as a national popular vote in congressional races, which is true but entirely too glib about the consequences of all of this for public faith in liberalism. The less capable our system is of producing outcomes that the losing side will see as “fair,” the greater that side’s appetite for postliberalism will be. If a process-oriented politics can’t deliver fair results, its frustrated subjects will conclude that a results-oriented system is the only alternative.

 

To many, a court overturning a vote of millions of Virginians that went in Democrats’ favor on a debatable procedural technicality will seem unfair. A second court dominated by Republican appointees choosing to end majority-minority redistricting coincidentally at the moment the GOP faces an electoral debacle will seem very unfair. The fact that Donald Trump and his party have broken norm after norm over the last 10 years, yet have plainly strengthened their hold on power over the same period, seems especially unfair, making traditional civic norms feel like a sucker’s game and a path to perpetual minority status.

 

To paraphrase Anton Chigurh: If the rules liberals followed brought them to this, of what use were the rules?

 

On Friday, after the Virginia Supreme Court’s opinion was published, even center-left normies were baying for judicial reform. The Democratic court-packing push is coming, beginning—but perhaps not ending—with SCOTUS.

 

The stupidity of court packing.

 

It’s already here, you might respond. It’s been here for a while.

 

True, and that’s a big hole in their commitment to liberalism. Some lefties were kicking around the idea after Ruth Bader Ginsburg died in 2020, and there was enough Democratic support for the concept in 2024 that Joe Biden proposed reforms to the Supreme Court as a campaign gimmick. (Although he preferred 18-year term limits for the justices to expanding the court.) Unquestionably, modern Democrats have been more gung-ho for court packing than Republicans have been.

 

But why would it be otherwise? Republicans don’t need to pack: They’ve dominated the Supreme Court for decades. Adding justices would cost the right more by delegitimizing the court’s rulings than it would benefit them by padding their majority. Democrats are in a different position, and so their calculus is different as well.

 

That calculus has gotten more radical in the weeks since SCOTUS’s decision on the Voting Rights Act. “Some folks are thinking [court] expansion, some folks are thinking [court] term limits or a rotation. I’m open to whatever—but I do know that there’s some real reform that needs to take place,” former Democratic Party leader Jaime Harrison told The Bulwark recently. He predicted that court packing will become a litmus test in party primaries, particularly in states like South Carolina with large black minorities who will resent being redrawn into red districts.

 

I understand the impulse, but I’m still flabbergasted that anyone would entertain it. Court packing is so foolish, and so pernicious, that I’m inclined to say it would be worse for America than anything Donald Trump has done in politics. The president has tried, and will continue to try, to destroy the constitutional order. Court packing would actually do it.

 

Even as a demonstration of partisan ruthlessness, I don’t see the point. What’s to be gained?

 

Any sentient human who lived through the tit-for-tat over filibustering judicial nominees during the last decade and the current tit-for-tat over redistricting will grasp that court packing would lead to the ne plus ultra of partisan reprisal cycles. Each time a party gained a trifecta in Washington, job one would be adding a few more justices to the court to offset the advantage gained by the other party after it added a few more justices the last time it had a trifecta.

 

Election cycles would revolve around court packing. If Democrats took power and added two liberals to the court in 2029, Republicans would campaign aggressively in 2032 on “rebalancing” SCOTUS by adding two picks of their own. If they won and followed through, the newly rebalanced Republican court would presumably overturn any liberal-ish rulings rendered prior to rebalancing. Democrats would have set off a judicial arms race for nothing more valuable than a few years of decisions that favored their side temporarily.

 

Meanwhile, the quality of Supreme Court nominees would collapse. Democrats would argue that it already has, but Neil Gorsuch and Amy Coney Barrett delivered a big loss to the president on tariffs this year and are likely to deliver another on birthright citizenship, as Trump well understands. There are such things as principled conservative judges, although I grant that they’re rarer than they used to be.

 

Once the seal is broken on court packing, converting the judiciary into a mini-legislature, principle will become a liability. No longer will Republican presidents be able to take a chance on a first-rate but unpredictable jurist like Gorsuch, impressive as he may be; dependable outcomes will completely replace judicial philosophy as a measure of qualification, leading to Supreme Court shortlists populated by nothing but Aileen Cannons and Emil Boves.

 

The United States will have a significantly worse federal judiciary for it, and the public will notice. As much faith as Americans have already lost in the court, wait until the parties are locked in a race to the bottom to find the biggest hacks possible on their side to fill vacancies. Any sense that the Constitution means something apart from what the court’s partisan majority at a given moment wants it to mean will evaporate. Cynicism about liberalism as a system that follows the rule of law will explode.

 

The hackification of SCOTUS will also affect how the president behaves, and not for the better. Once the high court is dominated by toadies who’ll rule however their party likes, the White House will be emboldened to press its luck on executive power grabs that even Trump (so far) hasn’t pursued. If you want a more authoritarian America, normalizing court expansion whenever a party has a trifecta in government is the surest way.

 

Even the virtue of a comparatively modest reform like term limits for justices largely eludes me. Assuming that it’s constitutional, how do Democrats expect to benefit from it? Sure, they wouldn’t have Clarence Thomases on the court for 35 years in the future, but they wouldn’t have Elena Kagans potentially on the court for 35 years, either. And once Supreme Court vacancies become predictable, we’ll run into the same problem I described earlier about elections revolving around them. Presidential candidates will feel pressure to announce their nominee before the election, which will incentivize them to choose hacks.

 

We actually had a presidential election not long ago during which a vacancy on the court hung in the balance. A lot of conservative voters who didn’t care for Donald Trump decided that having him fill Antonin Scalia’s seat was nonetheless preferable to letting Hillary Clinton do it. How’d that work out for Democrats? In a world in which there was no vacancy in 2016, does Trump still win?

 

Think hard on that question. Because it’s distressingly easy to imagine Republican voters weighing a similar conundrum in 2032, with a figure even more loathsome than Trump atop the party, and letting a new Supreme Court court-packing arms race erode whatever few remaining qualms they have about being led by abject cretins.

 

The burning village.

 

All of this is to say that, if you wish for a more classically liberal America, trying to beat the postliberals at their own game is a funny way to go about it. It might solve the asymmetry that I described at the start of this piece, but only by conceding the debate with Trumpists over which system of government the United States should follow.

 

I understand why Democrats feel obliged to do that with redistricting, having had a prisoner’s dilemma foisted on them by Republicans in Texas and left with no choice but to keep pace in the race to maximize House seats. But redistricting proves my point: At the end of this, even if Democrats “win” by gerrymandering a few more seats than the GOP does, we’ll have a country in which all but a handful of congressional races each cycle are uncompetitive.

 

That means more partisan performance artists in Washington, more perverse incentives against legislative compromise, and more public nihilism about American democracy. Postliberalism is a civic cancer regardless of which party benefits in a particular theater of political combat. It always amounts to burning the village to save it.

 

It would be nice if Democrats realized that well enough to avoid crossing lines that the GOP hasn’t yet crossed, like court packing. They don’t need to cross it: With three Republican appointees on the current Supreme Court over 70, it’s possible that the next Democratic president will get to fill a seat held by a conservative. Maybe Clarence Thomas will hang on too long, as Ginsburg did, or maybe John Roberts will decide that he’s not so eager to have a Republican president name his successor given the state of right-wing politics nowadays. All the left needs to regain power on the high court is a few election victories and a little luck.

 

But you know what they’ll say to that: We’ve been patient. We’re in a crisis. There’s no more time. The political energy in the party is where it is. They’re probably going to try to expand the court in 2029 if they gain a trifecta, and if they succeed there’ll be nothing left standing between America and banana republicanism. If you’ve had your eye on any foreign real estate, I suggest buying soon.