I recently spoke at Jesus College, Cambridge, to about 200 students, professors, and media figures about “Autocracy in America: Law and Politics in the Second Trump Administration.” The teaser for the event in a local blog was “US lawyer comes to Jesus,” which made me reassure my friends and family that the reports of my conversion were exaggerated. 

I reviewed the shocking departure from constitutional values and presidential norms of the second Donald Trump administration. In just 10 months, in a manner reminiscent of the Argentine junta of the 1970s, he has sent masked ICE agents in unmarked vans to seize presumed undocumented immigrants and deport them without due process to horrific prisons in El Salvador or to failed African states where they cannot speak the language. With a green light from the Supreme Court, many of these deportees were targeted based on skin color or their accents. He has unlawfully deployed the National Guard to U.S. cities. There are also the extrajudicial killings in international waters.  

The Brits I spoke with were most concerned about the drift toward autocracy in America, especially the targeting of political opponents, political gerrymandering, and the weakening of our constitutional system of checks and balances. Until the recent flap over the Jeffrey Epstein files release, Trump had full control over Congress, and it seems over the supermajority in the Supreme Court. Hopefully, nevermore. 

Slipping in the polls, stunned by fissures within the MAGA ranks, and set back by Democratic gains in the recent election—where Democrats won governorships by overwhelming margins and some local races by astonishing totals—Trump is pivoting like a whirling dervish. Under pressure from MAGA allies in Congress, he changed his position on releasing the Epstein files. Unless Pam Bondi succeeds in redacting some of the most embarrassing details, we may finally learn what happened in his 15-year relationship with the convicted pedophile.  

He turned to Zohran Mamdani, who was elected mayor of New York City on an affordability platform. Trump must realize that it is the high cost of living across America that, more than anything else, helped him beat Kamala Harris. And it is affordability more than anything else that explains the poor performance of Republicans earlier this month and Trump’s decline. The latest poll numbers show that Trump’s approval is below water. Only 33 percent of US adults approve of how he is managing the government, down from 43 percent in March.  

So, after labeling Mamdani a “communist,” he now tries to align with Americans who voted for him a year ago and supported Mamdani earlier this month. Trump loves winners and hates losers.  

Of course, affordability is a problematic issue for Donald Trump. To hang the bell on the cat, his inflationary tariffs have caused the economy to reach a point where healthcare and basic living expenses will be beyond many Americans’ means. 

Trump has fluctuated on Ukraine, and the negotiations are constantly changing. First, he thought Zelensky wasn’t sufficiently grateful. Then, while flying to Israel on October 12, he told reporters that, “if the war is not settled, we may very well transfer Tomahawk missiles to Zelensky. But at a meeting with Zelensky in Washington on October 17, five days later, Trump rejected the request. Later, after the Pentagon approved giving Ukraine the Tomahawks, he reconsidered and said he would sell Ukraine Patriot missiles, which can deter missiles and drones targeting military sites and civilians. Ultimately, he shifted back to calling Zelensky “ungrateful,” giving him until Thanksgiving to accept a 28-point “peace plan” that benefits Putin’s aggression, or face losing further U.S. support.  

November 30 marks Winston Churchill’s birthday. The deal Trump proposed is another Munich, rewarding aggression. Would Churchill have ever said that Trump brings us “peace in our time?” 

Foreign affairs expert Richard Haass is shocked by the Trump proposal. In a special edition of his newsletter “Home and Away,” he writes: 

The plan is extremely pro-Russian and one-sided. It favors, rather than punishes, Russia for this aggressive war of choice. It also requires Ukraine to rely not on itself but on Russia and the United States for its safety. The plan never should have been proposed; it definitely should not have been put into action. One can only wonder what influenced the American envoys—Steve Witkoff, Marco Rubio, Jared Kushner, and Secretary of the Army Dan Driscoll—when they created and promoted it. 

There is, as well, a sordid quality to it all. The United States is to receive compensation for any guarantees it provides and share in the profits generated by infrastructure projects in Ukraine funded by frozen Russian assets. It also pledges to sign an economic cooperation pact with Russia covering just about anything and everything. 

The position the President is putting Ukraine in is simply unconscionable. 

But get this last pivot. Last week, Trump said the plan was not America’s “final offer,” and Secretary of State Marco Rubio appeared to distance Washington from it before insisting just hours later that the US had authored it. In a Truth Social post, Trump strangely declined to blame Russia for the Ukraine conflict, instead aiming his ire at Kiev and European allies for failing to endorse his truce proposal. 

Meanwhile, a joint Ukraine-US statement says there’s now a whole new deal in play, which it calls an “updated and revised framework document”. The Financial Times quotes one of the delegates, though—Ukraine’s deputy foreign minister Sergiy Kyslytsya—who talks of a new 19-point plan with “very little left” from the original draft. If the rewrite is sensible, it will likely be unacceptable to Putin. Security guarantees for Ukraine are what’s key here. If negotiations break down, Trump may pivot again and supply the Tomahawks, or not.

Given the English parliamentary system, many at Cambridge were surprised that Trump could survive. Britain is accustomed to frequent changes in government. Between 2016 and 2024, it had four prime ministers. When it was revealed that its Defense Secretary John Profumo had an extramarital affair with Christine Keeler, who was also the mistress of a Soviet agent, Profumo was forced out, as was the Conservative government of Harold MacMillan in the next election.  

France likewise has a chaotic form of government. It has elected five prime ministers in the past two years. And they still do not have a budget. 

One of the chapels in the newly restored Notre Dame Cathedral is dedicated to the patron saint of Paris, Saint Genevieve. Beneath a statue of Genevieve is the inscription, which we would do well to take measure, “In Saint Genevieve the spirit of strength restores law and justice when they are flouted.”  

We need a Saint Genevieve in America. We have Trump for at least three more years, assuming he chooses to leave office in 2029, as the Constitution requires.  

British lawyers I spoke with were bewildered by the Supreme Court’s shadow docket, where summary orders that are said to be interim become law without explanation, opinion, or even revealing which justices voted for the final decision. 

Then, there are the pardons. The rule of law is under serious challenge in the United States. Trump has pardoned violent criminals convicted and serving out their sentences over the events of January 6 as though they were Thanksgiving turkeys. His recent pardon of Joe Lewis, the former owner of Tottenham Hotspur football club, who pleaded guilty to insider trading in the U.S. last year, is a case in point, and of great interest in the U.K. The move was the latest in a series of high-profile pardons by Trump. Last month, he pardoned Changpeng Zhao, founder of crypto exchange Binance, who had pleaded guilty to money laundering charges. He also commuted the sentence of former Republican congressman George Santos, who was convicted of wire fraud and identity theft. He pardoned his daughter’s father-in-law and appointed him ambassador to France. 

“This president views the pardon power as a personal tool that he can use when it benefits him personally, politically, or financially, without assessing whether the use of the pardon power benefits the American public,” Elizabeth Oyer, a former senior Justice Department attorney under Trump told The Washington Post. The “traditional rules and procedures about pardons have been thrown out the window,” Oyer said. She called Trump’s use of the pardon power a “crisis.” 

But there is some cause for optimism. Looking at the signs of recent events, we see what was once unimaginable just a few months ago. Trump may be losing his hold on the Republican Party. One of the most telling signs was the announcement by Representative Marjorie Taylor Greene, the Georgia Republican, that she is resigning her House seat rather than allowing herself to be treated by Trump like what she called “a battered wife hoping it all goes away and gets better.” 

For years, Greene was, of course, one of Trump’s most loyal and high-profile hard-right supporters, but she has recently broken with him. That included issues like health care and the government shutdown, as well as pushing for the release of Justice Department files on convicted sex offender Jeffrey Epstein. Because of her betrayal, Greene has become a target for Trump, who has repeatedly attacked her on social media, calling her “a traitor” and “a ranting Lunatic” who has gone “Far Left.” Early Saturday, he wrote on social media that her decision to leave Congress was based on “PLUMMETING Poll Numbers and not wanting to face a Primary Challenger with a strong Trump Endorsement.”  

As John Lewis, the great civil rights leader and Congressman, famously said, “Democracy is not a state. It is an act.” Trump is blinking; hope may be on its way.  

The post An American Comes to Jesus  appeared first on Washington Monthly.

As if the gerrymandering arms race weren’t already approaching DEFCON 1, a pending Supreme Court ruling this year could tempt more states to join the fray.

Last month, the Court heard oral arguments in Louisiana v. Callais—a case that could spell the end of Section 2 of the Voting Rights Act, the bedrock federal law that bars racial discrimination in voting. At issue is the constitutionality of Louisiana’s Congressional map and its two majority-Black districts (the result of a legal challenge to the original map, which had just one majority-Black district for a state that is one-third Black). 

White voters who brought suit claimed the new districts to be unconstitutional racial gerrymandering. The Court, however, has decided to look at an even broader question: whether Section 2 might be unconstitutional as well. 

As voting rights expert Joshua Douglas explains, the Court is unlikely to strike down Section 2 outright. That’s a headline this Court doesn’t want. But the Court could still gut Section 2—by allowing the disenfranchisement of minority voters as partisan gerrymandering, not racial discrimination. 

The result could be a fresh wave of redistricting efforts aimed at eliminating majority-minority districts like the one in question in Louisiana. While 34 percent of House districts were majority-minority in 2024, states like Tennessee, South Carolina, and Indiana have just one majority-minority seat. The loss of these districts would mean the loss of minority representation—and the loss of 60 years of progress toward racial equality. 

Joshua A. Douglas is a law professor at the University of Kentucky J. David Rosenberg College of Law. He is the author of The Court v. The Voters: The Troubling Story of How the Supreme Court Has Undermined Voting Rights and is working on a new project on voter turnout and nonvoters. He is the host of the award-winning Democracy Optimist podcast and writes the Democracy Optimist Substack. 

This transcript has been edited for length and clarity. The full interview is available at Spotify, YouTube and iTunes. 

***

Garrett Epps: Josh, as our readers know, you are our go-to guy on volatile voting questions, and we also love talking to you because you’re the “Democracy Optimist,” as you’ve described yourself. But I’m not sure you’re optimistic about a current case called Louisiana v. Callais. Could you tell us a little bit about that?

Josh Douglas: First, I’d like to point out that being a “democracy optimist” doesn’t mean I think everything’s great. It means I think there’s hope for the future. 

I’m not particularly optimistic about this case we’re going to discuss, but I think of democracy in the long term and what can we do to help sustain democracy, even given the troubled and turbulent times that we’re living through right now.

But let’s talk about Louisiana v. Callais, because I do think this could be the potential for a not great outcome at the US Supreme Court for the future of minority voting rights. 

Louisiana has six Congressional districts, and it’s got a population that’s about 33 percent Black individuals—so about one third minority. When Louisiana redrew its Congressional lines, it drew the lines such that only one of the six districts would be majority Black. So in the language of the lawsuits and the law, only one district out of the six would give minority individuals an opportunity “to elect a candidate of their choice.” 

A lower court said this dilutes minority voting strength and was a violation of the Voting Rights Act. So Louisiana drew a new map with two of the six districts being majority Black. It also did some funny line drawing to protect some of the incumbents—Mike Johnson, Speaker of the House, in particular. 

They passed a new map that was fairer in terms of minority representation, but then some white plaintiffs sued and said, “Hold up, Louisiana, when you drew this new map that has two of six majority Black districts, you thought about race too much.”

Separate from cases involving Section 2 of the Voting Rights Act, there’s another line of cases under the Equal Protection Clause of the 14th Amendment that basically says race can’t be the predominant overriding concern in redistricting. If Louisiana comes back and says, “We had to think about race to ensure that we were complying with Section 2 of the Voting Rights Act,” the plaintiffs can argue that this makes the Voting Rights Act itself unconstitutional. 

So this is a long windup to say that this case could stand for a very important proposition about the constitutionality of Section 2 of the Voting Rights Act. If the Court finds that the reason the state drew the map the way it did with two Black districts was to comply with the Voting Rights Act, and that that is in and of itself thinking about race too much, then the Court could say that the Voting Rights Act itself is unconstitutional.

Garrett Epps: Just so our listeners catch up, the “effects” test under Section 2 means that it doesn’t have to be intentional discrimination to be violation of the Voting Rights Act. Is that a fair statement?

Josh Douglas: Right. There are two ways to think about discrimination. First, there’s intentional discrimination—when someone decides to draw the lines purposefully in a way that will make it harder for Black individuals to elect a candidate of their choice. That would be smoking gun intent. 

The second is “effect.” In 1982, Congress updated the Voting Rights Act in response to a previous Supreme Court decision, City of Mobile v. Bolden. The Court in that case construed the prior version of Section 2 to only reach intentional discrimination. And Congress immediately responded, “No, what we want is Section 2 to reach effects.”  

One way to think about this in a more concrete manner outside of redistricting is a voter ID law. When states pass a photo identification requirement for voting, they’re usually at least  not trying to intentionally discriminate against minority individuals. But we know just based on living conditions, structural inequalities, the economy, that Black individuals are less likely to have an ID that qualifies. In some states, depending on the nature of the photo ID law, a photo ID requirement might have the effect of discrimination on the basis of race, even if the state legislature was not trying or even thinking about race in doing so. 

The lawsuit over the initial Louisiana map argued that even if you weren’t trying to make it harder for Black people to elect a candidate of their choice with only one majority Black district, the effect of the map violated Section 2.

Garrett Epps: And “candidate of their choice” is important because people sometimes hear these discussions and believe that you’re entitled to majority Black districts or majority Latino districts. That’s not exactly right. It’s something called “opportunity districts,” if I recall correctly. Could you talk a little bit about that?

Josh Douglas: We say “candidate of choice” because we don’t mean that Black people get to vote for Black candidates or that we measure a map as to whether it has the effect of discrimination by looking at the population of the area and then comparing it to the percentage of Black individuals who are elected. 

One good way to think about this is who was the “candidate of choice” for many Southern black Democrats in 2020? It was Joe Biden—a  white individual, right? It so happened that Joe Biden had policies and a message that really called to a majority of Black individuals, particularly in places like South Carolina. That is a good example of a white candidate who was the “candidate of choice” for Black individuals in those places.

We  don’t care how many minority individuals are in the legislature. We care whether those individuals were elected by minority people. Did they have the opportunity to choose someone that collectively they supported? It’s often going to be someone of the same race, but that’s not the test. 

Garrett Epps: You listened to the oral argument for Callais. I did too. I have a feeling a lot of it went over my head that didn’t go over yours. What was your feeling about the oral argument in that case?

Josh Douglas: I think it seems pretty clear that there are going to be five votes to cut back on the Voting Rights Act, Section 2, in some way. 

Now, the Court is probably going to want to avoid the headline of “US Supreme Court Strikes Down Voting Rights Act.” Chief Justice Roberts might want to do something that looks more mild, even though he has a long history of advocating against the Voting Rights Act. 

What the Solicitor General argued was that if the state can say that it’s trying to achieve a political end and not just a racial end, the map is valid. That is to say, under a Section 2 lawsuit, a valid defense would be politics, not race. The Court already adopted this basic standard in a case out of South Carolina from just a year or two ago, Alexander v. South Carolina State Conference of the NAACP, where the Court basically said that if Black people challenge a map because the state thought about race too much in drawing the lines, the state can justify it by pointing to politics. 

The U.S. Solicitor General suggested incorporating the same idea into the Voting Rights Act, Section 2, as a valid defense, and my suspicion is that’s where we’ll end up on this question.

Garrett Epps: That leads us into this whole issue of partisan gerrymandering. And to me, the weird turn that the Court has taken on that, in a case called Rucho v. Common Cause, is that they basically said that if all you’re trying to do is rig the system so that your candidates win, that’s okay. That’s partisan gerrymandering. If you’re trying to rig it so race is not dominant, well, that’s a different thing. We’ve now got this novel idea that if you’re trying to set up the system so that one party always wins, that’s okay. Where did this idea come from and how has it developed?

Josh Douglas: In that Rucho case in 2019 out of North Carolina, the Court referred to “constitutional partisan gerrymandering,” and I have always thought that phrase is very strange. How can partisan gerrymandering be constitutional under an understanding of the Constitution that protects equality, that protects democracy, and that preserves the idea of democracy being derived from the consent of the governed? 

Partisan gerrymandering had been challenged for years, and when the US Supreme Court had faced the issue, the Court has said, “Well, partisan gerrymandering or least some level of partisan gerrymandering, is unconstitutional, but we haven’t figured out how we tell the difference between something that’s perfectly fine and legal and something that goes too far.”  Anytime a legislature does anything, that’s inherently partisan, right? We kind of expect that. We expect when the legislature passes tax laws that it’s going to be partisan in nature. And if you don’t like the laws that the legislature passed, well, the solution is to vote the bums out.

So the Court has struggled with this idea that if everything a legislature does is partisan, and that the US Constitution gives state legislatures the authority to dictate the times, place and manner of federal elections, including the authority to draw the maps, how do we tell when that action is normal politics or politics gone too far?

The North Carolina map was clearly a far, far outlier. The map drawers didn’t hide what they were doing. They had 14 congressional districts, and they drew a map that was 10 strong Republican districts and four Democratic districts. And when the key Republican lawmaker who drew the map was asked why did you draw a map that was 10-4, he said, “Well, I couldn’t figure out a way to make it 11-3 and still comply with the “one person, one vote” standard. So it was implicitly partisan in terms of what they were doing, and the US Supreme Court basically said that’s fine. 

There are many problems with this—the first being that this is letting the politicians choose their voters instead of the other way around. 

You wish the number one goal of state legislators is to serve the people well, but their number one goal is to win reelection and keep their job. And what better way to do that than to draw the lines in such a way that it basically makes it impossible for the other side to win?

So that’s problematic in and of itself. But I think the problem has become supercharged in these cases involving race. Not only did the US Supreme Court say, “We’re not going to police partisan gerrymandering,” we’re now seeing states use politics as their defense to every other potential claim against their maps. And we’re seeing the Supreme Court essentially still defer to the legislature when using politics as the defense. 

In the Alexander case, the argument was that the state drew the map to pack as many Black voters in as few districts as possible, so that white people could control the rest of the state. That was the claim. The state was able to say, “Well, there’s a political reason for why we did this.” And the US Supreme Court said, “Okay, that defeats the plaintiff’s claim.” I fear a similar standard is going to be set out in Louisiana v. Callais.

The headline would be that the Court “guts” Section 2 or cuts back on it but doesn’t strike it down. But the practical effect would be that it would be extremely difficult to bring a Section 2 claim against a map if the state could justify it based on its partisanship and partisan arguments.

Garrett Epps: As you look at what Louisiana did or South Carolina did, how far have we come from that period when the Voting Rights Act was needed to hold back legislators who were going to explicitly discriminate? 

Josh Douglas: This is where my democracy optimist viewpoint will come in a little bit, which is to say that we’re definitely way better off in terms of equality in voting in representation since the early 1960s. That’s kind of undeniable, right? We don’t have explicit literacy tests anymore. Registration rates between minority individuals and white individuals have come a lot closer. It’s not exactly on par, but the registration gap is not as big. The turnout gap is not as big. It still exists, but it’s not as big. So I think we can say that we have come a long way, but that doesn’t mean we’re done. And just saying there’s been progress doesn’t mean that progress is finished. 

If the Voting Rights Act gets cut in these ways, that’s going to set us back. But my democracy optimist mind sees that longer history and sees that, okay, we need to find different tactics or new ways to tackle the problem of what Justice Ginsburg referred to as “second generation barriers” to voting. I think we’ve cleared and fixed many of the first generation barriers—the explicit attempts to defeat minority voter opportunity and representation. But that doesn’t mean we’re done.

The post How the Supreme Court Could Turbocharge Gerrymandering appeared first on Washington Monthly.

A paradox haunts books by contemporary Supreme Court justices. Publishers give the justices huge sums—$2 million, in the case of Justice Amy Coney Barrett—to write monographs insisting that Supreme Court judging is apolitical. Publishers provide these guarantees because Supreme Court judging in the United States is hyperpolitical: Partisans can be trusted to buy and praise the books written by justices on their side of the political fence. 

This paradox has a predictable literary consequence: The books are almost always bad. Recent books by Justice Neil Gorsuch and former Justice Stephen Breyer were widely and rightly panned by reviewers, though purchased in large numbers by partisan readers. Neither book explained why publishers, bookstores, producers, and influencers roll out red carpets for people whose primary job is supposedly to follow, to the letter, instructions given in past centuries.

Justice Barrett’s new book, Listening to the Law, meets the low bar set by her colleagues. She promises an accessible (not scholarly) insider’s guide to Supreme Court practice. The justices, Barrett tells us, like one another, attend parties together, and manage to disagree without rancor. Judging, she insists, is a matter of humility, of listening carefully to the law made by others. Apart from an informative discussion of textualism, the method with which Barrett is most associated, the book offers no account of why serious scholars—including, one suspects, Professor Barrett—think actual judicial practice is far more complicated than simply discovering (or “listening to”) the law made by others. The effect is less analysis than campaign biography, a self-presentation in the style of politicians explaining why they can be trusted with power.

The resemblance to political memoir is not accidental. Barrett, like her colleagues, aims to humanize herself. She assures readers that her pre-Court “life was good, but like anyone’s, it was not perfect”; that “these last years of being in the public eye have toughened me up”; that “all human relationships depend on kindness and humility.” Such bromides could have been lifted from a stump speech. Justices, like candidates, must persuade their audiences that they are relatable, trustworthy, and possessed of the moral fiber to do their jobs. The difference is that candidates eventually face voters. Justices, armed with life tenure, face only history.

Indeed, one of Barrett’s most insistent themes is precisely that life tenure guarantees independence. “The Constitution’s guarantees of life tenure and salary protection for federal judges,” she writes, “are designed to fortify a judge’s resolve to stand firm against the tide of public opinion.” The only evidence she provides for this claim is Alexander Hamilton’s assertion, made more than 200 years ago in Federalist no. 78, that “nothing will contribute so much as [life tenure] to that independent spirit in the judges which must be essential to the faithful performance of so arduous a duty.” Throughout, Listening to the Law celebrates the “genius” of the Framers. What was good enough for 18th-century minds ought to be good enough for 21st-century citizens.

An accessible guide to constitutional practice might note that very few constitutional democracies grant judges life tenure, and those that do (Canada and the United Kingdom) still require retirement no later than 75. Those judiciaries seem at least as independent as federal courts in the United States. A Brennan Center for Justice study by Lisa Hilbink of the University of Minnesota found that other democracies achieve judicial independence through shorter terms, mandatory retirement, or both, with no decline in performance. Indeed, the supreme court of Israel, which imposes mandatory retirement no later than 70, has far more aggressively challenged Prime Minister Benjamin Netanyahu’s policies than the U.S. Supreme Court has challenged Donald Trump’s policies. Similarly, the lack of life tenure has not inhibited the supreme courts of India and Germany from declaring constitutional amendments unconstitutional. 

Equally central to Barrett’s civics is the notion that judicial review exists to protect minorities from majority tyranny. Aware of our fallibility, the wise Framers of the Constitution created an institution that would ultimately declare segregated schools unconstitutional, protect free speech from local censors, and prevent police officers from physically abusing persons suspected of crime. The trouble, which Barrett conveniently neglects, is that the most difficult and consequential cases pit one minority against another. Consider Fulton v. Philadelphia (2021), which concerned whether the city could exclude a Catholic foster care agency that refused to work with same-sex couples. Both parties plausibly claimed to be protecting vulnerable minorities. Philadelphia argued that it was protecting LGBTQ families from discrimination; the Catholic agency argued that it was being discriminated against for its religious beliefs. 

History also undermines the slogan. Before Brown v. Board of Education (1954), it is difficult to identify a Supreme Court decision striking down a federal law most Americans would now say protected deserving minorities. More often it went the other way: Dred Scott (1856) denied Congress the power to ban slavery in the territories; the Civil Rights Cases (1883) voided Reconstruction-era protections; Pollock (1895) struck down the federal income tax; Carter Coal (1936) invalidated New Deal reforms. Slaveholders, too, claimed the mantle of an oppressed minority. As today, one person’s “worthy minority” was another’s entrenched interest, and few historians would tally the Court’s record as consistently protective of the vulnerable.

The deeper problem is not just that the Court often failed in practice, but that it has never had a clear method for identifying which minorities deserve protection. That choice is inherently political, so Barrett just ignores it. Listening to the Law never even hints at the difficulty of identifying the minorities that merit judicial protection, or whether the history of judicial review evinces any tendency for courts to make the right choices in this regard. Once one looks at the actual record of judicial review, what emerges is less a steady defense of the downtrodden minorities than a scattershot series of interventions, many of them on behalf of entrenched elites. 

As Mark Tushnet has noted, judicial review amounts to “noise around zero,” producing essentially random deviations—sometimes good, often bad—from what the political system would otherwise generate. When a pattern can be discerned, it is a tendency to side with the executive over Congress and with legal elites when they differ from the less educated or less wealthy. Professor Barrett is almost certainly aware of this scholarship, but Justice Barrett leaves readers with the comforting civics textbook version, assuring them that courts stand reliably with the powerless when in fact the historical record points to something closer to the opposite.

Listening to the Law likewise assures readers that justices decide cases on law, not politics. A few anecdotes about particular justices, Barrett’s willingness to sustain death sentences despite her moral opposition to capital punishment, and statistics demonstrating that approximately half the decisions the justices make are unanimous constitute the entire evidence for this assertion. No scholar paints with so broad a brush. A high percentage of the Supreme Court’s unanimous decisions concern matters such as the proper interpretation of the Employment Retirement Income Security Act (ERISA), a matter on which most people who are not retired have weak if any policy preferences. 

As politically conscious citizens observe, when the justices decide major cases on which the political parties divide, the justices appointed by Republican presidents almost always take positions favored by the Republican Party and the justices appointed by Democratic presidents almost always take positions favored by the Democratic Party. Consider abortion, campaign finance, and the recent Supreme Court practice of using the emergency, or shadow, docket to block lower federal court rulings temporarily enjoining Trump administration executive orders. A citizen who bet at even odds that the justices would vote consistently with the president that appointed them would gain a fortune. When exceptions exist, the tendency is for the justice to side with more moderate members of the party against more extreme members. That some Roberts Court justices may side with the Wall Street Journal editorial page over Donald Trump when the justices rule on tariffs hardly demonstrates a court above politics.

The free exercise clause offers perhaps the starkest example of politics shaping judicial decision making. During the second half of the 20th century, conservative originalists were committed to the proposition that the free exercise clause as originally understood provided religious believers with no exemptions from generally applicable laws. This point was emphasized in the Reagan administration’s Guidelines on Constitutional Litigation in 1988, a core statement of conservation constitutional principles at the time. Justice Antonin Scalia made it explicit in Employment Division v. Smith (1990), holding that worshippers had no right to use peyote in religious ceremonies when Oregon law banned the drug entirely. 

By the early 21st century, however, evangelical Protestants—core members of the Republican coalition—became the typical free exercise claimants. A miracle promptly occurred. Republican-appointed justices discovered that the 1791 clause had always guaranteed exemptions, or that laws burdening evangelicals were exceptions to the no-exemptions principles. Who knew? Religious organizations may now engage in what would otherwise be considered employment discrimination by designating employees or teachers as ministers, as decided in Our Lady of Guadalupe School v. Morrissey-Berru (2020). 

The near-perfect correlation between partisan affiliation and votes goes unacknowledged in Listening to the Law. The message is simple: Trust us.

This, finally, is the problem with the genre itself. By presenting judging as a realm of pure law, insulated from politics, the justices offer a picture so implausible that it makes the opposite claim—that judging is nothing but politics—more credible. In their effort to inspire confidence, they deepen cynicism. If the only choices are civics class pieties or unvarnished partisanship, many readers will conclude, not unreasonably, that the latter is closer to the truth. Publishers, of course, will not mind. Judicial celebrity sells, and the market for reassurance is deep. Barrett closes with optimism that the constitutional project will endure, with no hint of constitutional crisis or recognition that many Americans believe one already exists. That is for serious studies of law and politics. Barrett’s purpose, like that of her colleagues’ books, is to persuade readers that all will be well so long as the justices remain in charge.

The post Justice Barrett’s Campaign Biography appeared first on Washington Monthly.

“On a chilly Saturday, December 13, 1952,” the historian Jill Lepore recounts in her new book, We the People, “the nine justices gathered in the first-floor conference room of the Supreme Court Building to begin their deliberations in Brown v. Board.” 

That judicial conference would eventually produce a blockbuster decision—one that set the tone of constitutional law for generations—but many Americans might have thought the justices were missing the real action that day, which was nearby at the National Archives: “twelve police motorcycles and four soldiers carrying submachine guns, followed by a bayonet-wielding honor guard, two military bands, two armored tanks (one of which broke down en route), and thirteen hundred servicemen and women.” At the center of this display, riding in their very own tank, were the parchment copies of the Declaration of Independence and the U.S. Constitution. The documents remain on display in the National Archives today, reverently viewed by visitors, much as Mao Zedong sleeps in his tomb in Tiananmen Square.

Lepore’s lively book makes clear what should be obvious: Whatever the U.S. Constitution is, it is not that heavily guarded parchment, and not even what is written on it. Nor is it, really, the amended text after 27 post-ratification changes, the most recent in 1992. The Constitution is a protean and elusive text, not simply because it has been formally changed but perhaps even more powerfully because it has been imagined and reimagined by generations of Americans; it is a collection of sacred wisdom understood—if at all—as much by reference to truths it does not speak as by the 7,500 words it actually contains, an object of reverence, fear, and superstition, not susceptible of final and authoritative interpretation by any citizen or judge. Some generations see it as on the point of death; others see it as bursting forth renewed by flame. 

No one, however, quite agrees on what it is. 

Lepore—one of the most graceful, talented, and original American historians writing today—retells a story told before in books like Akhil Reed Amar’s America’s Constitution. But she tells it differently. Lepore suggests that the nature of the Constitution is to be sought not in what it says, or even what it doesn’t say, but rather in what it could say if it were changed. Change, she argues, is its enduring nature and the essence of its revolutionary spirit: “By far the most radical innovation of the U.S. Constitution, and of state constitutions, was the provision they made for their own repair and improvement by the people themselves.” Lepore thus tells the story of the Constitution not simply through the changes that have been made in it, but through the failed attempts that have been made to amend it and the complex aftereffects of those failures.

The result is generous, highly original, and consistently fascinating—de-emphasizing the stories of the so-called Founding Fathers, and the amenders, and forwarding those of ordinary people, some of whom made constitutions of their own, from the multiplicity of state constitutions to the constitutions of Native nations like the Cherokee to the people of American colonial possessions like Puerto Rico and Hawaii. We the People is also, as a matter of constitutional discourse, profoundly, indeed joyously, subversive. 

Lepore fires a devastating volley at the foundation of most legal scholarship and the subtopic within it called “Constitutional History”—the successful restriction of “valid” source material to an easily managed set of sources, mostly bound in matching sets of court reporters. That narrowing makes the construction of arguments within the field tidy and quick, centering the writings of long-dead judges. (Think of Justice Samuel Alito, in his savage attack on abortion rights cheerfully citing Henry de Bracton’s 13th-century De Legibus et Consuetudinibus Angliae while tiptoeing, with daintily pursed lips, past the voluminous record of American women’s actual experience over two and a half centuries.) Lepore savages the ongoing constitutional mummery that its adherents call “originalism”—the philosophy that reigns, at least when convenient, over the Supreme Court and an increasing share of the legal academy. Lepore defines “originalism” as “insistence that the only way to interpret the Constitution is to read it the way a probate judge reads a dead man’s last will and testament.”

“Originalism follows rules of evidence that no historian could accept,” she writes, quoting Robert Bork’s edict that private writings by the powerful and the powerless “count for nothing.”

“For the historian, unpublished documents written by less powerful people do not ‘count for nothing’; in fact, they count for rather a lot.” 

With that, Lepore opens the door to a cornucopia of sources, characters, and stories that even the best constitutional histories often omit—documents like the 18th- and 19th-century constitutions written by Native nations; the forward-looking constitutions written by the biracial Reconstruction governments after the Civil War; Ke Kumukānāwai a me nā Kānāwai o ko Hawai’i Pae ‘Āina, the written constitution decreed by Hawaii’s King Kamehameha III in 1840, altered by his successor Kamehameha V, and forcibly replaced in 1887 by the white colonialist “Bayonet Constitution”; and La Constitución del Estado Libre Asociado de Puerto Rico, which was written for the American colony by a convention legally barred from even discussing independence and which cannot be amended without Congress’s approval. 

The complex history of amendment begins even before the Constitution was ratified, because state conventions that approved the new constitution did so while loudly demanding the immediate adoption of a bill of rights. When James Madison produced a proposal for one in the First Congress, the members held a consequential debate that Lepore characterizes as “incorporationists” versus “supplementalists”; the two sides differed on how amendments should be treated. Madison wanted amendments to appear as changes to the document itself; opponents insisted that they should appear at the end of the document, leaving the original text inviolate. “The supplementalists prevailed,” she writes, “apparently because they threatened to reject the amendments if the incorporationists didn’t stand down.” Two centuries later, this mistake (and mistake it was) looms large in our history—because, among other things, the Second Amendment would seem like a different animal if it were written into Article I, Section 8, Clauses 11–16—setting out in detail the extent, and limitation, of Congress’s powers over the militia. That context would suggest to any reader that “the right of the people to keep and bear arms” also concerns the militia, not Antonin Scalia’s imaginary free-floating individual right. 

A lot of dead people might be alive today if Madison had won that fight. Constitutional debates are almost always matters of life and death. (Brown v. Board, for example, did lead directly to blood on southern pavements and armed soldiers desegregating schools.)

After that beginning, We the People tells the story of the fight for amendments from 1789 to 1992. Poignantly enough, the most recent successful amendment—concerning congressional pay—was one proposed by Madison himself, which took two centuries to glean the necessary three-quarters approval of states. But the book does the signal service of making this old story new, and peopling it with characters who have been recognized only dimly, if at all, from the Founding: Sconetoyah (Cherokee), Tobocah (Choctaw), and Muckleshamingo (Chickasaw) represented Indigenous populations who knew something was up in Philadelphia (they arrived during the Constitutional Convention to ask politely for inclusion, and got none). From the Civil War era: Francis Lieber, the farsighted German immigrant who foresaw that slavery would tear the Union apart and that constitutional amendments would be needed to restore it; and Maria Henrietta Pinckney, described by her contemporaries as “a woman of masculine intellect” and a stalwart defender of slavery and constitutional nullification. From the Progressive Era: Charles Beard, whose 1913 book, An Economic Interpretation of the Constitution of the United States, pointed out that the men who drafted the Constitution had adroitly protected their own interests before anyone else’s—and became “the most influential and most controversial book ever written about the Constitution.” And from the 1950s, Ethel Payne, “five foot three, and indomitable,” who as a reporter for The Chicago Defender witnessed the oral argument in Brown and the birth of the movement to amend the Constitution to repeal the decision—and then, like a kind of journalistic Zelig, jetted off to Bandung, Indonesia, to cover the historic conference that she called “a summoning of the darker people of the world.” Payne’s story is paired with that of David Mays, the quiet lawyer from Richmond, Virginia, “a child of the Lost Cause” who devoted much of his life to advocating for the reversal of Brown, and laid the foundation for the dawn of originalism.

Most haunting to me is Lepore’s poetic invocation of Lydia Kamakaeha Lili’uokalani, the last monarch of independent Hawaii, who for the crime of seeking to restore the kingdom’s true constitution spent the last years of her reign “locked in an upstairs bedroom in the royal palace as if she were Rapunzel” and was denied any reading material, except what could be smuggled in disguised as wrapping for flowers. 

We the People in outline follows the main channel of American history—the battle over federal power, then over slavery and Reconstruction, then over regulation of the economy and finally over civil rights and human equality. The book also recounts the story of successful amendments—1913, for example, brought us the elected Senate and the income tax, both adopted by overwhelming popular mobilization. She also narrates some lost ones that fit the master narrative—the proposed Thirteenth Amendment of 1861, passed by a desperate Congress and endorsed by a desperate Abraham Lincoln, which bargained the South’s remaining in the Union for a guarantee that slavery could never be outlawed. The failure of the Equal Rights Amendment, despite overwhelming support, supplies a mournful chapter. I regret the omission of some that represent digressions from the master narrative—most notably yet another lost Thirteenth Amendment, proposed by the two houses of Congress in 1810, which would have stripped citizenship from any American who accepted a noble title or pension “from any emperor, king, prince or foreign power.” (Though never ratified, this amendment was mistakenly included in a number of printed copies of the Constitution; to this day, I sometimes meet folk from the Pacific Northwest mountains who assure me that this amendment renders lawyers unconstitutional.) I wish, too, that We the People gave a fuller account of the popular mobilization that pushed the Seventeenth Amendment (popular election of senators) through a reluctant Congress, and mentioned my favorite “Founding Father,” Joseph Bristow of Kansas, who sponsored the popular-election amendment in 1911.

The book ends with the melancholy story of the end of amendment and the rise of originalism—the replacement, in the American mind, of a “living document” with Scalia’s Constitution that is “Dead, dead, dead!” Originalism emerged in 1971, around the time that entrenched partisanship made formal amendment impossible. As the nation lost the will and creativity to remake the Constitution (for example, by abolishing the Electoral College), it began to shake itself to pieces, and has reached a crisis that looks as if it may be its death agony.

Lepore is an American, though, and optimism is the fundamental American creed. She ends the book, not in despair—“a philosophy of doom is an undemanding doctrine, and doomsday books are easy to write”—but with a call for a fundamental remaking of the Constitution not simply to democratize our policy but to include among its constituents the natural world itself:

Americans might learn again to amend, or else they could invent a new instrument to guarantee liberty, promote equality, nurture families, knit communities, thwart tyranny, and avert the destruction of a habitable earth. Constitutions began with stones and seashells, with old books and oak trees, with sheepskin and goose feathers. From the burning, scorched earth, new ideas might arise once more, seedlings, sprouting, tendrils winding to the sun.

The post Constitution in Progress appeared first on Washington Monthly.

On October 7, the conservative majority of the Supreme Court appeared eager to set back Colorado’s LGBTQ-affirming legislative legacy—and gay and transgender rights more broadly. During oral arguments in Chiles v. Salazar, the Court’s conservative justices raised concerns about the state’s statutory ban on conversion or “reparative” therapy, on the books since 2019, and its apparent threat to Christianity-informed free speech. 

On the evidence of the Justices’ questions, a ruling against the Colorado statute seems likely. That setback would follow the Court’s anti-LGBTQ decisions from last term: Skrmetti v. Tennessee (2025), which supported bans on gender-affirming health care, and Mahmoud v. Taylor (2025), which allowed religion-compelled parents to opt their children out of public school story hours featuring LGBTQ-affirming books.  

“Conversion therapy” attempts to alter a person’s sexual orientation or gender identity so that they comply with anti-LGBTQ ideological commitments. As a therapeutic practice, mainstream medical professionals have widely rejected it—and it has been outlawed in over 23 states. Mental health professional organizations agree that identifying as LGBTQ is not a mental disorder, and that attempts to change someone’s sexuality or gender identity are at best ineffective and at worst actively harmful to patients. The practice includes anything from “talk therapy” that treats LGBTQ individuals as in need of a “cure,” to electric shock or pharmaceutical interventions. These practices persist, largely underground, in defiance of current bans. 

Colorado’s law bans medical interventions that cast LGBTQ individuals as mentally ill. A former conversion-therapy client of Colorado’s Focus on Family described the ban as “guiding people to the best version of themselves” by nurturing practices that are “beneficial, healing, and can save lives” and outlawing “therapy where [the] only…outcome considered successful is harmful.” In other words, the practices prohibited by the ban are those focused on the singular goal of encouraging a client to reject their LGBTQ identity.   

Kaley Chiles, a counselor licensed by the state to treat addictions, argues that the Colorado law violated her First Amendment rights by outlawing her ability to counsel sexuality- and gender-questioning youth who are seeking Christianity-informed therapies to help them resist their same-sex sexual desires and their gender dysphoria.  

Colorado is no stranger to Supreme Court fights over LGBTQ rights. The state is, paradoxically, home to the most vociferous anti-LGBTQ movement leaders and the most progressive LGBTQ-affirming policies—making it ripe for contentious legal and political rifts. In Romer v. Evans (1996), the Court overturned a 1992 voter initiative that branded Colorado “the hate state.” The ballot measure, organized by the Colorado Citizens’ Commission, barred gays and lesbians from seeking any state or municipal legislative protections from sexuality-based discrimination.  

Colorado quickly shed its “hate state” identity by updating its anti-discrimination measures in 2008 to include sexual orientation and gender identity. Yet almost ten years later, the state was back in Court—this time in a conflict with Christian wedding service providers. In a 2017 case, Masterpiece Cakeshop v. Colorado Civil Rights Commission, the Supreme Court sided with a Colorado baker’s claim that the state’s nondiscrimination laws violated his Christianity-informed expressive rights to refuse to bake a wedding cake for a gay couple’s upcoming nuptials. Six years later, in 303 Creative v. Elenis, a Christian wedding videographer blamed the state for “chilling” her desire to design wedding websites exclusively for heterosexual couples. Once again, the Court rebuked the state’s LGBTQ nondiscrimination laws in favor of Christian business owners who oppose marriage equality.  

Chiles raises parallel substantive questions about the double helix of free exercise and free speech. Does the conversion therapy ban impose similar harms to Christianity-informed free speech that the Court outlawed in Masterpiece Cakeshop and 303 Creative? 

Assuming Chiles has standing to sue (a subject of some disagreement), the Court will have to determine whether her claim should be reviewed under the highly demanding “strict scrutiny” test, and, if “strict scrutiny” is warranted, whether the Court should send the case back to the lower Court or render judgment now. Two lower federal courts agreed with the state that the ban regulates medical conduct rather than speech and thus should be reviewed under the forgiving “rational basis” standard, as are other laws regulating medical care.  

Under a rational basis review, the state only needs to provide a reasonable rationale for banning conversion therapy—one that can easily be justified within the state’s normal efforts to protect the health and welfare of its citizens. Under strict scrutiny–a standard of review used only when a fundamental right has been abridged or when a suspect or spurious social classification (such as race or religion) is targeted by the legislation–the state faces a much higher evidentiary burden. In the case of a ban on conversion therapy, they must present evidence that Chiles’s type of talk therapy harms children.  

If the Court agrees with Chiles’s request for strict scrutiny, it has two options: to decide the case under this higher standard of review immediately or to send it back to the lower courts, as is typical, with instructions to reevaluate the evidence under the more rigorous standard. Chiles requests that the Court decide immediately, as it did last term in Mahmoud v. Taylor (the case involving parental opt-outs for school-based story hours with LGBTQ-affirming books), to address the supposed “irreparable” and “ongoing harm” that legislation and pending litigation have caused Chiles and her potential clients.  

Speech v. Conduct 

At oral argument, Justice Ketanji Brown Jackson pressed James Campbell, Chiles’s lawyer, to explain how her therapy differs from the many other medical interventions the state can regulate, as the Court held last term when it affirmed Tennessee’s gender-affirming-care ban. While quizzing Campbell, Justice Jackson asked “it’s just a little puzzling to me that she would stand in a different position than a medical professional who has exactly the same goals, exactly the same interests, and would be prescribing medication for that rather than talking to the client.” Cambell, however, argued that Chiles is engaging only in a “back-and-forth, one-on-one conversation [that] is a form of speech.” Talk therapy is speech, therefore, protected by the First Amendment. The medical interventions outlawed by Tennessee—puberty delaying medications, hormone replacement, and gender-affirming surgeries—are conducted. As such, Campbell argued that they do not fall within the First Amendment’s protections, while Chiles’s therapy does. 

If considered as pure speech, a ban on Chiles’s therapeutic methods would infringe on her fundamental rights and require review under strict scrutiny. Under this standard, Chiles argues, the state would need to demonstrate how talk-focused conversion therapy harms minors sufficiently to justify an otherwise unconstitutional restriction of free speech and exercise rights. According to this standard, Chiles contends that the statute would almost certainly fail. While they may have evidence that conversion therapy in general creates risks for young patients, as Chiles states, there is little empirical proof that talk-focused therapy, like the one she provides, causes any risks. An amicus brief from a professional organization supports the state’s position. It cites examples of dangers linked to different forms of conversion therapy, mainly because these therapies portray LGBTQ identities as abnormal.  

Standard of Care 

Oral arguments raised questions about the evidence that future courts might require as they are asked to review medical care. Colorado’s attorneys argued that the law follows “standard of care”—a legal term referring to the level of practice by professional practitioners–in the treatment of young people struggling with sexual and gender identity. Deviations from “standard of care,” argued the state, can be regulated or barred through legislation as a matter of ordinary state protections.  

Conservative justices argued differently. Justice Amy Coney Barrett questioned the meaning of “standard of care” when experts offered “competing strands” or when states disagree. Do states just “pick a side?” she asked. Justice Samuel Alito wondered what the role of the Court should be in accepting medical expertise, “when the medical consensus has been politicized” or “taken over by ideology.” These inquiries raise questions about the capacity for future Court cases to disregard “standard of care” and medical consensus.  

Justices on both sides of the ideological divide seemed to agree that a state cannot target therapists like Chiles who provide voluntary treatment to patients explicitly seeking to resist same-sex sexual attraction or to accept their gender dysphoria by embracing their birth-assigned gender. Justices Elena Kagan and Alito both contended that (as Kagan explained) “if a doctor says ‘I know you identify as gay and I’m going to help you accept that’, and another says ‘I know you identify as gay and I’m going to help you change that,’ and one of those is permissible and the other is not, that seems like viewpoint discrimination.”  

Interestingly, Chiles’s attorneys agreed that the argument would hold on “the flip side”—in cases where a state may want to ban gender- or sexuality-affirming care that is talk-based. Implying that, if Colorado’s law is determined unconstitutional in its application to talk therapy, conservatives may not be able to outlaw professional speech that affirms gender identity or sexuality—in the context of treatment and beyond. 

This raises questions—especially as conservative lawmakers, including President Donald Trump, seek to punish individuals for engaging in speech that criticizes ICE or Charlie Kirk, or promotes “woke” pedagogies. If Chiles wins, how will that precedent apply to LGBTQ-affirming or other targeted speech?  

The post The Gay Conversion Therapy Case and Its Discontents  appeared first on Washington Monthly.

The fate of the Voting Rights Act, at issue in Louisiana v. Callais, might depend on a devastating decision from six years ago.  

In 2019, in Rucho v. Common Cause, the Supreme Court refused to entertain partisan gerrymandering claims, declaring that “a jurisdiction may engage in constitutional political gerrymandering.” That statement could now insulate maps that harm minority voters—a move that would hollow out Section 2 of the landmark 1965 law. 

Section 2 of the Voting Rights Act is a nationwide provision that prohibits any voting rule that “results” in discrimination based on race. Congress adopted this “effects” test in 1982 after the Supreme Court interpreted the prior version to reach only discriminatory intent. Under the current formulation, intent is irrelevant; the question is whether the effect of a rule negatively impacts minorities. In 1986, in Thornburg v. Gingles, the Court set out a test that it is has used ever since to determine whether a map dilutes minority voting strength: Can the plaintiffs draw a different map that creates additional, compact majority-minority districts, is there racial bloc voting—that is, does a white majority tend to outvote a racial minority’s preferred candidate—and, under the “totality of the circumstances,” is there a history of discrimination in the state? That test has allowed courts to root out the worst abuses, especially in the South, where minority voters are often prevented from banding together and electing a candidate of their choice. 

Last term, the Court heard a Louisiana case regarding this provision. The state has six congressional districts, and roughly 33 percent of its population is Black. However, in the initial map the state drew, Black people were the majority in only one district. Applying the Court’s test for Section 2, a lower court ruled that the map violated the Voting Rights Act. To remedy the problem, Louisiana drew a new map with two majority-Black districts.  

Then, white plaintiffs sued, saying that the map was an unconstitutional racial gerrymander because the state considered race too much. The state claimed it sought to remedy the Section 2 violation while protecting two key Republican incumbents. But instead of ruling whether Louisiana’s consideration of race in the new map was unlawful because it was the predominant consideration, the Court set the case for re-argument this term, raising a much broader question: if Section 2 requires states to consider race when drawing maps, is Section 2 itself unconstitutional? Can Congress use the Fourteenth and Fifteenth Amendments, ratified after the Civil War, to ensure equality?  

The answer to that question should be easy: Congress has full authority under these Reconstruction Amendments to require racial equality in voting. A suggestion that Section 2 is unconstitutional is simply another attempt to erase race from the law, even when doing so would ignore the continuing effects of discrimination. 

Yet the Court may not state explicitly that Section 2 is unconstitutional, especially if the Court’s majority can achieve the same goal by twisting the test in a way that makes it virtually impossible for a plaintiff to win. The Court already used this tactic in 2021 in a case out of Arizona, crafting an arbitrary test for claims of outright vote denial under Section 2. It could apply a similar dismantling strategy to Section 2 claims related to maps that dilute minority voting strength.  

Early in the Louisiana v. Callais oral argument, Justice Samuel Alito asked a key question that might be the whole ballgame: “Under Rucho, isn’t seeking partisan advantage also an objective that a legislature may legitimately seek?” His query suggests that the Court might neuter Section 2 by saying that partisanship is a valid defense to a map, even if the plaintiffs show that the lines harm minority voters.  

Janai Nelson, a lawyer for the NAACP Legal Defense Fund, deftly and correctly answered that question at oral argument: “Not if it comes at the cost of the equal protection principle and the Fifteenth Amendment’s prohibition on race discrimination in voting.” Put differently, a state should not be able to cite a partisan goal to insulate itself from its map harming minority voters. Otherwise, the promise of the amendment, which prohibits racial discrimination in voting rules, would become a dead letter.  

Several justices, however, kept returning to the idea that partisanship is a “neutral” districting principle that a state may validly promote. Justice Alito once again noted that because of Rucho, a state could consider partisanship and incumbent protection as a “permissible legislative objective.” Justice Brett Kavanaugh twice asked the lawyers about the idea that the Court should hold that “Section 2 plaintiffs cannot claim a lack of equal openness where politics, rather than race, is the likely reason for the state’s refusal to create a majority-minority district.” Justice Kavanaugh did not tip his hand at how he was thinking about that issue, but his repeated mention shows that he believes it is a worthwhile argument to consider. Justice Neil Gorsuch, too, highlighted a state’s political objectives as a key consideration.  

But that inquiry turns Section 2 of the Voting Rights Act on its head and, as Nelson pointed out in response, “would swallow Section 2 whole” because “party cannot trump the responsibility of states to ensure that all voters have an equally open electoral process.” 

The case, then, should be about race, not partisanship. It might make sense to consider a state’s partisan motivation when asking about its intent (though courts should strike down maps drawn to achieve a partisan goal). Still, partisanship should have no bearing on whether the map has a discriminatory effect. Nothing is “neutral” about a state seeking to achieve a political end by skewing the maps. And as Travis Crum, a law professor at Washington University in St. Louis, pointed out, elevating partisanship isn’t a traditional redistricting criterion—it’s a judicial invention from Rucho only six years ago. 

If the Court says that partisanship insulates a state from a Section 2 claim of discriminatory effect, then this pivotal provision will have much less utility. It will be another nail in the coffin of voting rights protections, part of a long line of recent cases in which the Court has narrowed the scope of the Voting Rights Act and unduly deferred to states in their voting rules.  

Rucho, the 2019 case, was wrong when it accepted partisan gerrymandering as constitutional. Extending that principle as a defense to racial discrimination in redistricting is contrary to constitutional law, settled precedent, and the needs of a multi-racial democracy. 

The post How the Roberts Court Could Neuter the Voting Rights Act  appeared first on Washington Monthly.

As the Supreme Court begins its new term this first Monday in October, it’s worth noting that an important anniversary went largely unnoticed on September 29. It was the 20th anniversary of John Roberts being sworn in as chief justice of the United States and the beginning of the Roberts Court. There have been only 17 chief justices—some very memorable, like John Marshall, and others far less beneficial, like Roger Taney, author of the Dred Scott decision, which held that Black people were not citizens, making March 6, 1857, the darkest day in the Court’s history.

Roberts’s appointment came during George W. Bush’s annus horribilis—a year after the president’s 2004 reelection, when his administration mishandled Hurricane Katrina, watched its invasion of Iraq unravel, and made an ill-fated run at partially privatizing Social Security. Roberts was initially tapped to replace Justice Sandra Day O’Connor, who had announced her pending retirement on July 1, 2005. However, when Chief Justice William Rehnquist died in September 2005, Bush only waited two days to tap Roberts for the Chief’s seat and his White House Counsel, Harriet Miers, for the O’Connor vacancy. In case you’ve forgotten or are too young to remember, Miers withdrew after conservatives decried her lack of experience and worried about her right-wing bona fides. Bush got the message, dispensed with appointing another woman (or cipher) to the Court, and named a right-wing favorite, Samuel Alito of the Second Circuit, to fill the associate justice’s seat.

Twenty years into the Roberts Court, the Court’s public approval is close to its lowest since such measures began.

During Roberts’s tenure, the law has shifted significantly toward fulfilling many of the conservative legal movement’s main priorities, such as the doctrine of the “unitary executive,” which it has nearly fully embraced. This weakens the separation of powers that has served as a check and balance against a “man on horseback” for over 230 years. The largest number of Americans ever surveyed says the Court is now too conservative. Iconic liberal Justices Oliver Wendell Holmes, Louis Brandeis, Hugo Black, William O. Douglas, Earl Warren, and William Brennan must all be turning over in their graves. Justices who favored a humble, modest court that deferred to legislatures wherever possible, such as Felix Frankfurter, must also be spinning.

Now, the Roberts court may be tilting even further to the right. The doctrine of stare decisis has always been the keystone of our common law, which we inherited from England. Stare decisis means that courts must stand by what they decide. The doctrine ensures consistency and predictability in the law.

The late Justice Antonin Scalia recognized stare decisis as a guiding principle. Famously describing himself as a “faint-hearted originalist” who would abandon the historical meaning of the Constitution when following it was intolerable, he proclaimed that “stare decisis is not part of my originalist philosophy; it is a pragmatic exception to it.”

Stare decisis is sensible because, among other reasons, it protects those who have organized their affairs based on a court’s existing rulings. Why make a will or cut a business agreement unless you are confident the courts will enforce its provisions? Why marry someone of the same sex if you believe the Court’s decision that such a marriage is constitutionally guaranteed is vulnerable to being scuttled just a few years later? 

Justice Clarence Thomas questions the strong foundation of stare decisis. Days before the Court’s term begins, Thomas told a Catholic University audience that he feels no duty to follow “totally stupid precedent if I find it doesn’t make any sense.” How does he determine what is “totally stupid,” the text, the original understanding, or just his gut feeling? 

Thomas continued his harangue, “I think we should demand that, no matter what the case is, that it has more than just a simple theoretical basis,” Thomas said. If it’s “totally stupid, and that’s what they’ve decided, you don’t go along with it just because it’s decided.”

He added: “I don’t think that … any of these cases that have been decided are the gospel,” Thomas said during the rare public appearance. “And I do give perspective to the precedent. But … the precedent should be respectful of our legal tradition, and our country and our laws, and be based on something, not just something somebody dreamt up, and others went along with.”

Settled legal precedent in the U.S. is not “gospel” and, in some instances, may have been “something somebody dreamt up and others went along with,” but stare decisis is a venerable principle of the common law, and judges since Magna Carta in 1215 have venerated the doctrine. It doesn’t mean every precedent stands forever. Still, when the Court overturns one, as it did in 1954’s Brown v. Board of Education, overturning racial segregation in public schools, it does so sparingly. It begins to signal its objections in prior cases. Brown was preceded by other cases overturning racial discrimination, such as Texas’s all-white Democratic primary.

Thomas’s remarks are especially troubling now that the Court is considering a request to overturn the 2015 Obergefell Supreme Court decision that guaranteed marriage rights for same-sex couples, along with issues like birthright citizenship, the independence of regulatory agencies—which have been part of our government since the late 19th century—presidentially imposed tariffs, transgender rights, voting rights, campaign finance law, religious rights, and capital punishment.

Given Roberts’s record and Thomas’s remarks, there’s reason to fear stare decisis is disappearing. It didn’t stop the Court from overturning Roe v. Wade and decades of case law on regulation. Just last week, the Court ignored stare decisis, almost overruling the 1935 case Humphrey’s Executor by allowing Trump to remove, at least temporarily, a commissioner on the Federal Trade Commission—the same agency involved in that New Deal-era decision.

Humphrey’s Executor involved President Herbert Hoover’s nomination of Humphrey as an FTC commissioner, which the Senate confirmed. In 1933, President Franklin D. Roosevelt requested Humphrey’s resignation. When Humphrey refused, Roosevelt fired him despite the FTC Act stating that a president could only remove a commissioner for “inefficiency, neglect of duty, or malfeasance in office,” none of which applied to Humphrey. The unanimous Court ruled that the FTC Act was constitutional and that Humphrey’s dismissal on policy grounds was unjustified. The Court reasoned that the Constitution has never granted the “illimitable power of removal” to the president. Unless, as this Roberts Court interprets it, the Constitution gives the president that power when their name is Trump.

This week, the Court allowed Federal Reserve Governor Lisa Cook to keep her seat temporarily while Trump attempts to fire her. It will review the utterly concocted case against her, which is notable since just weeks earlier, the Court emphasized that members of the central bank deserve greater protection from removal than, for example, members of the National Labor Relations Board. No wonder virtually every living Federal Reserve chair and Treasury Secretary has begged the Court in an amicus brief not to permit the president to fire a Fed governor over an unproven charge of mortgage fraud. (Speaking of amicus briefs, it’s shocking and little noticed that in her new book, Listening to the Law, Justice Amy Coney Barrett states she generally does not read amicus briefs because they focus on policy issues rather than purely on the law. More on that in a minute.)

In 2013, the Roberts Court didn’t strike down the Voting Rights Act, but just a few years after Congress nearly unanimously renewed some of the statute’s temporary provisions, and President George W. Bush signed it in 2006, in Shelby County v. Holder, it neutered the law’s preclearance provisions. John Roberts wrote the opinion.

These provisions require states with a history of voting rights abuses to obtain federal permission from the Justice Department or the D.C. Circuit Court of Appeals before changing their voting practices, such as redrawing district lines or relocating polling stations. Roberts wrote the decision invalidating decades-old precedent; he allowed the Section 5 preclearance tool to survive (I bet at the insistence of the Court’s moderate swing vote, Justice Anthony Kennedy) but struck down the Section 4 standards that governed where Section 5 could be used. Congress and the president had frequently updated those standards over the decades to keep pace with changing conditions so states could get out of the penalty box. No matter. The Roberts Court substituted its judgment for that of multiple Congresses and presidents.

Now the Court seems ready to go after Section 2 of the Voting Rights Act, a permanent nationwide provision of the 1965 statute that bars electoral practices with a discriminatory “effect.” The Rehnquist Court upheld the discriminatory effect standard that Congress wrote into Section 2 in 1982, and that President Ronald Reagan signed. The Roberts Court seems eager to strike it down 43 years later.

Sustaining the Voting Rights Act is the acknowledgement that if states violate the Constitution when they draw congressional district lines to dilute minority (and especially Black) votes, then it ought to follow that Congress can enforce the Constitution by requiring states to draw districts that don’t so discriminate—even if that requires states to consider race when doing so. Otherwise, this critical constitutional principle would be a dead letter. But the justices may further trash the statute Roberts gutted in Shelby and decide otherwise.

In 2005, when Roberts, then a jurist on the D.C. Circuit, faced confirmation hearings to become chief justice, he likened his judicial role to a baseball umpire. “It’s my job to call balls and strikes,” he famously said, an aw-shucks response meant to prove that he would be a humble chief justice. Since he’d spent most of his career as a litigator instead of an ivory tower jurist, this seemed plausible.

Roberts won plaudits as an institutionalist when he was the deciding vote upholding the Affordable Care Act in 2012. Still, he has often shown himself as a hard-right justice in institutional drag. He voted to uphold a Mississippi law banning abortion, although he refrained from the coup de grâce, and did not join Alito’s gleeful opinion eviscerating of Roe v. Wade, a super precedent for almost half a century. His Court, with his complete agreement, dismantled the “Chevron deference” in regulatory cases, a 1984 doctrine established and supported by Republican-appointed justices to emphasize that regulations created under President Reagan couldn’t be easily overturned. He sided with his Court’s conservative wing to consider numerous cases on the shadow docket and has voted to vacate injunctions to allow illegal conduct to continue. As cases wind their way to a conclusion, he has also voted to decide cases on an interim basis—even when he didn’t need to—and, under the guise of issuing temporary orders, has often resolved weighty legal issues at earlier stages of litigation. So, regardless of your opinion of Roberts, don’t naively label him as an institutionalist. 

Most importantly, Roberts has blessed the expansion of presidential powers to the point where even if the chief executive ordered Seal Team Six to murder his opponents, in the words of one appellate judge, it would not expose the president to any charges, even after leaving office. Hence, Trump’s myriad felony convictions and federal prosecutions became one big nothingburger.

With Thomas ignoring the precedents and Barrett saying she doesn’t read most amicus briefs because they address policy issues rather than the law, we have at least two justices, influenced by a conservative ideology, who will focus on legal principles of their own choosing. I doubt they’re alone.

If this is so in this era of artificial intelligence, why do we need judges? I always thought that law was policy by another name or a close cousin. Freedom of the press and freedom of religion are fundamental rights. They are also policies. If a justice wants to ignore the gravity of amicus briefs, that’s just weird. So, we have a supermajority that includes precedent and policy ignorers. Now that the Court has abolished constitutional protections for abortion, eviscerated a significant provision of the Voting Rights Act and has its eyes set on another, expanded executive power to kingly proportions, and greenlit big money in politics, it’s hard to imagine what they won’t do to precedents Thomas has hinted strongly that he wants to overrule such as New York Times v. Sullivan, which affords the press protection from libel actions filed by public figures. If all they are doing is calling balls and strikes (and I mightily dispute this), we might as well abolish the judiciary and replace it with an AI ball-strike challenge, which might be preferable to what we have under Chief Justice Roberts.

The post The Roberts Court at 20 appeared first on Washington Monthly.

The former FBI director James Comey has been indicted for making false statements and obstructing Congress. The gossamer-thin charges, issued by a federal grand jury, came after President Donald Trump pressured the attorney general to indict Comey for perjury before the statute of limitations expires next week. At issue: whether Comey lied during a Senate hearing in September 2020 about the FBI’s investigation into Russian efforts to influence the 2016 election, and whether his deputy, Andrew McCabe, authorized a leak to a reporter. An inspector general’s report, probably not shown to the grand jury, casts doubt that anything was untoward on Comey’s part. The president’s norm-shattering crusade against Comey included pressuring Attorney General Pam Bondi, bouncing his own respected pick for U.S. Attorney for the Eastern District of Virginia, and replacing him with an insurance attorney who worked on Trump’s personal defense team and has no prosecutorial experience. The former is reported to have balked at making the indictments Trump wanted. The latter seemed to have no such hesitation. That Comey may well have elected Trump in 2016 by violating Department of Justice policy and giving long, rambling remarks about Hillary Clinton’s emails—a case he closed that summer and then, with great fanfare and little evidence, reopened days before the presidential election—is one of the ironies of our era when justice can best be seen through a fun house mirror. It’s a shocking development and proof that Trump’s presidency is a revenge-driven one and is in full throttle. Will this be the last indictment of a Trump critic? I suspect not.

I came of age in the law when presidents and prosecutors were made of sterner stuff. In 1967, when I joined the office of the U.S. Attorney for the Southern District of New York, I became steeped in the Justice Department’s tradition of non-partisan independence. Comey would head the office after 9/11, but when I was there, the head was the legendary prosecutor Bob Morgenthau, who would later become the longtime Manhattan District Attorney. Public service was in his DNA. His grandfather was the U.S. ambassador to Turkey, nominated by Woodrow Wilson. His father was Franklin D. Roosevelt’s Treasury Secretary. He was a friend and appointee of John F. Kennedy.

No one asked me about my politics when I interviewed for the job. In fact, I was a registered Republican. The “Boss,” as we affectionately called Morgenthau, expected that we, as federal prosecutors, be guided only by the facts and the law in each case. Politics was foreign to our culture. We were lawmen, not political apparatchiks. We investigated Republicans and Democrats with equal fervor, sharing and sharing alike.

Today, under Donald Trump, tradition is seriously compromised. The Communist Manifesto predicted the “withering away of the state,” and under Trump, we are witnessing it shrivel or loom all-powerful, depending on how you look at it.

Forget that Trump has diminished if not extinguished the government’s commitment to foreign aid, medical research, Medicaid, sensible economic regulation, the environment, and the arts.

Forget the First Amendment infraction that two late-night television political satirists have been forced off the air, with two others said to be “next” as part of the crackdown on media using libel actions and threats to block legitimate mergers and acquisitions. Trivial is the footnote that in the face of public outcry, The Walt Disney Company, ABC’s parent, has announced Jimmy Kimmel’s show is back on the air. The abridgement of free speech continues. Under pressure from the government, right-wing media company Sinclair, which operates nearly 40 ABC stations across the country, says it will not restore Kimmel’s show to the airwaves it licenses. It announced it will preempt Jimmy Kimmel Live! with news programming. Nexstar, which owns roughly 30 ABC affiliates and is seeking regulatory approval from the Federal Communications Commission for its merger with Tegna, says it will follow suit.

Forget that the executive claims it has the authority to impose harsh tariffs when that power is explicitly granted to Congress by the Constitution. 

Forget that Trump threatens to send the military or ICE agents to blue cities across the country to carry out law enforcement activities, even though it is illegal under the Posse Comitatus statute.

Forget that Trump has attempted to undermine the Federal Reserve’s independence by trying to fire Lisa Cook, a Biden-appointed member of the Fed’s board of governors, over a minor issue related to a mortgage application filed before she took office or that virtually all living Fed chairs and former Treasury secretaries have filed an amicus brief spelling out the grave threat posed by this president to Fed independence.

Forget that releasing all the Justice Department files related to convicted sex offender Jeffrey Epstein would be a simple matter and could erase lingering suspicion about lurid details of his 15-year relationship with Trump, but most of the documents remain secret.

Forget that three Trump supporters—Trevor Milton, Carlos Watson, and Devon Archer—each convicted of securities fraud, were pardoned, potentially undoing civil penalties that could total hundreds of millions of dollars. Also, forget that the Justice Department is ignoring the investigation of Tom Homan, Trump’s border czar. Homan allegedly took a paper bag of cash, worth $50,000, to help FBI agents posing as businessmen secure government contracts related to the border. 

From all this, we might swallow hard and move on.

But the final straw is that Erik Siebert, U.S. Attorney for Eastern Virginia, was forced out of office for refusing to indict Trump’s personal enemies after reviewing the facts and the law. Siebert resigned, though Trump claims he had fired him. Siebert, a seasoned lawman appointed by Trump himself, believed there was no crime to prosecute. Trump told reporters in the Oval Office: “I want him out.” The issue? Siebert refused to indict New York Attorney General Letitia James, who successfully went after the Trump Organization for fraud and is a key figure in much of the litigation state attorneys general are bringing against Trump. Siebert’s office was looking into Jim Comey and declined to pursue charges against him.

Siebert was a seasoned and respected career prosecutor. He began his career in 2010 as an Assistant U.S. Attorney. He spent nearly 15 years prosecuting a wide range of cases, including violent crime, international and domestic drug trafficking, illegal firearms, fraud, child sexual exploitation, illegal immigration, and public corruption. Trump appointed him interim U.S. Attorney the day after his inauguration on January 21, 2025. He received awards and accolades for his prosecutions. He was a Metropolitan Police Department officer in Washington, D.C., from 2002 to 2006. His father-in-law is a former Virginia Attorney General and a counselor to Republican Governor Glenn Youngkin.

Siebert had support from Virginia Republicans and the commonwealth’s Democratic U.S. Senators, Mark Warner and Tim Kaine. They knew he was a dedicated career prosecutor. He had the respect of the judges in his district. When his 120-day interim term ended in May, the court unanimously reappointed him to continue in office.

Trump, the self-styled chief law enforcement officer of the country, has flagrantly abused his power. His conduct in seeking direct control over the hot-button cases in Pam Bondi’s Justice Department makes any parade of other horrors pale in comparison. We are living through a period of maximum danger for the nation.

Even before Siebert resigned, ABC News predicted that the administration would appoint a U.S. attorney to investigate James more aggressively. “It looks to me like [James] is very guilty of something,” Trump told reporters in the Oval Office last week, “but I really don’t know.” 

So, who would that person be, ready to do the master’s bidding? The Washington Post reported it would be Mary “Maggie” Cleary. Cleary, who has limited federal experience and has spent much of her career in the Virginia state system, joined the Justice Department’s Criminal Division in September 2025. Her LinkedIn bio states she “served in the Culpeper County Republican Committee.” She undoubtedly recognizes the immense power of the prosecutor, claiming in an essay published this year that she had been “framed” as participating in the January 6, 2021, attack on the U.S. Capitol—an incident she says ended with her being cleared by investigators and inspiring her to pursue a U.S. attorney position.

After the Post reports on Siebert’s successor, Trump abruptly shifted his stance on Truth Social, claiming that he judged that his enemies were “all guilty as hell.” Guilty of what? If he had read the United States Code, it would probably have been the sections related to conspiracy to defraud the United States or mishandling classified documents, for which he was indicted.

Then, he proposed a different nominee, Lindsay Halligan, a “Special Assistant to the President” who has worked on the information purge at the Smithsonian. Before this, she practiced insurance law in Florida, joined his legal team, and handled her first federal case in 2022 when Mar-a-Lago was searched. She has never been involved in any prosecution. Unlike Cleary, who was somewhat qualified for an Assistant U.S. Attorney’s position, Halligan lacks the remotest experience to qualify her for this important role.

Halligan brought an indictment against Comey, and a grand jury has agreed. What now? A federal district judge might dismiss the case for lack of evidence or because this is a selective and vindictive prosecution; Trump himself has given Comey’s attorneys ammunition with his public statements. If and when the Comey case ever reaches trial, prosecutors will have the Herculean task of proving guilt beyond a reasonable doubt to twelve jurors when there’s a mountain of evidence that the prosecution was selective. And then there is always an appeal. What a waste of judicial resources!

And beyond the prosecutions of Comey and perhaps James, Trump’s push for indictments of his two enemies could undermine public confidence that other cases are being pursued for valid reasons.

Here’s the full text of what our president said:

And the follow-on to the purge of Siebert is the pressure on Maryland U.S. Attorney Kelly O. Hayes, another veteran career prosecutor. Hayes has the purported mortgage fraud case against Senator Adam Schiff, another of Trump’s enemies, and the one against his former National Security Advisor, John Bolton, for mishandling classified documents. Hayes reportedly told associates that she well understood the grave consequences if she declined to bring a case against a Trump enemy because the evidence of criminality was insufficient.

If history doesn’t repeat itself, it’s said to rhyme. In 2006, President George W. Bush fired nine U.S. attorneys for what seemed like political reasons. His Attorney General, Alberto Gonzales, appropriately resigned over the scandal. As Watergate sadly proved, politics has no place in public prosecutions.

If left unchecked, Trump could transform us into a nation where criminal law enforcement becomes a political tool for the president. We tend to mock Latin American countries as “banana republics,” implying they are places where the government suppresses opposition. However, there is much to learn from Latinos about respecting the rule of law. Argentina prosecuted its former president, Jorge Rafael Videla, for crimes committed during his regime, and Brazil did the same with its leader, Jair Messias Bolsonaro. Yet, we seem unable to do even that.

The post Trump’s Threat to Justice: Comey and the Politics of Prosecution appeared first on Washington Monthly.

This summer, the Supreme Court issued an order in Noem v. Vasquez Perdomo, an “emergency docket” decision permitting Immigration and Customs Enforcement (ICE) agents to continue detaining individuals in Los Angeles, based on their race or ethnicity, proficiency in Spanish, and suspicious presence near Home Depot, Beverly Hills lawns, and other hotbeds of criminal activity. Judge Maame Ewusi-Mensah Frimpong, of the federal District of Central California, had enjoined the practice on July 11. Her opinion asked and answered the question, “Is it illegal to conduct roving patrols which identify people based on race alone, aggressively question them, and then detain them without a warrant, without their consent, and without reasonable suspicion that they are without status? Yes, it is.” She issued an order forbidding ICE to detain Angelenos without “reasonable suspicion” that they—as individuals—are unlawfully present in the U.S., without relying on broad criteria like race and ethnicity, speaking Spanish, speaking English with an accent, or nearness to sites where undocumented workers gather.

Department of Homeland Security Secretary Kristi Noem had rushed an “emergency” appeal to the Supreme Court, warning of dire consequences if DHS were to miss a day of its Los Angeles sweeps. On Monday, the Court, 6-3, granted Noem’s request. Though the Court made no explanation of its ruling, the ever-helpful Justice Brett Kavanaugh explained, drawing on information no doubt acquired from thorough discussions at the Yale Club, that individuals not legally in the United States had no “particularly substantial” interest in not being arrested based on race or ethnicity alone. At the same time, actual citizens who are stopped because of their appearance, language, or work will suffer no inconvenience because “the questioning in those circumstances is typically brief, and those individuals may promptly go free.”

It was a masterful display of Kavanaugh’s empathy with ordinary Americans and the scrupulous practices of ICE and other federal agencies. Here is one encounter between ICE and a citizen that Kavanaugh relied upon:

* * *

THE SCENE: A shaded boulevard in the City of Angels, where Americans of all races, colors, creeds pass freely, their happy expressions demonstrating that they enjoy their God-given liberty protected by the U.S. Constitution and the ever-vigilant courts.

ENTER DUDLEY FREEZERIGHT, a highly trained ICE operative protecting Americans from being murdered in their beds or crowded out of lucrative dishwashing jobs by the invasion of aliens. FREEZERIGHT spies a Hispanic Appearing Person strolling near a car wash.

FREEZERIGHT (DF): Well met, Hispanic appearing person! May I converse with thee?

HISPANIC APPEARING PERSON (HAP): Of course, my dear chap! It is not as if I have something to hide or if I might resent being briefly detained in a fashion that may make me late for work simply because of how I look, which even I must admit has a certain raffish subtropical quality. I know your intention is noble, and this could never end with me being sent to a supermax prison in a third country. What is the nature of your inquiry?

DF: I am an operative of ICE, an agency of which you are undoubtedly an admirer..

HAP: I surmised as much from the mask obscuring your features and the body armor you wear, even though the temperature is quite pleasant.

DF: Would it, by chance, be the case that you are a foreign national present in the United States without appropriate documentation? Perhaps you engage in work that is not otherwise permitted by your visa status?

DF: I am so glad you asked, nameless officer with black tape covering his name. Thank you for your service! As it happens, I am, like most real Americans, carrying my citizenship documents and my passport, which, as you will see, indicate that I am an American citizen by birth.

DF: Such appears to be the case for now, though I encourage you to keep a wary eye on our Supreme Court.  Who knows what those scamps will get up to about birthright citizenship later in the Term?

BOTH: Ha! Ha! Ha!

DF: At any rate, you appear to be blameless as far as illegal presence in the U.S. is concerned. I say, would it be unreasonable of me to ask you to remain where you are while I take care of an administrative matter?

HAP: Not at all, my friend. It is, after all, nothing short of my civic duty to cooperate with your benevolent operation.

DF: Quite so.

DF BRIEFLY EXITS TO SMASH A CAR WINDOW, DRAG A TEENAGER OUT, AND HUSTLE HIM INTO AN UNMARKED VAN.

DF: Now, where were we? Oh, yes, I wish to subject you to a harmless and not-at-all threatening interrogation during our brief encounter.

HAP: It is good of you to ask. In what way can I help?

DF: Is any member of your immediate family or household in such a compromised status that it might behoove me and my fellow officers to pay them a visit?

HAP: Indeed, not so, we are Americans with nothing to hide.

DF: Naturally, I will take your word. Before we conclude this pleasant interaction, would you excuse me? One of my colleagues has been cruelly lashed with a Subway sandwich, and we must arrest the miscreant for assault with a deli weapon and intent to cause grievous bodily ham.

HE EXITS, THROWING THE SANDWICH FLINGER INTO THE SAME VAN, HOPING A GRAND JURY WILL INDICT THE SUSPECT AND HIS HAM SANDWICH, PROVING THE OLD MAXIM TO BE TRUE

DF: Well, that concludes this pleasant encounter. We at ICE thank you for your patriotism and hard work, and encourage you to report any suspicious activity or undocumented persons.

HAP: I shall not fail in my duty.

BOTH CONTINUE ON THEIR RESPECTIVE PATHS. FREEZE-RIGHT PAUSES BRIEFLY TO KNOCK A GRUBHUB DELIVERER OFF HIS BICYCLE.

ENTER NATIONAL GUARD TROOPS DISPATCHED FROM LOUISIANA WHO HAVE LITTLE ELSE TO DO DURING ITS HURRICANE SEASON. THE GUARDSMEN MAKE SURE THAT NO CAR WASH ON WILSHIRE BOULEVARD IS HARBORING A FUGITIVE. ALL IS WELL.

The post Brett Kavanaugh Hits the Street! appeared first on Washington Monthly.

In what’s become an increasingly common practice in recent months, the Supreme Court recently used its “emergency docket” to lift a lower court injunction barring the use of racial profiling by federal immigration officials. The Court’s order allows ICE officers in Los Angeles to continue aggressive “roving patrols” and detention practices based on a person’s appearance. While the Court’s order was unsigned, it was accompanied by a rare concurring opinion by Justice Brett Kavanaugh, who argued on both procedural and substantive grounds that the raids are legal. 

In this episode, Washington Monthly Legal Affairs Editor Garrett Epps speaks with contributing writer Peter Shane about the flaws in Kavanaugh’s reasoning. This transcript has been edited for length and clarity. 

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Garrett Epps: Peter, you posted a very powerful piece entitled, “A Blinkered Supreme Court Blocks Relief from Racial Profiling.” It’s a scathing discussion about the civil liberties aspect of a decision the Supreme Court announced on September 8th called Vasquez-Perdomo. Exactly what was this decision and did the Court actually say anything?

Peter Shane: The Court as a Court did not speak. There was no majority opinion for however many justices supported what the Court did. What the Court did was stay injunctive relief that had been granted by the United States District Court for the Central District of California against the targeting practices of ICE agents based on four criteria—whether the person appeared to be from Mexico or Central America;  whether the person was speaking Spanish or English with a Spanish accent; whether they were in a location where it was suspected that undocumented immigrants might be looking for work; and whether they themselves appeared to be engaged in a low wage occupation. 

I suppose the people who think this is a rational set of criteria might be thinking of a particular parking lot of a particular hardware outlet that is known to be a sort of site for this.

But it was clear this could also be a bus stop. There was no explicit geographic constraint on where people could be targeted. So the lower court was persuaded that these criteria were casting a net so wide that the only reason for singling someone out would be their race or ethnicity.

And we’re talking about a district in California where the court found that 47 percent of residents self-identify as Hispanic or Latino. So this was a net that was going to catch a lot of people who were not appropriately targets. 

So the court issued an injunction that saying ICE can continue to target people but cannot use these four criteria as its exclusive net. There has to be something more particularized to decide to go after a specific individual.

The government appealed that to the Ninth Circuit and asked for a stay of the order. The Ninth Circuit did not stay the injunction. So the Trump Administration followed its now not-so-unusual procedure of going to the Supreme Court using their so-called “emergency docket.” 

They asked the Court to withdraw the injunction or to stay the injunction while the case was being heard on its merits. 

The Supreme Court is not required to issue an opinion when they act on these applications, so what happens is you get a decision which is, “yes, the application for the state is granted or no, the application is denied.” And whether anything is said at all is completely discretionary with individual justices. We’ve seen in a lot of cases with civil liberties or separation of powers implications that there’s often a dissent written by one of the liberal justices. But what’s unusual in this particular instance—and I guess this counts as a kind of public service—is that Justice Kavanaugh wrote an opinion concurring in the denial of the application.

Strictly speaking, we don’t know whether all the other five conservatives voted for the application. It only takes five votes. There might have been another dissenter in there who decided not to join the dissent. We don’t know. And we don’t know what the other five justices and the six justices supermajority were thinking. But we do know what Justice Kavanaugh is thinking. 

Garrett Epps: Let me ask you about that opinion by Justice Kavanaugh, because he makes some fairly interesting factual statements. And you can take his opinion and compare those statements to the actual record that’s even available on the court’s own website. And I want to read something from the Ninth Circuit opinion. This is the Ninth Circuit discussing why it is affirming the lower court’s injunction:

“Plaintiff Jason Brian Gavidia is a U.S. citizen born and raised in East Los Angeles. He identifies as Latino. On the afternoon of June 12th, he stepped onto the sidewalk outside of a tow yard in Montebello, California, where he saw agents carrying handguns and military-style rifles. One agent ordered him to stop right there. Another ran toward him. The agents repeatedly asked Gavidia whether he was an American. They repeatedly ignored his answer. I am an American. The agents asked Gavidia what hospital he was born in. He explained he did not know which hospital. The agents forcefully pushed him back against the metal gate, put his hands behind his back and twisted his arm. An agent said again, what hospital were you born in? He again explained he did not know, but answered East Los Angeles. He then told the agents he could show them his real ID. The agents took his ID and his phone, kept his phone for 20 minutes and never returned his real ID.”

Now, does that match the description that Justice Kavanaugh gives of what’s going on in the streets of Los Angeles?

Peter Shane: It does not, and that’s relevant in two ways. Garrett, as you know, one of the things that the Court is supposed to consider in granting an injunction is the balance of equities: the interests that the government has in avoiding the injunction and the interests that the individuals have in maintaining the restraint on the government. 

The Kavanaugh opinion really minimizes the interests of the individuals. He says, as far as undocumented persons are concerned, their interests are minimal, if any, in resisting interrogation. And as for citizens, the only thing that they’re risking is what he describes as a “brief interrogation.”

So that  makes it sound—and I think you and I have joked about this—as if there’s this of polite, “Excuse me, sir, might I interrupt your stroll down the street for just a moment while I inquire into your citizenship status?” And that picture, the record shows, is completely unrealistic.

Kavanaugh recognizes that this is not exactly an accurate description of the typical encounter by acknowledging there are allegations of force involved, but then he also says that this issue is not technically before the Court. 

And I know Justice Roberts takes great umbrage when this is mentioned in the same breath as any discussion of his Court, but what came to my mind immediately was Korematsu, where Fred Korematsu was arrested and charged with violating what was technically an exclusion order in California that was issued as part of the campaign to intern Japanese American citizens during World War II. The order started not with “Thou shalt be interned,” but rather, “We’re creating an exclusion zone, and you have to remain outside.” And the only place you could go outside was the transportation center to take you to the internment camp. So he’s challenging his conviction on the basis that this is a racially bigoted unconstitutional violation of his rights to due process under the Fifth Amendment.

And the Court says, we’re being tasked here as if what we’re being asked to do is to sign off on some program about the internment of American citizens. That’s not our issue. Our issue is the validity of this exclusion order, and that’s the only issue technically before us. Technically, okay. But it blinks reality in just a completely irresponsible way, not to recognize or acknowledge the fact-finding that’s happened in the courts below—fact- finding to which the Supreme Court is supposed to be deferential. It’s shocking.

Garrett Epps: In addition to this discussion about the record, Kavanaugh does something else that is potentially very dangerous for other cases of this sort, and that is to apply a sort of unusual approach to what we lawyers call “standing”—or the right to bring a lawsuit. 

The fact that I happen to disapprove of the new ballroom in the White House doesn’t mean I have the right to sue. I’d have to show that somehow it’s injuring me. 

Kavanaugh’s opinion has a fascinating discussion about standing—can you talk a little bit about that? 

Peter Shane: What you say is correct, both about the importance of standing and Kavanaugh’s unusual treatment of it. It’s not just that you have to show that you’ve been injured, although that’s obviously key. In the ballroom example, it’s perfect. What the Court would say is that maybe you were injured as a taxpayer, although Trump insists that no public funds are being used.

But that injury is not different from anybody else who’s offended by the ballroom, so that’s not an individuated enough injury to have standing. But the other thing you have to show is that the relief you’re asking for would actually make you better off. And what Justice Kavanaugh says is that this case is like an earlier case in which the Supreme Court denied standing, partly, to an individual who challenged the way the Los Angeles police was encountering potential suspects. 

That case is City of Los Angeles versus Lyons, and it involved a motorist, Adolf Lyons, who was stopped by police and told to get out of his car. The record indicates he didn’t resist, but he was subjected to a chokehold that rendered him unconscious and damaged his larynx. 

He sued as an individual on the ground that he was entitled to damages for the injury he sustained. But he also asked for an injunction against future police misconduct using a chokehold. And the Court said, well, you can sue for damages if you prove your case, and

the damages will repair the injury you have suffered. But you don’t have standing to bring the case for a future injunction unless you can show that you are likely to be subject to or potentially subject to a chokehold again that this injunction would protect you from. And of course, he couldn’t show that. So they said he had no standing for the injunction.

What immediately occurred to me is that this is not a good precedent for dismissing standing here. 

Why do I say that? So the plaintiffs in this case were actually asking for certification as a class action, which would have potentially reached a great many more people. The lower courts hadn’t dealt yet with the certification question. So we’re not concerned in this case about what’s going to happen to a single individual who would have to be as lucky as the lottery winner who got two tickets or as unlucky as the person struck by lightning twice. We’re talking about a group of people, all of whom pretty much share exactly the target criteria that ICE is going after.

What the Supreme Court knew by the time the Lyons case was argued is that the LA police department had already adopted an explicit policy against chokeholds. So the justices might have said, “Look, not only does Mr. Lyons have to be the unluckiest person in the world to get choke held twice, but given the background policy context, there’s every reason to think that what he’s asking for he’s getting voluntarily from the department already, which is a promise not to do this again.”

 In this case, Secretary Noem of the Department of Homeland Security has called the district judge an idiot. She and ICE executive in Los Angeles have doubled down on their right to do what they’re doing. Noem said they’re not changing anything, and there is no reason to think that the agency is at all chastened by its repeated mistakes in terms of who it’s targeting and how they’re treating people. In fact, as is often said of this administration, cruelty seems to be the point.

Garrett Epps: The core of what has happened in this case is that from now on, until there is a resolution on the merits, ICE can go around the streets of this district and stop people, shake them down in the way we described, purely on the basis of their race, their appearance, clothing, the way they talk, and maybe their vicinity to low wage work.

If those are the criteria that can be used to create the opportunity for a search or detention, that’s a real change from what this Court has claimed to be a bedrock principle of constitutional law. 

Peter Shane: I don’t walk around life day by day as an angry person, but there are some cases that really get to me. And a case that really got to me from some years ago is called Parents Involved in Community Schools v. the Seattle School District. And it’s a case in which the Supreme Court was asked to review the constitutionality of voluntary affirmative action plans or student assignment plans in Seattle and Louisville, Kentucky, that were intended to maintain a reasonable likelihood of racially-integrated school experiences.

Neither of these plans was particularly aggressive in the use of race. If a child wanted to transfer from their neighborhood school to another school, school authorities would ask if the school to which they wanted to transfer was already a racially identifiable school, and if it was, would this make the problem yet more conspicuous? And if so, the transfer would be stopped. That’s all that was at stake. The dissent in that case said, “You know, this is really not burdening anybody and is commendable educational policy. We should be applauding this.”

 But Chief Justice Roberts writing for the majority said no, that there was no interest at stake adequate to support what the school districts were doing. And he said “the way to end racial discrimination is to stop discriminating by race.” And that quote captures this formalistic view of what it takes to create racial equality. We saw this resurface in Students for Fair Admissions v. Harvardas well. So the majority seems really wedded to that idea if race is being used to provide uplift, even in a relatively non-zero sum kind of situation like Seattle and Kentucky. 

But now let’s say I’m standing at a street corner, wearing jeans and a work shirt. I have a lunch bag. So it looks like I’m not going to the Duquesne Club in Pittsburgh for my next business meeting. And I’m standing next to a brown-skinned, Spanish-speaking individual dressed identically with the same lunch bag. He could be stopped, but I would not be, and the only differentiation is race.

What happened to “the way to stop racial discrimination is to stop discriminating by race”? Suddenly, we don’t care because the people who are targeted are people whose interests we just don’t value. And the other thing to be said is that the Court is also not acknowledging how stigmatic this is. Now it’s kind of okay in the Court’s view, not just for ICE, but for anybody walking around to say, you know, it’s reasonable for me to suspect that the person walking across the street is actually an “illegal.”

This is just an intolerably demeaning way of looking at one another that the Court is implicitly sanctioning. And I would like to have thought it was un-American.

Garrett Epps: Well, apparently not. And it seems to me that what is happening is really eroding the kind of egalitarian foundations of a democratic republic.

Citizenship is now something that is in doubt for millions of people.  The government can simply say, “You know, we think people like you aren’t citizens, so we’re going to start shaking you down.” We’re living in a very different country than we thought that we were living in, and it’s something that people should be outraged about.

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