The Supreme Court justices have been running their mouths. Justices Clarence Thomas, Sonia Sotomayor, and Ketanji Brown Jackson have all spoken recently about the state of the court—while casting some not-so-collegial shade on their colleagues. At an event in early April, Sotomayor made a pointed comment about a colleague (clearly meant to be alleged attempted rapist Brett Kavanaugh) who she said did not have the “life experience” necessary to appreciate how his love for racial profiling hurt others—an objectively true statement that she later apologized for, for no reason. Thomas accused “progressives” of trying to undermine the Declaration of Independence, which isn’t true except for the part where the Declaration only contemplates freedom for wealthy white men. Justice Jackson was perhaps the most critical, excoriating the court for its use of the shadow docket.

Soon after those comments, Jodi Kantor and Adam Liptak published an article in The New York Times that relied on a trove of leaked memos and e-mails from the justices about the proverbial birth of the shadow docket. This followed an article, also in the Times, alleging a “cat fight” between Jackson and Justice Elena Kagan, which is exactly the kind of thing that would never get published if two men were having a normal professional disagreement over brandy or whatever. And just this week, Republican reputation-washer Mollie Hemingway came out with a new book about Justice Samuel Alito—and apparently everybody has been blabbing to her for reasons surpassing understanding.

There’s always a lot of gossip surrounding the court. But the public comments from the justices, as well as the leaks, feel different. What’s emerged from their speeches and spills is that the justices are deeply divided on the state of the court and the country.

The press has responded with some pearl-clutching. Supreme Court justices do not usually air criticisms of one another, so there’s a feeling that another important norm is being breached. But I think these public comments are a good thing. The Supreme Court is a political institution, and the justices are political creatures. All the sniping is doing is revealing the politics behind the court, and I think the public is better off knowing how these nine people really think.

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Especially right now. The conservative theocrats on the Supreme Court are drunk with their own power—to the point where they often don’t feel the need to explain themselves and instead issue pronouncements via the shadow docket, without the benefit of a full hearing. They have become the enforcement arm of the white wing’s political and cultural agenda. Pretending that the court is still remotely interested in “doing law” as opposed to “doing politics” isn’t doing anybody any favors.

The alarm bells should be raised, and the loudest alarms should be coming from the liberals on the court. Partisans like me can scream all we want about the Roberts court’s utter disregard for precedent and established legal principles. But we’re fundamentally outsiders, offering our best guess as to what’s happening inside a black box based solely on what that box spurts out. And, at least in my case, I don’t mind telling you that my analysis is colored by my strong bias toward human decency, democracy, and the protection of minority rights.

The justices themselves are, or can be, the best source for what’s really going on at the court. If they point out problems, that should carry more weight than the total tonnage of talking heads.

But speaking out does not come naturally for the justices on the court. Traditionally, the Supreme Court speaks only through its opinions. If there is a disagreement that they think the public should be aware of, that’s what the dissent is for. The justices are conditioned to let their writing do the talking, both out of a sense of professionalism and because they want to avoid seeming “political.”

That reticence extends all the way down to the Supreme Court clerks who work for the justices, and the reporters who cover the institution. While Congress leaks like a sieve, and there’s a new tell-all book about the president every month, the Supreme Court almost never leaks. Think about it this way: The Kantor/Liptak story is based, in part, on memos sent 10 years ago. Reporting on the Supreme Court is like doing astronomy; you’re reporting on events you can only see years and years after they happened.

The Supreme Court’s functional vow of omertà makes the institution the most secretive, most opaque branch of government. Given how much power these people have, the lack of information should be unacceptable to the general public. These people purport to tell us what rights we have. They tell us who can vote, and what we can vote for. They tell us that children should be sacrificed on the altar of the Second Amendment—and LGBTQ+ children should simply be sacrificed. And yet they are less communicative, and are under less scrutiny from the press, than a town supervisor with a Facebook account.

I’d argue that the traditional method of court communication with the public fails the current moment in at least three ways.

1. The idea that these people are impartial, apolitical, impassive arbiters is as antiquated as the idea that leeches are a viable medical treatment. As I said, continuing to pretend that these people are apolitical actually does a disservice to everybody concerned about their government. We’re better off if they explain their politics (or their jurisprudence as shaped by their politics, if that makes it easier for them) than if they continue to pretend that their politics don’t matter.
2. Most people paying attention know that the Supreme Court is political in some way, but they don’t always know how. That knowledge deficiency leads a lot of people, both in the media and in the political classes, to make wild assumptions about where the court’s politics lie, and how those politics are expressed. It is simply not the case that the liberals on the court “always stick together,” as the orange man would have us believe, nor is it the case that conservative justices regularly break from the party line on issues of national import. The best way to combat misinformation from other political actors is for Supreme Court justices to explain themselves in clear language.
3. It’s 2026. People can hit up LeBron on Instagram and ask him why he made a bounce-pass in the third quarter and potentially get a response from the man himself. The Supreme Court’s inaccessibility is, again, antiquated. People expect some level of access to their key government decision-makers. It is well past time for the court to join the 21st century [insert 10,000-word rant about how oral arguments should be televised].

The solution is simple. The justices should talk more. They should sit for more interviews. They should sit for at least a few hostile interviews or, at a minimum, talks where their interlocutor isn’t a former clerk or professorial ally. The justices cannot rely on the public to read and understand their opinions, nor can they count on the political press to accurately reflect the impact of those opinions. They should tell us, directly, what they think the court is doing and why.

That’s the carrot—the idea that these people can do a better job of controlling their own narrative if they communicate more. The proverbial stick should be a press corp that is on these people like they hold the fate of the free world in their hands (which they often do). I remain amazed that these people can walk out of their offices without running into a gaggle of reporters shouting questions and demanding answers. That needs to change.

We’re about to hit May, which is the start of decision-season for the Supreme Court. The court will be issuing major rulings on trans rights, birthright citizenship, and the Voting Rights Act—which they’re likely about to kill, unleashing Jim Crow levels of racism back into our electoral process. The justices will issue these rulings and then… drive home. Reporters won’t be hounding them. Nobody will ask them so much as a follow-up question. Ten years from now, we’ll learn that Clarence Thomas actually texted Sam Alito that Black people secretly hate the Voting Rights Act—and that Alito believed him because Thomas and the guy who washes the family flags are the only Black people Alito speaks to.

The point is simply this: The Supreme Court is a political institution and it must be treated like one. The press should cover it like they cover all the other branches of government, and the public should expect communication and transparency from this branch, just like all the others.

The time for treating the justices like they are above the political fray has passed. They are in the muck with the rest of us. They have put themselves in that muck with their own decisions. It’s time for everybody else to start acting like it.

Justice is often depicted as a blindfolded woman holding scales—but in real life, Justice is more like Santa Claus holding a shotgun. It sees everything: It sees whether you are rich or poor, whether you are powerful or powerless—and it sure as hell sees whether you are Black or white. Those observations tip the scales before any evidence is weighed. The idea of “blind justice” is a pure fiction, a cruel one invented by the rich, powerful, and white to justify the fickle, unfair, and prejudiced outcomes their legal system regularly produces.

In the United States, Black Americans suffer acutely from this failure. Black people experience an entirely different justice system than white people do, and almost everybody knows it. We are treated as guilty until “exonerated.” We are judged by predominantly white juries. We are tried under laws written by white people, for white people, and approved by white people, under a Constitution written by our white captors and enslavers. Even when we are murdered, we are put on trial so that the white people who killed us can walk free. I wouldn’t wish for my worst enemy to face justice-while-Black.

And the system isn’t much kinder to women, or poor people, or people who practice a non-Christian faith or live non-heteronormative lives. There is a “justice gap” in this country, and despite nearly a century’s worth of efforts to make the justice system apply to everyone equally, the results have been underwhelming.

Now, however, there is a new tool, widely promoted by rich white people, that purports to bridge the yawning gap between these different justice systems. That tool is artificial intelligence, and its boosters are sure that the robots are here to help. They tell us that the machines can produce justice more “efficiently,” bringing fair legal resolutions to people who do not have the resources to buy expensive lawyers, or the time to wait for the slow grinding of the wheels of justice. They tell us that the algorithms can bring an unbiased approach to sentencing and bail proceedings. They tell us that while AI should never fully “replace” human judges, the large language models can be a useful analytical tool for everything from statutory interpretation to determining what words are commonly thought to mean.

According to one such booster: “Technology, especially AI, can expand legal assistance and drive costs way down. That promises to democratize justice, helping those who have long taken their lumps and done without help.” That’s not a quote from Elon Musk or Sam Altman. That’s from Stephanos Bibas, a federal judge on the Third Circuit Court of Appeals, appointed by Donald Trump.

That’s also not how it’s gonna work. AI justice is largely being designed and promoted by private businesspeople interested in creating profits, not justice. It’s a closed-source, proprietary product, meaning that the beeps and boops that constitute its “reasoning” and “decision-making” cannot be exposed, analyzed, or argued against on appeal but can be tweaked in secret whenever a wealthy tech bro doesn’t like the AI outcomes. And AI justice will ultimately be just as biased as real judges, because all it can fundamentally do is spit back out to us all of the garbage racism we’ve poured into our justice system.

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AI justice can mean a lot of things—everything from a human judge using an algorithm to advise them on how to set bail to an AI judge that assesses evidence, weighs arguments, and issues binding rulings. Some people want to limit the use of the term AI to mean just “generative AI,” and the term AI justice to apply only to situations where a computer issues a final ruling. But to my mind, a judge who pulls out Claude instead of a dictionary to look up the meaning of a word in a statute is “using AI.”

Many countries are integrating AI into their judicial processes. Estonia is using AI judges to handle its version of small-claims court. Argentina is using AI to automate various processes and even using ChatGPT to draft legal rulings. Countries from the United Kingdom to Russia to Morocco are using AI in various ways to streamline legal processes. But no place has gone as far as China. Under Xi Jinping, China is on the leading edge of the robot-judge revolution. It has implemented a number of judicial reforms, including integrating information technology into all aspects of jurisprudence to create what it calls “smart courts.” Records are digitized, hearings happen online, automation is everywhere. Most of the reforms are designed to improve jurisprudential efficiency, in accordance with the slogan “Striving to make the people feel fairness and justice in every judicial case.”

China also employs AI judges. The government claims that millions of cases each year are adjudicated by AI, including financial disputes, product-liability cases, and even civil-rights cases. According to a Law360 report on the process, the AI is embodied by a “holographic judge [who] looks like a real person but is a synthesized, 3D image of different judges.” In Beijing, AI-judged cases can go from registration to resolution in an average of 40 days, with hearings lasting 37 minutes. According to reports, 98 percent of those AI rulings are accepted by the litigants and not appealed.

While legal and cultural differences between China and the United States abound (appealing a ruling you’ve lost is as ingrained in American culture as mass shootings and stealing land), human adjudication is slow and inefficient in both places. Cases that should be easy and don’t require anything but a simple application of well-established laws get backed up in a system that moves far too slowly. Not only is justice delayed—indeed, sometimes denied—but there’s also the deadweight economic loss that comes from just waiting for a decision, any decision at all, on whether a project can move forward or a contract can be executed.

But let’s not fool ourselves. Whatever robot judges offer us in terms of efficiency, the attempt to make people “feel fairness and justice,” as the slogan goes, is just that—an attempt to make people feel—and it’s a feeling that does not survive its first contact with reality. That’s because the robot judges are not deliberating; they’re just computing. They cannot reproduce the feeling of having your argument heard and listened to, which is inherent in the very idea of “having your day in court.” Even a “fair” process can feel unjust if it’s not transparent. You might be able to see through a hologram judge, but you can never see into it. You can never see how it thinks.

Efficiency, however, is only one of the alleged benefits of AI justice. Protecting vulnerable people is another, and there are plenty of people who argue that AI can do that. One example is the Oxford Institute of Technology and Justice, cofounded by Amal Clooney and Philippa Webb, both professors at Oxford. With the tagline “Harnessing the Power of AI for Justice,” the group seeks to bring legal representation to those who need it most. In a Time article describing their efforts, Clooney and Webb say they’re working with Microsoft’s AI for Good Lab to bring AI-lawyer chatbots to women in Malawi, where “almost one in ten girls is forced into marriage before turning 15.” They say they’re working with the Committee to Protect Journalists to provide at-risk reporters with free legal support. And they’re using AI to help pro bono lawyers file orders and determine best practices while defending abused women and children.

All of that is laudable. And yet, in the very same article, Clooney and Webb note the obvious dangers of AI justice. “AI is triaging cases, drafting pleadings, assessing witness credibility through facial-expression analysis and even generating avatars of murder victims that address defendants in court…. And courts across the world are grappling with deepfakes and manipulated evidence.” Sorry, folks, but “AI…assessing witness credibility through facial-expression analysis” is precisely when I turn into Morpheus from The Matrix and lead the resistance against the machines. I will never trust a white-bred AI system to assess my Black-ass credibility based on looking at my face.

In the US, judges are already using recommendations from AI algorithms to set bail and analyze the risks of recidivism. The system is called COMPAS (which stands for Correctional Offender Management Profiling for Alternative Sanctions), and its results are… not great, if you happen to be Black.

A 2016 study of COMPAS by Pro Publica found that “black defendants were often predicted to be at a higher risk of recidivism than they actually were,” while “white defendants were often predicted to be less risky than they were.” The report further revealed that “even when controlling for prior crimes, future recidivism, age, and gender, black defendants were 77 percent more likely to be assigned higher risk scores than white defendants.”

The company that makes COMPAS (it was called Northpointe back in 2016, but now it’s known as Equivant) said it doesn’t use race as a factor in its algorithm. Then, I shit you not, it defended its racist results by saying that the results were “fair” because the program is wrong about people 40 percent of the time regardless of race. That’s true—a COMPAS score is a little more accurate than a coin flip, if that makes you feel better. But because a Black defendant is more likely to be given a higher risk score than a white defendant, Black people who lose the coin flip could face higher bail than similarly situated white defendants, and that is racist.

But there are two larger takeaways from the COMPAS story beyond the system’s obvious racial biases. First, the astute reader will notice that I’m using a 2016 study from a media organization, not a 2025 study commissioned by the Department of Justice or the Supreme Court or a state Department of Corrections. That’s because, as far as I know, those studies do not exist, and if they do, they’re not publicly available. We don’t know who, if anybody, is even keeping track of COMPAS, its accuracy, or its biases. We also don’t have a great sense of how judges are using the thing, or the extent to which those judges are aware of its failure rate and biases. COMPAS is a tool, but for all we know, we’ve handed judges a racist sledgehammer they’re using to try to plunge a toilet.

The second problem is that I can’t tell you exactly what garbage COMPAS is recycling to produce its garbage results, because COMPAS is a closed-source algorithm made by a for-profit company that claims proprietary ownership of its process. The closed-source nature of its AI (and that of similar companies) is, or should be, anathema to people interested in justice, because justice is supposed to be the most open-source process in all of democratic self-government. The public is allowed to go to a trial and see literally all of the evidence a judge or jury considers before making a decision. Judges regularly issue opinions along with their rulings explaining exactly how they came to their decisions, including which specific cases and arguments they followed or rejected while deliberating the case. Their reasoning can be analyzed, questioned, and appealed to other judges, who might come to different conclusions based on the same publicly available evidence and logic.

That’s not the case with AI. That’s because AI’s “reasoning” is not, well, reasoning; instead, it’s probability based on vast quantities of data and other hocus-pocus, and the people who set the AI in motion don’t even really understand how it works. When you try to peel back the layers of why white South Africans are dominating your Twitter feed, or why YouTube thinks your kid should watch a video essay on how Princess Peach is “too woke,” or why a Black defendant got a higher risk score than a white one, all you get is corpo-speak platitudes that cannot be independently verified by anybody. The decision-making process is as crucial to justice as the decision itself, but the very first thing AI steals from us is the ability to review its process. AI gives us a sausage and then expects us to make the potentially deadly decision to eat it while only guessing at how it was made.

Despite all this—despite the evidence of racial bias in the AI we already use and the real threat that more will be coded into the systems by private tech bros answerable to no one—it turns out that Black people might be more trusting of AI justice than white folks. A 2025 study published in the journal Behavioral Sciences asked participants if they would have more trust in a judge who relies only on their expertise to make bail and sentencing decisions, or a judge who consulted AI to make the same decision. While all groups preferred judges who relied only on human expertise, Black participants perceived judges who relied on AI to be “more fair” than their white and Hispanic counterparts.

I understand why some Black people feel like the AI would be more fair. Like them, I am well aware of what white judges are capable of. Fixing the racism, sexism, and prejudice endemic to the white judicial system has always been my goal. But so far, I don’t see how AI helps me do it. Just look at how AI justice is being regulated—or not being regulated—by the people chosen to represent our diverse, pluralistic society: Congress. Congress has passed no law regarding the development of AI’s use in the judicial system. Other countries, including China, are doing far more to regulate AI’s use in courts.

The problem is potentially even bigger than the usual congressional malfeasance. When it comes to AI justice, it’s not actually clear what powers Congress has under the constitutional separation of powers to regulate AI’s use by the judicial branch. Think of it this way: Congress can’t tell a judge’s law clerk or research assistant what to research or how to research it. Already, we have judges (they call themselves “originalists”) who functionally claim they can use a Ouija board to contact the spirit of James Madison to tell them whether a Trident II ballistic missile is a “traditional” means of self-defense protected by the Second Amendment. But Congress’s hands are tied: There’s not a damn thing it can do constitutionally to stop Clarence Thomas from using historical slop to make his rulings, so why would there be anything Congress could do to stop him from using AI slop instead?

As usual, the judicial branch is not filling the breach and regulating itself. It is the Wild West out there, with some judges using Claude (or whatever the hot AI is by the time you read this) to give them interpretations of statutory language, while others completely disregard AI as an analytical or research tool. If the judicial branch ever does deign to impose rules on itself, it’ll be people like Chief Justice John Roberts issuing “guidance” on how judges should use this technology that they almost certainly don’t understand. Roberts’s Supreme Court will either approve or overturn cases in which the evidence, research, or analysis is heavily influenced by AI, and that will be the signal for how AI should be used. I don’t know yet how he will rule on such issues, but this is where I point out that nobody elected John Roberts, and his unaccountable job functions should not include “determining how much AI is good for the rest of us.”

The people making the real decisions about the role of AI in our justice system won’t be us or even our elected representatives. It won’t really be the justices and judges either. It will be the people who design the AI models and own the for-profit companies that produce them—and these people are, to put it mildly, fucking weirdos. I can honestly say that I never sympathized with the guys who sentenced Socrates to drink hemlock until I started reading about TESCREALism, an acronym created by the scholars Timnit Gebru and Émile P. Torres to capture the truly wack mixture of interconnected beliefs held by our tech-bro overlords: transhumanism, extropianism, singularitarianism, cosmism, rationalism, effective altruism, and longtermism.

I have extensive familiarity with bad sci-fi literature and video games, but even I had to look up most of these terms. They basically add up to this: These people want to replace us all with machines and live forever in a future digital dystopia that they’re convinced will be heaven. I’m used to people playing God, but these guys think they can create God.

Still, you don’t need to understand the AI bros’ philosophy to spy that their conception of “justice” is a little different from those of the great moral philosophers, from the aforementioned Socrates to John Rawls and Derrick Bell and everyone in between. If you read Torres, you’ll discover that many of them want to create (not making this up) an intergalactic and immortal society, and if that requires some massive injustice along the way, so be it. It’s utilitarian, in a way, if you took utilitarianism to its stupidest and most genocidal conclusion.

And yet, even as I was reading about the truly dystopian beliefs of our tech-bro edgelords, I could hear the grown Black voice inside my head saying, “Sure, this all sounds bad, but have you met Justice Samuel Alito?” The promises and dangers of AI justice have to be plotted against the lived experience of the current justice system, and the juxtaposition isn’t pretty. I find myself playing the worst possible game of “Would You Rather”: Would you rather have Justice Alito or Justice MechaHitler? Would you rather have Donald Trump picking the judges, or Peter Thiel? Would you rather have Leonard Leo programming the judges, or Sam Altman?

Friends, I can’t tell you what the right answers are (which is to say, I can’t actually bring myself to write “I choose Justice Alito” without adding the coda “to be punted into the sun”). But I can tell you that a choice between evils is the right way to frame the question. AI boosters will tell you that AI justice offers the promise of nonpartisan, unbiased, purely logical decision-making—when it’s anything but. AI cannot be programmed to be fair, because we humans don’t even agree on what “fair” is. AI cannot be programmed to be just, because our definition of justice is ever-changing. AI will not make sense of all of our illogical inconsistencies; it will just digest them and spit them back out to us in some weird, uncanny form. Then, one horrible day, it will claim a Second Amendment right to defend itself, even if that leads to the deaths of schoolchildren, just like we do.

What I can also tell you is that AI justice will not be great for Black people. I understand all of the problems with the current judicial system, especially with how it treats people who look like me, but the very last thing AI can promise is fairness. Efficiency, access, speed, cost control—all of that might be on the table. But fairness? Nothing about the way AI is being developed and implemented suggests that it will be fairer, more transparent, or more just than the human-led system we currently have. And I struggle to think of a single technology yet invented that hasn’t been manipulated by white folks to cause more oppression.

From the cotton gin to Twitter, when the ruling class of whites get their hands on a new toy, they find a way to use it to promote racial and social stratification instead of using it to foster equality. There’s no earthly reason to believe AI will be any different.

We are not standing outside the gates of utopia; we’re standing outside a portal to the demon realm, and the final boss is telling us, “Choose the form of the Destructor.” If we try to not choose anything, we’re five minutes away from an AI marshmallow man wrecking our society.

On Tuesday, Senate majority leader John Thune told the Washington Examiner that the Senate is “prepared” to confirm a replacement for Justice Samuel Alito before the midterm elections should Alito retire at the end of the Supreme Court’s term this June. If anybody thought the Senate Republicans were going to follow Mitch McConnell’s rule of not confirming a Supreme Court justice in an election year—a rule that McConnell used to block Merrick Garland from succeeding Antonin Scalia but ignored so that Amy Coney Barrett could succeed Ruth Bader Ginsburg—then you haven’t been paying attention to the level of hypocrisy Republicans are comfortable living with.

On Wednesday, Donald Trump offered his own thoughts on a potential SCOTUS opening when he told Maria Bartiromo on Fox News Business that he was “prepared” to name a new justice should the opportunity arise.

Given that everybody with half a brain cell knows that Trump and the Republicans would rush through a Supreme Court pick before the midterms if given the chance, it’s a little weird that Trump and Thune said anything at all. I suppose we can chalk Trump’s statements up to his chronic inability to keep his mouth shut for more than two seconds at a stretch, but Thune is usually a little more reticent.

One possibility is that all Thune is doing with his statement is alerting the always-behind Democrats that a confirmation battle is brewing (not that Thune should be particularly worried that the Democrats can or will do anything to stop him). But I think another potential reason might be to send a direct signal to Alito himself. Thune may be signaling that he’s not sure Republicans will be in charge in the Senate should Alito delay retirement past the midterms. Thune certainly has access to polling data Alito does not, and this might be his way of telling Alito, and Alito’s wife, “Buddy, leave while you still can.”

Helping Thune telegraph this case was Senator Chuck Grassley—but from where I sit, he really screwed up the messaging. Like Thune, Grassley said that the Senate was “fully prepared” to push through a Trump nominee to the Supreme Court, but Grassley also named names. He said he was in favor of one of his colleagues, Senator Ted Cruz or Mike Lee, getting the job.

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Folks, I’ve been trying to prepare people for an imminent Alito retirement for two months now. Whenever I talk about it, liberals respond with either “Hmm, that seems bad… anyway,” or “Well, the next guy can’t be worse than Alito, right?” I can tell people about all the horrors of Andy Oldham or Jennifer Mascot or some other Federalist Society judge most people have never heard of, and I can watch the interest slowly drain from their eyes. But when Grassley floated the idea of Ted Cruz being given lifetime power, my social-media feeds blew up like the Supreme Court was on fire: “Lord help us!” “That would be the END of the Supreme Court!” “How can this be stopped?!?” Putting a face as punchable as Cruz on this thing really seemed to clue liberals into what could be about to happen.

Personally, I don’t think Cruz is likely to get the job. But I do think that he would be the easiest person for Trump to confirm. Cruz might get 99 votes in the Senate… because his colleagues hate him and would relish seeing him literally anywhere else.

If Alito retires, the Republicans will try to push through a nominee, and the only thing that could potentially stop them is a human wall of people preventing them from doing their work, and even that might not be enough. It’s going to be a long summer.

The Bad and the Ugly

• A week ago, Justice Sonia Sotomayor slammed alleged attempted rapist Brett Kavanaugh over his approval of racial profiling. Sotomayor quite pointedly suggested that Kavanaugh lacked any real-world experience with the kinds of working-class Latinos who are now being rounded up by ICE as part of racist Kavanaugh Stops. But this week, she apologized to Kavanaugh. Why!? She wasn’t wrong. I am so sick of these people pretending that they all must be friendly and respectful when the Republican justices are out there urging straight-up racism.
• Justice Ketanji Brown Jackson slammed the Supreme Court’s use of the emergency docket during a speech at Yale Law School. She’s been pretty willing to criticize her fellow justices in public. I find this refreshing. Never apologize to these people, Justice Jackson. Never let their evil slide because of a misplaced sense of decorum. Never become one of them.
• Justice Clarence Thomas slammed “progressivism” in a speech at the University of Texas Austin Law School. He said, “Progressivism seeks to replace the basic premises of the Declaration of Independence and hence our form of government.” First of all, the Declaration of Independence is not our “form of government”; the Constitution is. The Declaration led to the Articles of Confederation, a form of government so unworkable that the people who wrote it asked for a do-over after just seven years. Second, the basic premise of the Declaration is that rich white men cannot be truly free if the king doesn’t listen to them, and nobody other than rich white men should be involved in the conversation. Lastly, “progressivism” is responsible for innovative legal concepts such as “what if we didn’t have little kids working in factories,” and “lead seems bad,” so I think whatever it’s replacing is probably a net gain for society.
• More than 70 organizations are trying to stop Meta from putting facial recognition eyeglasses on the market, warning that the technology will help arm sexual predators. If only Meta could be doused in the cleansing fire of progressivism.
• This article in Slate argues that liberals on BlueSky are the only people who haven’t gotten over Maine Senate candidate Graham Platner’s Nazi tattoo. I can confirm that. As a liberal on BlueSky, I have not gotten over Graham Platner’s Nazi tattoo. I am comfortable being “out of touch,” if being in-touch requires me to get over Graham Platner’s Nazi tattoo. When Platner turns into John Fetterman with a Nazi tattoo, I will be the guy saying, “All of this could have been avoided by not getting over Graham Platner’s Nazi tattoo.”

Inspired Takes

• In 452, Pope Leo I faced down Attila the Hun, unarmed, and convinced him to turn back from Italy and spare the eternal city of Rome. (History note: In addition to his fancy hat, Leo also benefited from a literal plague ravishing Attila’s army and an advancing Eastern Roman army threatening to cut off Attila’s supply lines). In 2026, Pope Leo XIV is facing down Orange the Hun, unarmed, and convincing him not to “do a Red Cross” or whatever, because, you know, claiming to be the second coming of Jesus is a literal sign of the Antichrist. In this piece here, The Nation’s Joan Walsh explains Trump’s bizarre and ill-fated feud with the pope.
• I want you to read this story in The Nation from Will Meyer about Ross Douthat. (Full disclosure: I am biased. I knew Douthat, a little, in college. A colleague once told me that the way white people feel about affirmative action is the way I feel about Ross Douthat. And… I got it.)

Worst Argument of the Week

Eric Swalwell dropped out of the California gubernatorial primary and resigned from Congress amid a slew of sexual assault allegations. During the brief period between the allegations dropping and Swalwell dropping out, I saw a number of posts on social media, from liberals, pointing out that Republicans defend their stars even in the face of sexual assault allegations, while Democrats are eager to throw their stars overboard at the slightest hint of sexual misconduct.

Yes. And? Is there some kind of problem with that? I am willing to stipulate that Republicans will defend politicians who have “merely” been accused of sexual assault. Republicans are also willing to defend politicians who have been judged to have committed sexual assault. They are also willing to defend Nazis, white supremacists, and bigots of all kinds. They’re willing to defend war criminals, financial criminals, and literally any cop or wannabe cop who shoots an unarmed Black person.

I do not take my cues on which alleged crimes should or should not be overlooked based on the moral compass of the Republican fucking Party.

The difference between me and a rank-and-file Republican voter is not just that I’m a superior human being, although I am. The difference is that I never believe that there is only one person who can do a good job of being in a position of public trust. I think there are many, many people who can do a good job in Congress. I think there are many people who can make a good governor. I think there are far, far more people who can competently be president of the United States than there are people who can fly a spaceship or play quarterback in the NFL. (And the spaceship driver and football chucker don’t require me to bless them with my personal stamp of approval to do their job.)

If one politician is credibly accused of rape, we can always find another guy. Or, you know, not to blow your mind here, but we could even find a woman to do the job.

Eric Swalwell will have the opportunity to defend himself through all legal means, and he will be well-funded when he does it. If he is acquitted once all the facts are laid out, I’m sure he’ll feel no hesitation about asking the public to place their trust in him once more. People can decide then what to do about his public career. In the meantime, there are plenty of people who have not been accused of sexual assault by multiple women who are also more than capable of being the governor of California.

What I Wrote

All print for me this week. Also, my kid got Covid. It was the first time either of my children had gotten it, and I was pretty freaked out for a bit. I hadn’t gotten the memo that Covid was just a thing that we’ve all decided to live with. I went straight into 2020 mode and everybody else was like, “What’s… wrong with you?” Anyway, point is, I think I’m pretty clearly entering my “In my day, we kept children in isolation for 10 days when they got sick, and gas cost under $10 a gallon, and people went on dates with real people instead of AI-powered fleshbots who serve you an ad before dessert” villain arc.

In News Unrelated to the Current Chaos

This week, Donald Trump had McDonalds delivered to the Oval Office via Door Dash. He posed for a picture with the delivery person, a woman named Sharon Simmons, who was wearing a shirt emblazoned with the words “Door Dash Grandma.” Simmons, 58, later told Fox News that Trump’s “No Tax on Tips” policy helped her pay for medical treatments for her husband, who has cancer.

Every. Single. Thing about this story makes me incandescently angry. Every single aspect fills me with rage. Let’s get the easy stuff out of the way:

• A 79-year-old man who has access to personal chefs and the finest ingredients in the country but still eats McDonalds is not “relatable” to me. He’s not “salt of the earth.” He’s just cheap.
• The picture he took with the woman reminded me that Trump has plastered the words “The Oval Office,” painted in yellow or “pee” or whatever color Trump thinks gold is, outside the Oval Office, as if he can’t remember what room it is without proper signage.
• Door Dash does not deliver to the door to the Oval Office. Door Dash cannot get past the doorman in your apartment building, much less the Secret Service. Door Dash admitted that the whole thing was a publicity stunt organized by the White House to highlight the year since the passage of the No Tax on Tips provision.
• Sharon Simmons is not a Door Dash worker from DC. Black people work Door Dash in DC. Simmons was flown in from Arkansas to participate in this farce.
• Simmons is not even some random Trump supporter from Arkansas. She was an advocate for the No Tax on Tips provision and even gave congressional testimony on the issue. She was an activist for the bill.

All of these facts made me rage. But the thing that made me truly apoplectic was Simmons’s line crediting No Tax on Tips for helping her earn an additional $11,000, which she says helps her afford her husband’s cancer treatments. She told Fox she wanted to thank the president for that. Fox, it’s worth noting, did not ask her how much Trump’s gas prices are cutting into those savings. Or why her healthcare costs so much, or where Trump’s healthcare plan is, or how much funding has been cut from cancer research in the name of eliminating DEI.

In a reasonable country, the president would be thanked for providing some form of [Samuel L. Jackson voice] universal-mutherfuckin’-health care, not thanked for tipping on an order of Big Macs. The idea that this woman should be thankful to her government for tips, for functional scraps, while she shoulders the burden of ruinously expensive healthcare without the government’s care or concern is simply maddening.

Indeed, the idea that any 58-year-old grandma needs the gig economy to offset healthcare bills is an indictment of our entire society. Like, how is it possibly okay that grandmas have to deliver quarter-pounders to afford chemotherapy for their husbands? Could our government, you know, HELP this woman, and the millions and millions of people like her, instead of turning her wage-slave exploitation into a fucking photo opportunity?

The No Tax on Tips stunt should be seen as an embarrassment for the entire country. It’s embarrassing that the president has super-glued room names outside his office. It’s embarrassing that so many people must rely on the gig economy to earn a living. It’s embarrassing we have 58-year-old grandmas out there participating in that economy to afford healthcare. It’s embarrassing that the government thinks “Door Dash Grandma” is a helpful photo op about the state of the economy in an election year. It’s embarrassing that the president has evidently never tried Shake Shack, and it’s even more embarrassing if he has.

I only hope that when future history textbooks start their section on “The Decline and Fall of the American Hegemony,” they use the photo from this event.

***

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Let’s start with a rare ray of good news. In Wisconsin, liberal judge Chris Taylor absolutely boat-raced her Republican opponent, Maria Lazar. The victory gives Democrats a 5–2 advantage on the Wisconsin state Supreme Court and ensures that Democrats will control the court during the 2028 presidential election cycle.

People might remember last year’s Wisconsin Supreme Court race—the one that Elon Musk tried to buy, the one that became the most expensive judicial election in history. The GOP candidate lost anyway, and Democrats took control of the court for the first time in 15 years.

This year, the stakes weren’t as stark. Taylor and Lazar were running to replace a Republican judge, meaning that even if Lazar won, Republicans would still have been in the minority (3–4) on the court. Moreover, Musk and all of the Republican-aligned PACs kept their money in their pockets, meaning that Taylor was actually able to outspend Lazar. Turnout was low.

Still, Taylor didn’t just beat Lazar in the liberal strongholds of Milwaukee and Madison; she beat Lazar in rural Wisconsin, flipping 29 counties that went for Trump in 2024. In some places, she shifted those counties to the left by 33 points.

I don’t want to read too much into these results. A low-stakes, low-turnout judicial election is not really an analogue for the November midterms. But it’s another example of a problem Republicans have had throughout the Trump era: Trump voters show up for Trump; they don’t turn out in numbers when Trump’s name is not on the ballot.

The problem with running a cult of personality is that, eventually, the cult leader dies, and his personality goes with him. The post-Trump Republican Party is, frankly, unknowable at this point. Even they don’t know what they’re going to do once he’s gone. People will be vying to be “the next Trump” for the rest of our natural lives. And we simply have no idea what lies or stupidity Trump’s voters will believe next.

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In the meantime, Trump’s name will not appear on any ballot this November. If Trump actually allows us to have a normal election, that could be very bad for his party.

The Bad and the Ugly

• The second-most-terrifying story this week (second to Trump’s threats to wipe out an entire civilization) was this New York Times report about silicon sampling. No, it’s not a story about tech bros licking sand to find more material for their data centers, though it would be nice if they tried that. It’s about a poll that was recently published where the responses to the poll were generated by AI. Our tech overlords are literally trying to obviate the need to ask the public their actual opinions, in an opinion poll, and instead just use AI to tell us what opinions we hold. It’s straight-up dystopian.
• A group of Latino New Yorkers has filed a massive class-action lawsuit against ICE alleging racial profiling. They argue that ICE is targeting Latinos for stops and arrests without any reasonable assessment of their citizenship status. This is precisely the scenario alleged attempted rapist Brett Kavanaugh gave his blessing to in a shadow docket ruling last year that centered on ICE’s occupation of Los Angeles. In that case, ICE’s unconstitutional racism was not the central issue, but it will be in this one when it undoubtedly makes its way to the Supreme Court in a couple of years.
• We learned this week that Justice Samuel Alito was briefly hospitalized two weeks ago for “dehydration.” I continue to believe that Alito will announce his retirement in June so he can be replaced by Trump before the midterms.
• The Third Circuit Court of Appeals blocked an attempt by the state of New Jersey to regulate Kalshi and other “prediction markets.” The court essentially said that the sites are not a form of sports gambling but are effectively contractual “swaps,” meaning that the only appropriate regulator is the Commodities Futures Trading Commission. See, to me, this only proves that commodities trading is also a form of gambling and should be regulated as such… but nooo, when rich people do it, it’s not “gambling,” it’s “finance.”  
• U.S. News & World Report released its first ranking of American law schools in 1987. Yale Law School was number one. Yale has been number one every single year that the law school rankings have existed—until now. This year’s USN rankings put Stanford at number one, with Yale falling into a tie for number two with the University of Chicago. I have not read up on the vagaries of how USN produces its rankings, so I’m just going to chalk this up to Yale finally getting dinged for producing JD Vance.

Inspired Takes

• Elizabeth Spiers goes deep on the anti-intellectualism of the tech-bro mafia for The Nation.
• I wrote last week that I think Trump is going to lose his birthright citizenship case in front of the Supreme Court. But Jay Willis writes that such a loss might only be temporary, as this case likely marks the beginning of the white-wing crusade against birthright citizenship. Since the right defeated Roe v. Wade, it has been looking for a new legal cause to motivate voters to give them continued control of the courts, and this might be it.
• Lawyer David R. Lurie wrote “A Regime of Idiots; A Complete Inventory of Trump Stooges,” in which he broke down every category of stooge Trump has surrounded himself with. This is a Darwin Award–level taxonomy of stupidity and incompetence.

Worst Argument of the Week

One of the stooges Lurie highlights—in fact, the very first stooge he highlights—is acting Attorney General Todd Blanche. Blanche is a former defense lawyer for Trump, a man who got that job because no “good” lawyer would take it, and who has now leveraged his willingness to debase himself for Trump to become the top dog at the Department of Justice.

Blanche summed up his personal raison d’être at a press conference this week when he said: “If [Trump] chooses to nominate somebody else and asks me to go do something else, I will say, ‘Thank you very much. I love you, sir.’” The attorney general is supposed to be the lawyer for the American people, not the president’s number-one stan, but the guy running the joint—at least until Trump nominates his next attorney general—goes weak in the knees for the criminal in chief.

What’s wild about the elevation of Blanche is that the woman he replaced, Pam Bondi, also showed devout loyalty to Trump. She was unceremoniously fired last month—but not because she stood up to Trump or failed to carry out some policy he favored. She was fired because those policies were flatly illegal or unconstitutional, and she lost repeatedly in court.

The fact that Trump thinks Blanche can do better shows that Trump fundamentally misunderstands the nature of his problem. Trump reportedly said that Bondi lacked “smarts and guts.” He’s not wrong: Bondi showed herself to be not very smart and obviously lacked the “guts” to stand up to Trump’s maniac schemes. But Blanche is no better: He’s just as much of an intellectual lightweight as Bondi, and he appears to be even more gutless.

But finding a dumber, more pliable AG than Bondi is not going to reverse Trump’s fortunes in the lower courts. Trump loses because his orders are illegal. If he orders Blanche to do illegal things, Blanche will also lose. That’s just the way this goes. No matter how many times you jump off your roof, you will always fall, and you will likely hurt yourself unless John Roberts is there to catch you.

The assumed difference between Bondi and Blanche (or whomever Trump eventually lands on for the job—other contenders allegedly include former representative Lee Zeldin and former wino Jeanine Pirro) is that Bondi did not prosecute Trump’s political enemies, while the next AG will. But there is just no evidence that Bondi was unwilling to prosecute Trump’s enemies, or that Blanche will succeed if he does.

Unlike Trump, his political enemies have committed no crimes. There’s only so much a prosecutor can do to prosecute a person who has committed no crimes. Judges, even Trump-aligned judges, dismiss cases that are brought against people who have committed no crimes.

Bondi was a terrible AG. Blanche will be a terrible AG. Whoever Trump picks after he tires of Blanche will be a terrible AG. But I guess I disagree with many Democrats who say that the next person after Bondi will be “worse.” I think we already are at the bottom of this particular barrel. To be worse than Bondi or Blanche, you actually have to be smarter than them. More crafty. More able to sanewash Trump’s facially illegal desires into something resembling lawful conduct.

Trump does not pick smart people. He does not pick people who will redirect his worst impulses into something that can pass legal muster. He only wants sycophants, so sycophants will be all that he gets.

What I Wrote

Impeachment today, impeachment tomorrow, impeachment forever. Trump has threatened genocide against the people of Iran, and we have to try to remove him from office, I wrote.

In News Unrelated to the Current Chaos

It’s tax season. I don’t know anything about “taxes”; my wife is the mathlete in the family. I also don’t know about tax law. My theory is that you can only be intellectually present for a finite number of legal classes before your brain rebels out of sheer boredom and makes you seek the dopamine rush of illicit drugs, so “tax” was the time I allowed my brain to go fallow and play Everquest in law school.

But while doomscrolling social media this week, I saw that The Washington Post re-promoted a story from earlier this year (I no longer subscribe) about a lawyer suing the IRS to get her dog claimed as a dependent for tax purposes.

I have thoughts on this! Not expert tax-law thoughts (again, snooooooze), but general animal-law thoughts (a seminar in which I did pay attention). Here is my unified theory of everything when it comes to animal law: We need an entirely different category of law for animals.

I know that sounds circular, but hear me out. Currently, the law treats animals, including pets, as mere “property.” We have some laws that deal with animal cruelty (laws that are woefully under-enforced, as I’ve written about before)—but in the main, animals are the property of their “owners,” who are free to do with them as they please, within reason.

This is wrong. Animals are not property. They’re not inanimate objects. The law should not treat them like a semiconscious throw rug or office furniture that occasionally poops.

The most commonly proposed alternative to the current state of the law is to give animals people rights, and treat them like something approaching human children. This is also wrong. Animals are not people. They’re not children. And whenever I think about how inadequately this country protects actual children—from school shootings to Epstein to the environment—the idea of people running up to me to tell me that their freaking dog deserves the same rights we can’t even secure for my Black-ass kids just makes me angry.

Of course, I love our family dog with nearly the same passion that I have for my human children, so I get where people are coming from. Which is why I believe so strongly that protecting these precious beasts by analogy to things they are not does them a disservice. They’re not property, not children—they are their own thing and should be treated as their own thing under the law.

Does a person have a right to tax relief for taking care of their dog? No. Of course not. It’s a fucking dog. Pay your taxes so human children can have roads and schools. But should a person be able to access affordable healthcare for their pup? Of course. It’s a fucking dog, a living, breathing animal who should not have to suffer while the owner makes a choice between food and healthcare. (I’m focusing on dogs, because I’m allergic to cats and also don’t trust them, but, you know, cats, bears, snakes, Philadelphia Phillies fans, insert your animal of choice). Should a dog have rights that extend to it regardless of who “owns” it? Yes. Does that mean I can’t put my dog on a leash because I’d never do that to my kids? No. And also, don’t tempt me with leashes for kids.

I haven’t thought through all the contours and possible permutations of this. As with any legal canon, it would be developed over time. In my own version, I tend to make a hard distinction between animals that are delicious and animals that are not, but I’m not sure if such a distinction could or should hold up in court.

My simple point is this: Animals should have rights. Those rights should not fall under property rights and should also be different from people rights. Those rights should flow to the animals, not the people claiming ownership over the animals.

And, yes, thinking of a more robust conception of animal rights naturally leads to a much more robust conception of environmental rights for all the animals we thankfully have not yet caged or driven to extinction. Thanks for asking.

***

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Ninety minutes before his self-imposed deadline for commencing a genocide against an entire “civilization,” Donald Trump announced a temporary ceasefire in the war he started for no reason against Iran. The particulars of the “deal” do not concern me—although I understand ships will have to pay to pass through a strait they could once traverse for free. What does concern me is: We now have two weeks to remove the homicidal maniac running the country before he threatens the peace of the world again. The responsibility lies entirely with the American people, and their representatives in Congress, to prevent further catastrophe. If we fail to do so, whatever happens next will be our fault.

Rarely has a people been given such an opportunity to stop the madness of their government. In most evil regimes, the ruler is so far removed from accountability that he cannot be touched or legitimately restrained. Usually, this ruler fully oppresses his own people before attempting to commit atrocities around the world. In those situations, only illegal regime change can remove a leader willing to commit war crimes to accomplish his goals.

But we are lucky. We have several legal ways to remove our despot before he is allowed to commit additional horrors. We must use these methods now. If we do not, we are in every way complicit in the atrocities to come. This is our moment, and if we fail, history will not just blame Trump and his MAGA acolytes for terrorizing the world; it will also blame us, the ineffectual opposition. And it will be right to do so.

Given the immediacy of the problem, a number of commentators and congresspeople have looked to the 25th Amendment. The amendment, in theory, allows for the immediate removal of the president based on a declaration by the vice president and a majority of the president’s cabinet that the president is “unfit” to continue holding office.

I, too, would like to think the 25th Amendment would solve all our problems. It would be fast; it would be direct. But as much as the amendment might sound like a silver bullet, it’s really not. First, you’d have to get JD Vance on board, which… is not going to happen. Vance was apparently against the war, yet fell in line behind the president, and then went to Hungary to lick a different authoritarian’s boots. Vance has less dignity than Mike Pence, and Pence stuck with Trump until Trump tried to have him killed. There is simply no way Vance invokes the 25th Amendment.

And don’t even get me started on Trump’s handpicked cabinet. Not a single one of them can be counted on to say that Trump is unfit to lead—not Secretary of War Crimes Pete Hegseth; not the Trump defense attorney now running the Department of Justice; not the reality-TV show dude leading the Department of Transportation. No one.

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But even if Vance and the cabinet were visited by the ghost of nuclear holocaust future and did invoke the 25th Amendment, the president can simply say “Wrong”—and then immediately resume power. The VP and the cabinet then have to vote to remove the president again, for a second time, in the face of the president’s open opposition, and then the question is kicked to Congress, where both chambers are required to vote to remove the president and install the VP in his place.

But there’s a second option—which is the original (constitutionally speaking), and to my mind easiest, way to remove Trump: impeachment. Since Trump has been impeached twice before, everybody should know the drill. Impeachment is a charge that is brought by a simple majority vote in the House. The trial on those charges takes place in the Senate, where a two-thirds majority is required to convict and then remove the president from office.

Given the fact that Trump has been through this twice—and survived, it might sound pointless to try this all again. But here’s why I think the most common arguments against trying to impeach Trump again are wrong.

What’s going to be different the third time?

I’d like to think the reality of an illegal, unpopolar, and flagrantly criminal war of choice will make this time different, but I am not (that) naïve. I know that most Republican senators would rather see Iran nuked, and risk dirty bombs exploding in Penn Station, than risk losing a primary to a more MAGA challenger. You don’t get to be a GOP senator without an overwhelming disregard for the well-being of others.

But two things have changed since Trump’s last two impeachments, one legal and the other political. The legal change is significant. When Trump escaped conviction over January 6, then–Senate majority leader Mitch McConnell said, “President Trump is still liable for everything he did while he was in office.” I do think McConnell believed that when he said it. And it was true, when he said it. But it’s not true anymore. The Supreme Court has since declared that Trump is immune from prosecutions for criminal actions he takes while in office. If Trump is impeached again, the Senate will know that conviction in the Senate is the only form of accountability Trump will ever face.

The political change is that Trump is now a lame-duck president. Granted, during the second impeachment, Trump was functionally out of office and most people didn’t think he’d ever run again. But this time, he can’t run. Impeachment and removal would end the Trump era with more finality than anything we’ve seen before. There might be some senators interested in that.

Is that enough to get us 67 votes for conviction on an impeachment charge? Probably not. Again, I’m not stupid. But conviction isn’t the only way to accomplish the most essential goal.

Trump will not be restrained by the long process of impeachment, so why bother?

Oh, I beg to differ. If your goal is to “make Trump behave like a normal president,” that battle is lost. My goal is not to make Trump “behave”; my goal is to prevent him from unleashing America’s nuclear arsenal in an attempt to obliterate Iran, or whichever non-white nation pisses Trump off next. I think impeachment can go a great way towards restraining that behavior. I do not think a president seriously under threat of impeachment will want to start dropping nukes. I do not think Trump would want to turn his trial into a Senate referendum on the illegal war he started. Even in the face of a likely acquittal, impeachment, and the credible threat of impeachment, might be the only thing that keeps Trump’s war crimes “conventional.” I don’t necessarily think impeachment alone stops Trump’s illegal war; for that, we have to get all the way to “conviction” and removal. But I do think impeachment keeps the irradiation of an entire people off the table.

Your theories are intriguing, and I would like to subscribe to your newsletter, but perhaps we should revisit them in eight months should Democrats assume control of the House

No, the time to try to impeach is now. Again, charges in the House only require a simple majority and there might be right now the few Republican votes necessary to get this process rolling. Remember, Trump’s war is unpopular, even with many of his usual racist supplicants. Trump wants to play brinksmanship with World War Three every fortnight. The world cannot be held hostage by a nuke-rattling madman every time new information leaks from the Epstein files. Impeachment and removal, or at least the possibility of removal, is the only political action left to elected representatives of conscience.

The Democrats should be leading that charge. The current posture of the party can be summed up as: “This dangerous psychopath will kill us all. Sadly, there’s nothing we can do until November, but you know who could show real courage right now? JD Vance. He would be greeted as a liberator.”

How is this leadership? How is it that Democrats are scrambling around calling on their enemy’s pool boy to put country over party (and his own political career), while they refuse to put their careers (or bodies) on the line to stop a global atrocity?

For Democrats, impeachment should be the floor. It should be the least they’re willing to do. “I will support articles of impeachment” should be the secret phrase Democrats have to say before being allowed access to the cloakroom.

On the upper end, Democrats should be trying to bring the government to a grinding halt until the genocidal maniac is removed from office. Elected representatives throughout history have literally walked out and refused to participate in governments as evil as ours is right now. At some point, you have to decide to be Charles de Gaulle or you become Philippe Pétain.

Our representatives wouldn’t even have to go into freaking exile the way de Gaulle did. They just have to use every legal means available to remove Trump from office, and use every shred of political power to stop a mass murder from happening.

You know what’s even better than a filibuster? A human wall of elected officials preventing the House and the Senate chambers from opening their doors, preventing the government from doing business, until Trump is impeached and removed.

And politicians aren’t the only ones who have an obligation to act. It’s easy to focus on elected officials because they are the ones who have political power and platform. They are the ones who literally asked to lead. But the moral imperative of the moment also extends to the rest of us. The burden of democracy is that we are all collectively responsible for the actions of our government. We cannot simply say that the actions of a powerful few have nothing to do with the rest of us. Not in our system of government.

I don’t know what it is that you do. I write. I argue. Those are my skills. Right now, I’m trying to use those skills to write and argue against a president intent on committing war crimes. Whatever it is that you do, whatever your skills are, I would implore you to use them to fight against our evil government. All skills are needed, and any skill can have value against this man. Perhaps your skill is raising money? Spend some time raising money to support anti-war efforts. Perhaps your skill is organizing documents? Spend some time helping activists organize their resistance. Perhaps your skill is playing video games? Spend some time arguing in the forums that atrocities should only be inflicted in-game and cannot be allowed in real life.

Earlier this week, I despaired on social media that the country was just waiting around to see if a global calamity would be prosecuted “in our name.” So many people responded “not in my name.” The response seemed to me to miss the point. It’s not enough to say, “I didn’t vote for this.” Not when the threat of mass atrocity is on the line. It’s not enough to go out like Homer Simpson and content ourselves by saying, “Don’t blame me, I voted for Kodos.”

There may be no way we can stop the madman in the White House. But if the worst comes to pass, it won’t matter if it was somebody else’s fault. The Iranian people won’t be huddled in a fallout shelter thinking, “It’s a shame JD Vance didn’t have more courage.” They’ll be thinking that Americans, all of us, are to blame for our country’s crimes. We will have no answer for the charge, and our only response must be that we did everything we could think of to prevent the evil.

Trump cannot destroy “a whole civilization,” even if he tries. What he can do is kill an incalculable number of innocent people. He must be stopped. We must impeach and remove Trump from office. We must, at least, try.

On Wednesday, Donald Trump’s executive order challenging birthright citizenship got its day at the Supreme Court. In honor of the occasion—or, more likely, in a foolish attempt at intimidating his handpicked justices—Trump briefly attended oral arguments, marking the first time in recorded history that a sitting president has come to a Supreme Court hearing.

The case pits Trump’s deeply held anti-immigrant bigotry against the clear language of the 14th Amendment and nearly 130 years of Supreme Court precedent. At its heart is the question of whether the president can change the meaning of the Constitution to prevent children born on US soil to undocumented immigrants and temporary travelers from being citizens. It’s the highest-profile case of the court’s term—and Trump got crushed. He will not lose 9–0, as he should. His crusade against immigrants and their children will continue in other forms. But I believe Trump will lose this case. And given the Republican and MAGA-aligned composition of the Supreme Court, that will have to be enough for now.

The case is called Trump v. Barbara—with “Barbara” being a pseudonym for a plaintiff represented by the ACLU who challenged Trump’s executive order. The ACLU’s argument is simple: Birthright citizenship is conferred on all people who are born within the territory of the United States by virtue of the 14th Amendment. The first sentence of the first section of that amendment states: “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.”

This is all the evidence the plaintiffs need. Pointing to this clause of the 14th Amendment is like Tom Brady responding to the question “Were you a good quarterback?” by pointing to the Super Bowl rings on his fingers. Still, the plaintiffs have even more law on their side if they want it: a 1898 case by the name of United States v. Wong Kim Ark. In that case, the citizenship of a child born in the United States to Chinese-American parents was challenged. The court ruled that the child was a citizen because he was born in San Francisco, which is where his parents were living at the time of his birth. In terms of birthright citizenship, that case should be game, set, match.

In response, the Trump administration, as represented by US Solicitor General John Sauer, made a series of wild arguments steeped in bigotry and xenophobia. First, the administration argued that the 14th Amendment was a narrow, time-specific intervention that applied only to the enslaved people freed by the Civil War. While it is true that the 14th Amendment directly overturned the Dred Scott decision (which held that no slave—and, indeed, no Black person—could become a citizen), the text, which I just quoted for you, makes it unequivocally clear that Trump and Sauer are wrong. It does not say, “All formerly enslaved persons”; it says, “All persons.”

Next, the Trump administration tried to get around the obvious implications of the Wong Kim Ark ruling by arguing that it applied only to children born to parents who are either “domiciled” in the United States or who owe “allegiance” to the United States. In court, Sauer argued that undocumented immigrants and temporary foreign visitors can never be lawfully “domiciled” in the US nor owe allegiance to this country, and therefore their children cannot be citizens.

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This argument is bollocks. During oral arguments, six of the justices ripped it apart.

The ripping started almost immediately, with Chief Justice John Roberts telling Sauer that the sources he was using as evidence were “quirky.” Justice Elena Kagan followed up by observing that Sauer was using some “pretty obscure sources.” Roberts and Kagan were actually being nice; those “sources” were not merely “quirky” and “obscure”; they were the writings of straight-up white supremacists who tried to undermine the 14th Amendment by arguing openly for a white ethno-state where Chinese Americans could never be citizens. Sauer relied in particular on the work of Alexander Porter Morse, a white supremacist lawyer who argued Plessy v. Ferguson on behalf of the segregationists. He also argued against Wong Kim Ark, saying that “transient” people are not sufficiently connected to the United States to confer citizenship onto their children. The fact that Roberts and Kagan noted, however politely, that Sauer’s sources are reprehensible racists, is significant.

Later in the hearing, Roberts also questioned one of Trump’s stated reasons for rewriting the Constitution. Trump and his MAGA allies have repeatedly said the executive order is needed to stop “birth tourism”—which is the idea that tourists come to the United States to have children specifically so their children can have US citizenship. Roberts asked if Sauer had any evidence that birth tourism is really a thing. Sauer cited (not making this up) unnamed Chinese media reports. Roberts did not sound impressed. He responded by asking Sauer to agree that such reports should not impact the legal analysis of the 14th Amendment or Wong Kim Ark. Sauer, amazingly, said it should, because we’re “living in a different world” from Wong Kim Ark, where citizenship is potentially a mere “plane ride away.”

That led Roberts to proclaim a phrase that will probably be etched onto his tombstone: “It’s a different world, but it’s the same Constitution.”

I do not think Roberts is on board with rewriting that Constitution to appease Trump and his Chinese media sources.

Assuming the liberals agree (and, just trust me here, there is nothing that Justices Kagan, Sonia Sotomayor, and Ketanji Brown Jackson said that suggested they were even slightly interested in Sauer’s arguments), that brings us to four votes to uphold birthright citizenship.

A fifth vote can almost surely be found from Justice Amy Coney Barrett. She really homed in on the difference between two jargony terms: jus sanguinis versus jus soli. Jus sanguinis (right of blood) is the idea that citizenship flows from the citizenship status of your parents; jus soli (right of soil) is the idea that citizenship flows from where you are born. Sauer and MAGA have been arguing that we should do citizenship by right of blood. But Barrett’s questions heavily favored the right-of-soil approach, and she (along with Justice Jackson) seemed to be trying to show that Sauer’s position was not just antithetical to how citizenship has always been done in the US since the 14th Amendment essentially invented the concept of a US Citizen (as opposed to a citizen of an individual state), but is also unworkable.

Barrett took particular issue with Sauer’s formulation of “allegiance,” questioning how the Trump administration could know whether a parent “owed allegiance” to the United States or not. She then brought up the case of captured Africans, illegally brought here even after the slave trade was officially outlawed. She said that, under Sauer’s reasoning, those people could not be lawfully “domiciled” in the US, since they were brought here illegally. She also argued that the captives would obviously want to “escape” back to their home countries as soon as possible, thus proving that they owed no allegiance to the US. And yet, the US treated their children as citizens.

Sauer responded (and, again, I couldn’t possibly make up this level of idiocy) that former slaves always had the “intent to remain” in the US, thus proving their allegiance to the country. Pro tip for any white people out there: When your argument requires inventing apocryphal Black people who love their captors, you’ve lost. You should shut up, sit in a corner, and rethink your life’s choices.

And that wasn’t even the best line by Barrett. In a different colloquy with Sauer, she asked about “foundlings”—children “found” in the US whose parents cannot be identified. Sauer said that there were, potentially, statutory protections for these children, and she cut him off by saying: “Yeah, yeah, yeah, but what about the Constitution?” Sauer did not have a good answer for that whole “Constitution” thing. And this is where I gently remind you that Barrett is the mother of adopted children and probably does not put a lot of weight behind the idea that “blood” determines “citizenship.”

Barrett likely brings us to five votes in favor of birthright citizenship, but wait, there’s more, because Justice Neil Gorsuch was also triggered. Gorsuch’s first question was about the issue of what “domiciled” actually means, and he seemed unsatisfied with Sauer’s various answers. Then Sauer really stepped in it when Gorsuch asked, “Would Native Americans be citizens under your standards?” Sauer said, “I’d have to think about it.” Folks, if you know one thing about Neil Gorsuch, it should be that he cares deeply about the rights of Native Americans. It is borderline malpractice to go before the Supreme Court and not be prepared to answer a question from Gorsuch about how your argument impacts Native Americans.

This doesn’t mean Gorsuch is a definite “Yes” for birthright citizenship. He seems like a little less of a sure thing than Roberts or Barrett, because he was more concerned with the domiciled question than they were and pushed the ACLU’s lawyer (Cecilla Wang, who did an excellent job) on the point. He didn’t seem to like Wang’s answers to his questions either. But I think Gorsuch will ultimately uphold birthright citizenship because he considers even out-of-status immigrants as domiciled in the US, at least until Congress explicitly says they’re not.

Friends, six votes is more than enough for me in this case. But there’s a chance we could get to seven, depending on which way the wind is blowing through alleged attempted rapist Brett Kavanaugh’s empty head. On the one hand, Kavanaugh seemed to try to argue that, while Congress probably can change the constitutional definition of citizenship, Trump probably cannot. On the other, Kavanaugh was also the one of the justices who brought up the part of the case I thought would be front and center if Trump were going to win: the difference between people lawfully in the country, if only temporarily, versus people unlawfully in the country, regardless of how long they’ve been here.

I expected the Republican justices to harp on this point ad nauseam, arguing that, no matter what the Constitution or Wong Kim Ark say, a parent who is not allowed to be here can never confer citizenship on a child subsequently born here. But only Kavanaugh (and Alito) brought it up, and only to Wang (he didn’t throw it out there to help Sauer while he was floundering), and even then he didn’t belabor the point. I won’t know Kavanaugh’s vote until I see it, but if you want to argue that he’s actually a seventh vote to uphold birthright citizenship (with one of his classic four-paragraph concurrences where he tries to appease all sides), it would be a reasonable bet.

Getting to eight votes will be harder, but not impossible. That’s because I don’t think Justice Clarence Thomas fully bought Trump and Sauer’s argument. Thomas asked three questions (which is a lot for him), and only one was obviously helpful to Sauer. Thomas seems to agree with Sauer’s initial point about the 14th Amendment: that it applies to former slaves and former slaves only. He pointed out (correctly) that immigration was not really a focus in the discussions surrounding ratification of the 14th Amendment. But his first question was whether Sauer’s position would lead to different citizenship status depending on the state you’re born in (which I think Thomas thinks would be bad). And he really didn’t give any opinion on the argument over Wong Kim Ark and whether birthright citizenship for all was confirmed in that case, over and above what the 14th Amendment offered. I wouldn’t say Thomas is a likely vote to uphold birthright citizenship, but he didn’t sit there like a troll under the bridge who thinks history ended in 1865 like he usually does.

But that’s where the winning streak ends. There is no chance that we’ll get to nine votes, because Justice Samuel Alito’s brain remains entirely pickled by Fox News. Late-stage Alito is always good for one absolutely insane analogy, and, in this case, it was about the specter of an “Iranian immigrant” who comes to this country to give birth to a child so that child can eventually be raised as some kind of sleeper-cell agent waiting to be deployed against America.

Alito is gone. There is no hope for him. But there surely is hope for the rest of us. Trump will lose, 5–4 at least, and it’s not beyond reason that he could lose by a stunning 8–1.

Which raises the question: Why is this stupid case even here in the first place? Trump’s arguments bear almost no relation to the law or how the law has been interpreted for over 100 years. Trump repeatedly lost this case in lower courts, meaning the Supreme Court didn’t even have to grant him a hearing. Why are we being dragged through this spectacle to fight the facially unconstitutional proposition that Trump can change the meaning of the Constitution through executive order?

My best guess, after listening to the oral arguments, is that Roberts wanted to make a bit of a show of “standing up to Trump” on a fundamentally easy case. Roberts and his cabal want to say no to this argument, and then bathe in all the “the Supreme Court is an independent institution” stories that will surely follow. Defeating Trump in this case, loudly and thoroughly, gives the Republican justices cover (they think) for all the other times they capitulate to the Trump administration. Trump’s birthright citizenship argument is a straw man, a device designed to be beaten so the court can show how strong it is.

It will probably work. The media is just addled enough to make it work. Trump will lose birthright citizenship, then have a complete meltdown, and the court’s Republican supermajority, which is just about to gut the Voting Rights Act, will be made to seem reasonable by comparison.

Sadly, I’ll take it. Because there have been other easy cases that the court should have smashed (I’m thinking of Trump’s immunity argument) that Trump actually won. This case never should have gotten to the Supreme Court, but it’s here. Trump should lose 9–0, but he won’t. The media shouldn’t praise the Roberts court for ruling against Trump on this ludicrous argument, but it will.

Still, Trump will lose. In Trump’s America, that has to be enough for me. I will take the “W” when it comes down, likely in June, and then move on to the next fight against the fascists.

In an 8–1 ruling on Tuesday, the Supreme Court overturned Colorado’s ban on conversion therapy. In so doing, it not only condemned countless children to a form of psychiatric abuse but also likely consigned the nation to a future of substandard medical care.

I’m not the only one who thinks this. In her solo dissent, Justice Ketanji Brown Jackson summarized the court’s opinion this way: “[T]o put it bluntly, the Court could be ushering in an era of unprofessional and unsafe medical care administered by effectively unsupervised healthcare providers.”

The case at the heart of the ruling is called Chiles v. Salazar, and it involves Colorado’s Minor Conversion Therapy Law (MCTL), which bans conversion therapy for young people. Conversion therapy is the practice of telling gay or transgender children that they’re not really gay or transgender and they can choose to be cis-hetero normative if they just really, really try. The “therapy” has been debunked as a medical practice: It is not only ineffective (turns out, you cannot “pray the gay away”) but it has also been consistently shown to be harmful to children. Colorado is one of more than 20 states that ban conversion therapy from being practiced on children. The ban applies only to state-licensed medical professionals, and leaves religious groups free to shame and abuse children as their gods allow.

Kaley Chiles is a licensed therapist. She is also an evangelical Christian who brought the challenge against Colorado’s MCTL because, notwithstanding the medical evidence, she still wants to practice conversion therapy. She claims that she doesn’t want to “change” or “convert” children but rather “help” them achieve “their own goals.” I cannot speak to Chiles’s intent, because she filed the lawsuit before Colorado even attempted to enforce the law against her. It would have been reasonable to wait for Chiles to practice something banned by the state before hearing this lawsuit. Then we’d be able to look at the facts of her practice rather than rely on mere conjecture about what she’d like to say but allegedly can’t. But the Republicans on the Supreme Court no longer wait for facts when there is a culture war to be won.

Chiles challenged the law on First Amendment grounds. She is a “talk therapist” and argued that the First Amendment protects her right to talk about whatever the hell she wants, including, apparently, debunked, unsound, unscientific, and harmful medical practices.

From a certain point of view, you can see Chiles’s point. The First Amendment protects “speech,” and telling children wrong and horrible things about themselves is, technically, speech. I do not know why people would want to use their speech to abuse children, but the First Amendment does and arguably should protect your right to tell little kids that they suck.

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But Chiles is not using her First Amendment rights to menace children as an ordinary citizen out in the wild. She’s not shouting “Hey, stop being gay!” at little kids unfortunate enough to hit a baseball into her yard. She’s doing it from her position as a medical professional with a license from the state of Colorado. That means that when she tells kids to stop being gay in a therapy session, she’s not merely expressing her personal views or those of her god; she’s speaking as an expert recognized by the state of Colorado.

Colorado, like other0000 states, has a right to regulate what licensed professionals can say to make sure that the treatments they’re providing represent the best and safest ideas the medical and scientific community has come up with. That is the point of requiring medical professionals to get a license in the first place.

Or rather, states had a right to regulate the speech of licensed professionals until the court’s ruling in Chiles v. Salazar. In his majority opinion, Justice Neil Gorsuch ruled that medical professionals have an absolute free speech right, just like everybody else, even when they are speaking as a medical professional. Gorsuch, the originalist-when-convenient, essentially ignored the centuries of history and tradition regarding medical licenses, and instead came up with a brand new formulation of the First Amendment that cannot be saddled by things as petty as “scientific facts” and “best practices” when it comes to medical care. Gorsuch basically erased the distinction between Dr. Sanjay Gupta and Dr. Dre.

That’s why the decision will have such a large impact—even beyond the torture Gorsuch thinks it is acceptable to subject LGBTQ+ children to. The new free speech right Gorsuch has invented will potentially destroy the entire concept of medical licensing. If medical professionals can say whatever they want, it becomes nearly impossible for states to hold medical “advice” to any kind of agreed-upon standard.

Gorsuch says that the First Amendment protects “unpopular” speech, which it certainly does. But, again, we’re not talking about some person spewing unsound and uninformed medical advice on Twitter. We’re talking about a health professional peddling a debunked medical treatment. If Gorsuch and RFK Jr. want to drink raw bear milk, that’s their business, but a licensed doctor should not be allowed to tell you that drinking nonpasteurized products makes your penis stronger.

What really seems to piss Gorsuch off is not just the fact that Colorado’s law bans conversion therapy but that it allows (and in some sense requires) affirmation therapy. Chiles cannot say “don’t be gay” but she can say “it’s OK to be gay.” This, Gorsuch says, is evidence that Colorado’s law is a form of viewpoint discrimination. It means that Colorado is forcing Chiles to accept its viewpoint (that being gay or trans is fine), which is an unconstitutional suppression of Chiles’s viewpoint (that being gay or trans can be changed).

Gorsuch is right, after a fashion. Colorado does have a viewpoint here, and it is counter to Chiles’s. But the key difference is, or should be, that Colorado’s viewpoint is backed up by medical and scientific evidence, while Chiles’s viewpoint is, essentially, quackery. Gorsuch would have you believe that the jury is still out on conversion therapy, but it’s not. The science is in. Gorsuch, Chiles, your priest, and the guy shouting at gay kids from his Ford F-150 are all equally wrong. The only distinction that matters is that Chiles wants to be an idiot-while-licensed—and that is a distinction that Gorsuch entirely misses or doesn’t care about.

The whole point of medical licensing boards is to distinguish acceptable medical viewpoints from conjecture and bunk—and that does, often, require regulating what doctors can and cannot say. You can’t, for instance, tell a child “go kill yourself” as a medical therapy, even if that is your monstrous viewpoint. You can’t tell a kid to start smoking cigarettes to fit in with the other kids at school. You can’t tell a kid who is falling asleep in class to buy some cocaine and have a bump in the bathroom during free period. You can’t do these things even if you are a talk therapist and all you do is talk about it instead of prescribing the smokes or the coke. You can’t give medical advice that is wrong, no matter how much you pray that it is right.

Apparently, the only person on the Supreme Court who understands this is Justice Jackson. She writes:

Stated simply, the majority has failed to appreciate the crucial context in which Chiles’s constitutional claims have arisen. Chiles is not speaking in the ether; she is providing therapy to minors as a licensed healthcare professional.… “[t]here is a long-established history of states regulating the healthcare professions.” And, until today, the First Amendment has not blocked their way. For good reason: Under our precedents, bedrock First Amendment principles have far less salience when the speakers are medical professionals and their treatment-related speech is being restricted incidentally to the State’s regulation of the provision of medical care.

Jackson correctly points out that the court’s decision doesn’t just invalidate the ban on conversion therapy; it opens the floodgates for all manner of junk science and medically unsafe therapies to be carried out under the guise of free speech.

Indeed, it is not at all clear how, or to what extent, state regulation of medical care involving practitioner speech can survive this holding. We are on a slippery slope now: For the first time, the Supreme Court has interpreted the First Amendment to bless a risk of therapeutic harm to children by limiting the State’s ability to regulate medical providers who treat patients with speech. What’s next? In the worst-case scenario, our medical system unravels as various licensed healthcare professionals—talk therapists, psychiatrists, and presumably anyone else who claims to utilize speech when administering treatments to patients—start broadly wielding their newfound constitutional right to provide substandard medical care.

It is baffling that we could now be standing on the edge of a precipitous drop in the quality of healthcare services in America. But the Court sees fit to bring us one step closer to that fate today.

What is baffling to me is that this new right to administer substandard medical care was approved by the court 8–1. Justices Elena Kagan and Sonia Sotomayor signed on to this ruling, with a short concurrence written by Kagan and joined by Sotomayor.

If I squint hard enough, I understand Kagan’s concurrence, because I am afraid of exactly the same thing she is afraid of: If the court gives its blessing to bans prohibiting therapists from trying to convert LGBTQ+ kids, what happens when a red state requires therapists to attempt conversion? If free speech doesn’t protect Chiles, can it protect a therapist who wants to affirm a child’s gender or sexuality? Kagan writes: “Consider a hypothetical law that is the mirror image of Colorado’s. Instead of barring talk therapy designed to change a minor’s sexual orientation or gender identity, this law bars therapy affirming those things. As Ms. Chiles readily acknowledges, the First Amendment would apply in the identical way.… Once again, because the State has suppressed one side of a debate, while aiding the other, the constitutional issue is straightforward.” What she’s saying is that if the First Amendment allows for conversion therapy, it must also allow for affirming therapy.

It’s a noble thought, and I understand her point, but Kagan is wrong in at least two ways. First, she’s making the exact same mistake that Gorsuch is: suggesting that conversion therapy is still a matter of medical “debate.” There is no debate: Conversion therapy is harmful. So say the medical professionals with the authority to draw that conclusion. We shouldn’t have to allow something that is harmful in order to protect something that is helpful. You don’t have to let people bring an emotional-support leopard on a plane because you let them fly with their house cats. Different things are different and can be treated differently.

The other mistake is more subtle, and more classically Kagan if you’ve paid attention to her rulings. She is, in my view, ceding this case (which I simply have to believe she knows is wrong) because she’s keeping her eye on the next one. She’s trying to lock her colleagues into an intellectually consistent position. If the Republicans agree that a medical professional can tell a patient it’s not OK to be trans, then the Republicans must also agree that a medical professional can tell a patient it’s OK to be trans. If a therapist can menace an LGBTQ+ child looking for help, then a different therapist is also constitutionally allowed to help that child, no matter what Texas or Florida or Idaho say in the future.

The problem with this reasoning is that Kagan’s colleagues have proven time and again that they are hypocrites and will reverse themselves on a dime whenever the Republican agenda requires them to. Already, with this very case, we have the same justices who told us that gun licensing laws are invalid unless they can be tied to the history and traditions of gun licensing laws from the 18th century telling us that the history and tradition of medical licensing laws do not matter when it comes to conversion therapy. There’s no intellectual consistency from the Republican justices. They do not care about intellectual consistency. They care about prosecuting their culture war and winning. That’s all they ever care about.

When states begin banning gender-affirming talk therapy, the Republican supermajority will flip their position. Kagan, no doubt, will write a stirring opinion, calling out her colleagues for their hypocrisy. But it will be a dissent. And Gorsuch will dismiss Kagan’s pleadings and laugh at the suffering of others as he always does. Kagan will retain her intellectual honor, but it will not get her to five votes.

Kagan’s Republican colleagues will let her down, again. In the meantime, as Jackson noted, the entire medical profession will enter an era of grave uncertainty and heightened stupidity.

Thanks to this ruling, a medical license means… nothing going forward. Getting the advice of a doctor is now the same as asking the Internet or tuning in to “Dr. Phil.” According to the Supreme Court, doctors have just as much of a First Amendment right to offer untested and untrue medical theories as politicians, Uber drivers, or your grandma from the Old Country.

This ruling will damage the quality of healthcare for all Americans. And it was made because a quack therapist in Colorado really wants to spew abusive claptrap at LGBTQ+ kids forced to sit on her gross couch by their parents. It’s stunning, really, whenever you step back and contemplate how much harm this country is willing to endure in order to protect bigotry.

LaGuardia stopped functioning this week. On Sunday night, an Air Canada plane crashed into a fire truck, killing the two pilots and injuring more than 40 passengers. One runway was shut down for days. The mayhem exacerbated the hours-long security lines that had been growing ever since the partial government shutdown axed TSA agents’ pay. The Trump administration responded by sending ICE agents to the airport to… stand around and do nothing. The result was even longer delays for passengers at one of the world’s busiest airports. In the future, historians will look back at our system of air travel the way we look back at medical treatments from the Middle Ages. “People stood in line for hours for this? What did they do if someone got sick—administer leeches?”

It’s kind of amazing that the planes could afford to fly at all, given the price of gas. Consumers are facing high prices at the pump as Trump’s illegal war in Iran rages on.

In a normal country, the president would be held accountable for fixing the things he’s broken. At least by the media. I try to avoid “imagine if Barack Obama did…” comparisons but imagine if Barack Obama launched a war of choice that led to massive spikes in the price of oil while the airports ground to a halt because the TSA wasn’t funded because he was trying to foist unconstitutional thugs on the country.

Of course, the reasons those comparisons are useless is because Obama was a Black man and Trump is a white supremacist, and being an open white supremacist apparently grants you a kind of pass for your drooling incompetence. Indeed, the only thing Trump can deliver on consistently is racism.

Amid all this failure, Trump made the time this week to take another bigoted swipe at Somali-Americans. He said, “In Minnesota, it’s very Somalia-oriented. These people come from a crooked country, disgusting country, one of the worst countries in the world. They come to our country—low IQs—and they rob us blind. Stupid people, and they rob us blind.”

Donald Trump’s disgusting racism is the cover for his gross incompetence. The racism is what he uses to convince his supporters to ignore his pathetic job performance.

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And it works. Trump is objectively bad at running the government, but he’s objectively good at running a Klan rally, and his supporters value the latter so much that they forgive the former. That’s why racism is the only thing that is actually still working in our country.

The Bad and the Ugly

• The Trump administration is launching an investigation into the admissions practices of three top medical schools: Stanford, Ohio State, and UC-San Diego. If there is any place we need more affirmative action, it’s in the medical profession. It is incredibly difficult to find a Black doctor, and incredibly difficult for a Black person to get quality care from a white doctor. I’ve had precisely one white doctor in my entire life who made me feel like I was getting the same care as his white patients. Anyway, like I said, racism is the only thing that is working in this country.
• The International Olympic Committee officially banned transgender athletes from competing in women’s sports. The rule will take effect at the 2028 Olympics, which are still slated to be held in Los Angeles. To recap: trans people in sports = bad; major sporting events in fascist countries that violate international law = OK.
• A coalition of 21 states have sued the Trump administration over its new USDA regulations, which could deny funding for SNAP, WIC, school lunch, and other essential programs. The administration has threatened to punish states that promote “DEI” and “gender ideology” or “provide incentives for illegal immigration.” Aside from not really knowing what those terms mean in the context of SNAP benefits, I must also point out that not giving people food because you don’t like a state that celebrates tolerance is just fucking evil. Collectively punishing poor people because a state refuses to subject people to a genital exam before they use the bathroom is beyond wrong.
• New Jersey passed a law banning ICE agents from wearing masks. Umm… that’s good. Holy crap, something good happened this week!
• In a unanimous opinion, the Supreme Court ruled that Internet service providers cannot be held liable for copyright infringement done by its users. The case (which involved music rights holders like Sony suing ISPs) already feels obsolete. I’m no longer worried about kids using Napster to steal a couple of songs; I’m worried about AI stealing every song and then spitting it back out in some kind of unholy cacophony of sound. And this ruling doesn’t help us deal with that problem.

Inspired Takes

• I saw somewhere that tech bro Marc Andreesen proclaimed that he does “zero introspection,” and I thought, “What an incredible thing to admit to the entire world that you are both an idiot and a sociopath.” I didn’t think much beyond that until I read David Futrelle’s deep dive in The Nation on the latest case of tech vulture nihilism.
• This investigation by Oren Ziv and Ariel Caine—published by The Nation in partnership with +972 magazine and Local Call—connects the violent dots between a series of settler attacks on Palestinian villages and a coordinated settler effort to push even deeper into the West Bank and seize more Palestinian land. All with army support.
• The Trump administration’s arguments in the birthright citizenship case—which will be heard by the Supreme Court next week—are based, in part, on the theories of the white supremacist who argued on behalf of the segregationists in Plessy v. Ferguson. Ian Millhiser explains.

Worst Argument of the Week

On Monday, the Supreme Court issued a short ruling in a case about police brutality. Predictably, the Republican supermajority sided with the brutal police.

The case, Zorn v. Linton, arose after a peaceful protest at the Vermont statehouse in 2015. Cops went to clear out the protesters, and Shelia Linton claims that, while most of the protesters were ushered out peacefully, she was put in a rear-wristlock (a “pain compliance technique”) by officer Jacob Zorn.

This is where I point out that Linton happens to be Black. Zorn allegedly told Linton she should have “called her legislator” instead of showing up at the protest.

As many know, police officers generally receive qualified immunity for actions taken while on the job. The protection means that cops can generally not be held liable when they violate the law. But there are some exceptions to qualified immunity. One exception is when police officers commit crimes. Another exception is when officers knowingly violate citizens’ constitutional rights.

In this case, the Second Circuit Court of Appeals rejected Zorn’s qualified immunity claim. It said that Zorn should have known that applying a pain compliance technique to a peaceful and nonviolent protester was a violation of Linton’s constitutional rights.

The Supreme Court disagreed. In an unsigned opinion, the court’s Republicans said that officers have no reasonable way of knowing when inflicting pain is a violation of constitutional rights.

Justice Sonia Sotomayor dissented. She accused the Roberts court of turning qualified immunity into an “absolute shield” for law enforcement.

It doesn’t have to be this way. Qualified immunity is something made up by Supreme Court justices. There is no constitutional language granting law enforcement immunity from the Constitution. States could remove qualified immunity from police officers tomorrow simply by passing legislation.

Police unions would complain, of course. The police have become accustomed to violating the law with impunity. That doesn’t mean we should let them.

What I Wrote

The Supreme Court heard oral argument this week in the mail-in ballots case—the one the Republicans have been pushing to try to block mail-in ballots received after Election Day from being counted. I explained what happened, including the fact that the Republican’s antidemocratic argument doesn’t stop with ballots received after Election Day. Taken to its logical conclusion, it can be used to attack early voting and ballots mailed in before Election Day. It’s… pretty much all bad, friends. 

In News Unrelated to the Current Chaos

Baseball is back! Thursday was Opening Day, and our long winter is at an end. Baseball is my favorite sport. I know that’s weird, because I’m Black and am under the age of 95, but what can I say? I can watch a baseball game while reading a book, and if I happen to doze off, it’s still OK. It’s not a sport; it’s a lifestyle.

And this might be the last season I get it for a while. The lords of baseball—i.e., the owners of the various teams—appear ready to blow up the sport to make themselves a little wealthier.

Baseball is the only major American team sport that operates without a salary cap. There are some “luxury tax” rules and other thresholds meant to punish teams that spend a lot of money, but, fundamentally, owners can spend as much cash on their baseball teams as they want.

You’d think that the kinds of smash-and-grab businessmen who are able to amass the kind of wealth necessary to own a baseball franchise would be fans of, you know, unfettered competition, but they’re not. Instead, most of the owners want a salary cap. And why wouldn’t they? Imposing a salary cap gives the owners fixed, and artificially depressed, labor costs. Most capitalists are more than happy to abandon capitalism if market regulations help them reduce labor costs.

The owners want a salary cap, and to get one, they’re probably going to lock out the players next year—until the powerful baseball player’s union agrees to give the owners a way to artificially depress the wages of baseball players.

As Matt Kreisher explains in The Nation, what’s particularly infuriating about the owner’s position is that many baseball fans will end up taking the side of the greedy owners. For most people, the athletes getting paid multiple millions of dollars to play a game—a child’s game that involves hitting a ball or throwing one—already seem grossly overcompensated. Baseball players make vastly more than teachers or scientists or any number of people whose contributions are more critical to the functioning of society.

But athletes are labor. And what the owners want is to artificially cap the cost of labor, even though baseball owners already enjoy a literal monopoly—aided by a straight-up antitrust exemption—for the sport. Moreover, baseball players must accrue six full years of major-league service time before they’re even allowed to become free agents with the power to sign with the team that offers them the most money. Owners have a monopoly on the sport, a monopoly on the early careers of all its players, and when the players are finally able to participate in what counts as the free market for their labor, the owners want to introduce another artificial ceiling on how much they can make.

Yet fans of teams, especially fans in “small market” cities, support this ownership control and greed. They feel like their teams can’t compete with the big spenders in New York and (especially) Los Angeles without a salary cap.

It’s a terrible argument. The owners in Milwaukee or Cleveland or Pittsburg are not poor. They’re not even broke. They have money to spend on players and compete with the Los Angeles Dodgers or New York Yankees. And if they don’t have the liquid cash available, they can always sell their teams for billions of dollars to somebody who does have enough cash to buy a right fielder.

The problem is that owners of some of the baseball teams don’t want to spend money. They want to use their baseball teams as prestige toys, instead of putting the most competitive team they can on the field to try to win the World Series. The owners want socialism for themselves but rapacious capitalism for everybody else.

They seem to be willing to sacrifice the 2027 season to get it. Players are already being told to save money in preparation for a long lockout.

Baseball fans are fond of saying “maybe next year.” But this year, next year might never come.

***

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The Supreme Court heard oral arguments on Monday in a case that exists only because Donald Trump lost the 2020 election, threw a temper tantrum, attempted a coup d’état, failed at that, and has spent the last six years claiming he won the election he clearly lost. The case is called Watson v. Republican National Committee, and it involves a Mississippi law that allows mail-in ballots postmarked by Election Day to be counted as long as they are received by the state board of elections within five days of the election.

Mississippi adopted this law during the Covid-19 pandemic, but over 30 states have similar laws. Legally speaking, this is a standard application of “states’ rights.” Congress set the date for federal elections in the Presidential Election Day Act of 1845 (“the Tuesday next after the 1st Monday in November, in every even numbered year”) but it’s left to the states to determine how to administer those elections. Obviously, mail-in ballots weren’t really a thing in 1845—indeed, paper ballots weren’t really a thing (which I explain in my best-selling book Bad Law: Ten Popular Laws Ruining America, which you can find here, if you haven’t honored me by picking it up yet). But as voting has evolved, most states reasonably concluded that people who mail ballots by the federally mandated Election Day should have those ballots counted when they arrive.

Counting mail-in ballots was an uncontroversial practice until Donald Trump lost an election. Trump declared, without a scintilla of evidence, that mail-in ballots were “rigged,” and the Republicans have lined up like lemmings to follow Trump off the antidemocratic cliff. Mail-in ballots received after Election Day do not change the outcomes of elections. But they can change the initial reports called out by newscasters standing in front of giant touch screens on election night.

Those early reports are called the “red mirage.” For reasons that we still don’t fully understand, Republicans tend to perform better with voters who cast their ballots on Election Day, while Democrats tend to perform better with voters who cast their ballots early or by mail. Because states tend to count the ballots cast on Election Day before they count ballots cast through other means, the television people often report Republican leads that slowly get whittled away as more votes are counted. There’s nothing “fishy” or “rigged” about that. But if you have a problem with it, you should really send your complaints to Steve Kornacki and John King, not the state boards of elections that are just counting votes.

Again, none of this was a problem until Trump lost. Trump’s inability to understand or accept how counting works—and the GOP’s slavish desire to do Trump’s bidding—is what has spurred this case all the way up to the Supreme Court.

The case began with a challenge of Mississippi’s mail-in ballot counting by the Republican Party. The Republicans lost in district court, but then a panel of judges who are all vying to be Trump’s next Supreme Court nominee—James Ho, Stuart Kyle Duncan, and Andy Oldham, all of the US Court of Appeals for the Fifth Circuit—overturned the district court and ruled that the Mississippi law violated the 1845 Election Day Act.

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The crux of the Fifth Circuit argument, and the argument made by GOP and Trump administration lawyers at the Supreme Court, was this: When Congress set the nation’s Election Day in 1845, it meant to set the day for when votes had to be cast and received; moreover, the only people capable of “receiving” ballots are those “cloaked in government authority,” and the officials wearing this magic cloak of timely democracy somehow do not work at the post office—which is probably a surprise to everybody who mails their taxes on April 15 and doesn’t know when their taxes are actually received by the IRS.

As my friend Mark Joseph Stern said of the Republican position: “It’s the kind of argument that makes sense if you think about it for five seconds, but falls apart if you think about it for five minutes.”

The act of casting and receiving votes was instantaneous in the Athenian era when “voting” meant shouting Yea or Nay until Zeus rumbled with pleasure or whatever. Once you add any form of “mail” into the equation, or the “collection” of votes from, say, a voting machine or a ballot drop box, voting becomes a two-step process—the casting of the vote and the receiving. Things like mail and voting machines have been with us for a very long time now, and at no point has Congress decided to update its 1845 Act to specify when votes must be received, only the date by which those votes must be cast. It has been left to the states to determine when the votes cast in accordance with the congressional deadline must be received. To accept the Republican argument is to believe that the states have been doing elections wrong for over 150 years, and Donald Trump was the first person to figure that out.

Predictably, during oral arguments, the wild GOP assertion that the last century-and-a-half of election law should be thrown out because it displeases Donald Trump found purchase among at least four Supreme Court justices: Clarence Thomas, Sam Alito, Neil Gorsuch, and alleged attempted rapist Brett Kavanaugh. Alito’s argument was particularly risible, as he claimed that Mississippi’s law needs to be changed (by Supreme Court fiat) because “losing candidates…would not accept” the results of an election where votes received after Election Day changed the outcome.

I take issue with Alito’s framing, because it’s very clear that only one “losing candidate” was such a sore loser as to not accept the clear results of the election, and that loser was Trump. And the results Trump wouldn’t accept did not “change” because of ballots received after Election Day. Again, ballots received after Election Day have not changed the outcome of any presidential election in any state; they have only changed the incorrect reporting of the results of the election done by people who started mouthing off on television before all the votes were counted. Alito should be concerned with the law and the Constitution, not with placating a man-baby and making CNN’s job easier.

Kavanaugh also cared more about the appearance of who won the election than about the actual winner of the election. But everybody should remember that Kavanaugh rose to professional power through his dogged defense of George W. Bush in Bush v. Gore—which was another case in which Republicans preferred stopping the counting of votes while a Republican was ahead.

But the achievement for weirdest and most fanciful argument goes to Gorsuch. That guy equated putting your ballot in the mailbox with handing it to your friend “Bob” (this was after an extended discussion of how voting worked during the Civil War, which I will not bore you with because both sides of the argument could twist that history to support their position, and because pretending that our modern election laws hinge on how the Union army was allowed to vote is beyond dumb). He then went on a wild non sequitur about how if you mail your ballot via FedEx, you could “recall” your ballot and instruct the mail carrier to not deliver it, thus placing the election in turmoil. Has this ever happened? Is it conceivable that it would happen in great enough numbers to tilt or even muddle the outcome of an election? No, of course not, but things as petty as the nature of our shared reality do not matter to people like Gorsuch, at least not when he’s trying to overturn settled constitutional law.

Still, those three plus Thomas (who said nothing of import, as is his wont) only gets the anti-democracy forces to four votes. Chief Justice John Roberts didn’t really give away his opinion, but he piped up to question the Republicans on how their theory of Election Day might apply to early voting and didn’t sound too happy with the Republicans’ answers.

If you take the Republican arguments about Election Day to its logical conclusion, their theory of the case also kills the ability of states to have an early voting period. If the 1845 Election Day Act sets the date certain by which votes must be received, there’s every reason to say that it also sets the date certain for when votes must be cast. Obviously, in 1845, there was no “early” voting. Since then, states have been given the power to decide for themselves when Election Day starts. If the Republicans’ theory holds, ballots cast before Election Day are just as invalid as ballots received after Election Day.

The other problem with the Republican argument was voiced by Amy Coney Barrett, who more or less pointed out that there are three acts that make up a valid vote: casting, receiving, and “adjudicating” whether a ballot is legitimate. In a world in which Republicans regularly kick people off voter rolls and challenge their voter registration credentials, we have a lot of people casting “provisional” ballots, and the legality of those ballots is determined after Election Day. Under the Republican theory, these ballots may also be disregarded.

Republican lawyers responded to these questions by doing something that I’ve really only seen the Trump administration do: They told the Supreme Court that they were not challenging early voting or provisional ballots “yet.” Republican super lawyer Paul Clement (who argued the case on behalf of the Republican National Committee) joked that “maybe I have a different challenge to bring in the future” and said that he didn’t want to close himself off from the possibility of challenging early votes, but that it was not the issue in this case. Solicitor General John Sauer echoed Clement, saying the Trump administration’s current position is not to object to early voting. It’s a thing Trump’s lawyers, and only Trump’s lawyers, seem to get away with: essentially telling the justices not to worry their pretty little heads about what the administration is going to do next. It’s like going to the court and asking for an ax to chop down a tree, and when the justices say, “You’re just going to use this ax for chopping trees, and not humans, right?” you respond, “Wouldn’t you like to know?” And then laugh about it.

Roberts and Barrett seemed unsatisfied with the Republican lawyers’ responses to their concerns, and for that reason one might feel confident that the Republicans will lose their case, and Mississippi (and all the other states) will be allowed to count ballots received after Election Day.

But I do not feel confident. Yes, Roberts and Barrett had objections, but Roberts and Barrett have taken a hatchet to voting rights before. As I’ve written recently, Roberts loves to treat the Trump administration with the presumption of normalcy, and so the government’s assurance that it’s not coming for early voting just yet might be enough for him.

The Republicans shouldn’t win this case. They shouldn’t have won it in front of the Fifth Circuit. We shouldn’t be here at all. The only reason their argument hasn’t already been thrown out of court is that Donald Trump lost an election and can’t handle that loss like an adult.

But “Donald Trump is whining on social media and might launch another coup” is often enough of a reason for the Supreme Court to upend settled law. They might do it again. My ears tell me this is a 5–4 loss for the Trump administration’s antidemocratic position, but my gut tells me it’s a 6–3 win for the hysterical man throwing a six-year temper tantrum.

Let’s hope John Roberts’s powers of rational thought triumph over his fear and cowardice.

Late Sunday night, Donald Trump took to social media to go on an epic rant against the Supreme Court. Apparently, he’s still angry over the tariff decision. “The decision that mattered most to me was TARIFFS! The Court knew where I stood, how badly I wanted this Victory for our Country, and instead decided to, potentially, give away Trillions of Dollars to Countries and Companies who have been taking advantage of the United States for decades.”

After taking a detour to praise the dissenting justices, and once again acting like their dissent gave him the authority to do what the majority said he could not do, he got to his point (to the extent Trump ever has a point beyond “I’m a big strong man but everybody is mean to me”). He wrote:

The Democrats on the Court always “stick together,” no matter how strong a case is put before them — There is rarely even a minor “waver.” But Republicans do not do this. They openly disrespect the Presidents who nominate them to the highest position in the Land, a Justice of the United States Supreme Court, and go out of their way, with bad and wrongful rulings and intentions, to prove how “honest,” “independent,” and “legitimate” they are.

This narrative, that Democratic justices vote as a block but Republican justices don’t, is one that makes Republicans very happy. Trump doesn’t get it. He doesn’t get that he’s accidentally praising the Republican justices, because in his mind loyalty to the king is all that matters and an independent judiciary frustrates that project. But for other Republicans, including the ones running mainstream media these days, this narrative is their catnip. They want you to think that Republicans are independent arbiters, while Democrats are just Democrats.

Chief Justice John Roberts, speaking on Tuesday, didn’t directly mention Trump’s comments, but he certainly responded to them. Roberts warned that personal attacks on judges are dangerous, but then reaffirmed Trump’s claim, in a way, by saying that judges are not bound by any president’s agenda and do not “carry forward the views of the people that appointed us.”

The thing is, both Trump and Roberts are wrong. I’ve explained this before, but the key thing to understand is that since Republicans hold a supermajority on the Supreme Court, the only thing the court is ever fighting about is the Republican interpretation of the law. The only thing ever in play is how best to achieve the Republican political agenda. Democrats on the court do not even have the votes to get a case heard by the Supreme Court without Republican support. It takes four votes for the Supreme Court to “grant certiorari” and agree to hear a case. That means that literally every case argued in front of the court since Ruth Bader Ginsburg died has gotten there because Republicans wanted it there. Every question presented has been a question the Republicans wanted to answer, and every argument has been made with the intention of getting at least a couple of Republicans to go along.

Of course, in that kind of unbalanced situation, it’s likely that the Democrats on the court will end up on the same side in most cases. There is a huge difference between the legal postures of, say, Justice Elena Kagan and Justice Ketanji Brown Jackson—but when the question is always “Is Donald Trump a kaiju empowered by star gods sent to stomp the administrative state and murder fishermen?,” nobody is going to get to observe those differences. 

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Meanwhile, on the other side of the aisle, every Trump-related case is going to revolve around the hair’s breadth of difference between Roberts’s theory of executive power for (Republican) presidents and Samuel Alito’s theory of executive power for (Republican) presidents.

Essentially, you have Republicans arguing among themselves over whether they should use a Bushmaster or a Remington to go hunting, while Democrats are saying, “OMG, don’t shoot Bambi’s mom!”

If the Supreme Court ever gets back to applying the law instead of shoving the Republican agenda down our throats, you’ll see a lot more legal disagreements among the Democrats.

The Bad and the Ugly

• Attorneys general from 16 states filed a lawsuit against the Department of Housing and Urban Development. They claim that the agency’s new anti-DEI guidance violates the Fair Housing Act. The Fair Housing Act is part of the trifecta of successes achieved by the Civil Rights movement under President Lyndon B. Johnson. Along with the Civil Rights Act and the Voting Rights Act, it is one of the laws that finally made good the promise of the Reconstruction Amendments. And as with those other two laws, the racists running the country hate it and are doing everything they can to get rid of it.
• New York’s Mass Transit Authority sued the federal government over the $60 million the Trump administration is withholding from it. That money, which has already been approved, is needed to complete the extension of the Second Avenue subway into East Harlem. Hmm… I wonder why the Trump administration doesn’t want to provide better subway service to Black and Latino people living in East Harlem? Actually, strike that, I do not wonder.
• A federal judge blocked the Trump administration’s attempt to cut Colorado’s SNAP funding. Trump was trying to use the cuts to bully Colorado into granting a pardon to election denier and fraudster Tina Peters.
• A federal judge is likely to block Trump’s White House ballroom. Unfortunately, this is a great example of a case where the damage will have already been done by the dictator long before the law can catch up.
• The Ninth Circuit threw out a case alleging that the state of Arizona violated the National Voter Registration Act. The case was brought by a pair of Republicans who argued that the state didn’t purge enough ineligible voters from the rolls in 2024, diluting the Republican vote. Meanwhile, next week will be a big week for voting rights: The Supreme Court is set to hear a case on whether ballots should be thrown away if they’re not received by Election Day, and the Senate will continue to debate Trump’s favorite voter-suppression act.

Inspired Takes

• Here’s a piece in The Nation from Amber Husain that is trying to explain which foods and diets are MAGA-coded now. I’m fundamentally suspicious of all people, right or left, who have wild dietary requirements that aren’t tied to hard allergies. Eat what you want, of course, but if we go out to dinner and you start talking to me about how your order has been ordained by RFK Jr. or some tech bro who is trying to live to 175, I’m going to judge you. Luckily for you, I’ll be dead soon.
• This is a really beautiful story from Dave Zirin in The Nation about New York Mayor Zohran Mamdani and New York Knick Mo Diawara breaking their Ramadan fast together. Yes, yes, I know I just wrote a very judgy paragraph about people and their food choices, but I’d like to think there is a huge difference between respecting and appreciating the breadth and beauty of different cultures as expressed through food—and being nice to vegans.
• On Balls and Strikes, my brother-from-a-different-mother Jay Willis goes much deeper into the myopic narcissism of Trump’s Supreme Court complaints.

Worst Argument of the Week

Sarah Palin made two lasting contributions to the Republican lexicon: “I can see Russia from my house” and “Drill baby drill.” The latter has somehow become the official policy of both the GOP and Donald Trump (though he can’t always remember the three-word catchphrase and so instead sometimes says “dig, we must.”)

Trump’s crude desires have led him to kidnap the President of Venezuela and start a war in Iran, so it might be easy to overlook the most unsurprising victim of this country’s rapacious addiction to oil: the environment. 

Trump’s attempts to open up drilling in every ecologically vulnerable environment on Earth has led to an unusual event. On March 31, his Department of the Interior will hold a special meeting to consider granting an “exception” to the Endangered Species Act to allow for more efficient drilling in protected areas of the Gulf of Mexico. The last time such a meeting took place was in 1991, during the days of George H.W. Bush.

To be clear, granting an exception to the Endangered Species Act means that we are potentially going to condemn entire species to extinction because they happen to live near something we want. In this case, the species at most immediate risk is the Rice’s whale. This is the rarest whale (that we haven’t yet killed off). The population was devastated by the Deepwater Horizon oil drill disaster in 2010, and there are thought to be only 51 individuals left. They all live in the Gulf, where Trump wants to drill.

What’s amazing here is that the main reason the administration is seeking an exception to the Endangered Species Act isn’t directly about drilling. It’s about how fast the boats can drive while speeding toward the oil. We are literally talking about the extinction of an entire species so the oil industry can move a little bit faster.

The Center for Biological Diversity filed a lawsuit trying to prevent what they’ve called the “extinction committee” from meeting. The center’s executive director, Kierán Suckling, issued a statement condemning the committee as “immoral, illegal and unnecessary” and blasting the entire effort: “There’s no emergency, no legal basis to convene the committee, and no legal way to approve the extinction of Rice’s whales. This sham is nothing more than [Secretary of the Interior] Burgum posturing for Trump and saving the fossil fuel industry a few dollars by allowing its boats to drive faster and more recklessly.”

I don’t know if there’s anything the Center for Biological Diversity, or anybody else, can do to stop this. When evil people run the government, evil things happen. But killing an entire species of whale to allow oil tankers to drive faster is truly one of the worst and most despicable arguments I’ve heard this year.

What I Wrote

Nothing digital from me this week. All print. But, speaking of print, a piece I wrote about the problem of the Supreme Court treating Trump as a “normal” president is now available on Al Gore’s Internet.

In News Unrelated to the Current Chaos

Democrats unveiled legislation aimed at preventing gambling sites that have branded themselves as “prediction markets” from taking wagers on government actions. They say it’s necessary to prevent insider trading.

This legislation makes sense to me. If websites like Polymarket and Kalshi can take bets on what the government is going to do next, then it’s very easy for powerful people within or adjacent to that government to make thousands of dollars betting on actions they know are coming. I mean, what’s to stop Pete Hegseth from betting on whether the US will start a war with Iran? Or to stop Stephen Miller from betting on how long Trump’s State of the Union will be?

I would, of course, go farther than the Democrats. It’s all well and good to prevent these websites from taking certain bets, but even if the legislation passes, those sites will do everything they can to get around the law and allow people to bet on the outcomes of government actions, if not the likelihood of those actions. Plus, there will be international sites that are not subject to US law that will pick up the slack.

So I would double down on this bill and prevent anybody working for the government, or anybody whose immediate family works for the government, from placing bets on these markets.

And while we’re at it, I would also prevent elected officials and their immediate staff from trading stocks because, while we pretend that’s very different from “gambling,” it’s not. And government officials should not be allowed to do it.

I know this is going to sound wild, but my position is that people who have been given the public trust should not be allowed to gamble. Gambling has always been the “gateway drug” to all sorts of corruption, and it would be better for the entire polity if public officials were not allowed to do it.

No gambling by the government. Thank you for coming to my Ted talk.

***

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“The greatest trick the devil ever pulled was convincing the world he didn’t exist.” Apparently, this famous quote was written by the 19th-century French poet Charles Baudelaire, but I first heard the line in the movie The Usual Suspects. I think about it often, as it encapsulates Donald Trump’s relationship with the Republicans on the Supreme Court.

The Donald Trump who exists in the real world—the racist, fascist sexual predator who happily tweets out the illegal and unconstitutional motivations for his policies—does not exist according to the Supreme Court. Instead, the court has invented a different Trump, one who does not speak, does not lie, and adheres to the well-established norms regarding the use of executive power. It has dreamed up a normal US president, grafted this creation onto Trump’s legal filings, and then ruled as if this fiction were reality.

There is a legal doctrine that explains what I believe the Supreme Court is doing: the “presumption of regularity,” which dates at least as far back as 1926. This doctrine instructs courts to assume that members of the executive branch have acted properly and in good faith. An administration is presumed to have bona fide reasons for its actions, and those actions are assumed not to be “pretextual,” meaning that courts are not supposed to act like the administration has invented a plausibly legal reason to justify its plainly illegal actions. The presumption of regularity is afforded to members of the executive branch and no one else. Only they can waltz into court and expect people to take them at their word.

We hear the Supreme Court invoke the presumption of regularity all the time, especially during oral arguments, when the justices talk about giving “deference” to the administration. This administration deserves no deference, because it lies all the time. But the presumption of regularity instructs the court to defer to the administration and assume it is telling the truth.

The result is that the court presumes Trump had a good reason for shutting down DEI programs, even when there is clear evidence of the flagrant racism behind such actions. It presumes the administration tried its best to follow the rules before taking a chainsaw to the administrative state—even though it was a private billionaire who did the cutting, in violation of all the rules. And it presumes there’s a real national emergency simply because the president said so—never mind that the only national emergency is the armed goons invading our cities.

In embracing this doctrine, the Supreme Court is asking us to do something patently insane—and one of the many ways we know this is that many other courts are refusing to fall for the trick. A study released by the digital law journal Just Security last November found more than 60 cases in which lower courts called out the Trump administration for basing its arguments on misinformation, and it cited numerous instances of lower-court judges castigating the Trump administration for “bad faith” conduct, “manifestly unreasonable” or “contrived” legal arguments, and supplying the court with “mischaracterized,” “misleading,” or “intentionally false” evidence and information.

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Lower courts have, in essence, rejected the presumption of regularity. They are no longer treating this administration as normal. But the problem is that they are consistently overruled by the Supreme Court.

This, however, may be changing. The Supreme Court has played Trump’s game for a decade, but two recent cases suggest that even Trump’s handpicked justices might be getting sick of his treating them like idiots.

In December, in an unsigned “shadow docket” opinion, the Supreme Court rejected Trump’s attempt to deploy the National Guard to Chicago. Trump argued that he should be allowed to deploy the Guard because the regular police forces in Chicago couldn’t uphold the law. The majority didn’t buy his argument—which predictably pissed off the justices who think Trump should be treated as a god-king. In dissent, Justice Samuel Alito (joined by Clarence Thomas) wrote: “[T]he President said unequivocally that he had ‘determined that the regular forces of the United States are not sufficient to ensure the laws of the United States are faithfully executed…in Chicago.’… Not only is this statement sufficient on its face, but under the presumption of regularity, the Court must presume that the President properly arrived at his determination.” (Emphasis mine.)

Not long after, the court heard a case challenging the firing of Lisa Cook, a member of the Federal Reserve Board of Governors. During oral arguments, alleged attempted rapist Brett Kavanaugh, of all people, pointed out that Trump’s stated reason for firing Cook (that she lied on a mortgage application) was pretextual. He suggested that the administration had made up a reason for firing her since it couldn’t admit it was doing so because of policy disagreements. (Fed commissioners can only be fired “for cause.”) Kavanaugh described the administration’s process as tantamount to “let’s find something, anything, about this person, and then we’re good.”

As of this writing, the court has yet to rule on Cook’s firing, so Trump could still win this one. But whatever happens, the question of whether the court continues to treat Trump as normal will be the defining issue of all the legal fights involving the administration—from tariffs and birthright citizenship this term to whatever else Trump tries to pull, including rigging the midterm elections. How the court chooses to answer this question will determine whether it will try to sane-wash Trump and allow him to rule over the republic like a dictator—or try to stop him. Ignoring what Trump says is the first step toward justifying what Trump does. His regime cannot hold if people just listen to what he actually says. 

This isn’t just true of the Supreme Court. I’d argue that the signature failure of the mainstream media in the Trump era is its insistence on treating Trump like a normal president. The same goes for their treatment of the entire MAGA movement. Their insistence on treating the MAGA cultists as regular people who just happen to strongly believe in white supremacy, the subjugation of women, and the elimination of the LGBTQ community is part of the same failure. It’s how we get endless interviews with Trump supporters in diners, and how Ezra Klein ends up telling us that Charlie Kirk “was practicing politics the right way.”

None of this is normal. It’s not normal to have masked federal agents murdering people in the streets—it’s not even normal for federal agents to wear masks. It’s not normal to abduct foreign leaders. It’s not normal to create concentration camps out of Big Lots warehouses and hold people there without hearing or trial. None of this is regular, and none of it is okay. 

If the Supreme Court would just start treating Trump as the real person he is instead of the fake person it wishes he were, it might also encourage other institutions that Trump has cowed to do the same. We are in a full “the emperor has no clothes” situation. The most impartial thing the Supreme Court could do at this moment is simply to acknowledge it. That’s what is happening, in fact, in many other courtrooms across the country.

If I were on the Supreme Court, I’d start every hearing by saying: “Your client is naked, Mr. Solicitor General. Let’s talk about that before we get to why he wants to light the Constitution on fire.”

The Judicial Conference of the United States held one of its semiannual meetings this week. The conference, which is overseen by Chief Justice John Roberts, consists of a 26-member panel of judges who make suggestions on judicial policy. Often, lawmakers and experts are invited to speak to the judges about the pressing issues of the day. Most of the time, the gathering is entirely pointless: It’s a closed door meeting that isn’t even newsworthy enough for reporters to try to get a scoop on what was said inside.

This week’s meeting was a bit different. Representative Jamie Raskin, ranking member of the House Judiciary Committee, lit into the justices, specifically Roberts. And we know this because Raskin made his remarks public. The meeting was focused on the increased threats to the safety of judges, something that, not surprisingly, judges always want to talk about. Raskin acknowledged the threats, and pledged to do everything he could to ensure the safety of the judiciary. But then he broadened his focus to address why judges are seeing more threats of violence. He said:

Those threatening judges, with menacing voicemails, physical violence, doxxing, or by calling for them to be impeached for ruling a particular way, all share an illegitimate ambition: they seek to change the outcome of cases through fear and coercion.

But the rising tide of threats against federal judges reflects a basic and spreading misunderstanding of what judges and Justices do. You are not legislators who are expressing your policy preferences or the policy preferences of your constituents. Nor are you Executive branch officials who are implementing a public policy decision.… We must combat the misconception that judges are political actors as opposed to elucidators of the meaning of the law. This means the Judiciary itself must make sure that the rule of law operates in a way which makes it clear to everyone what law is.

That is a very nice and respectable way of saying that the Supreme Court has gotten out of its lane. Raskin was calling out the justices for acting like legislators or executives and imposing their policy preferences on the rest of us. That is what’s leading to the “misconception that judges are political actors.”

Raskin went on to call out the court’s use of the shadow docket:

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The shadow docket’s flight from reason is an affront to the historic role of the judiciary because its fleeting, conclusory statements are typically the final word on the case. Preliminary injunctions, stays and their grant or denial effectively resolve the matter, since by the time a final judgment issues in the lower courts, the controversy will have been resolved in practice by the unexplained and inscrutable shadow docket decision.

Look, no reasonable person wants judges to get death threats. But Raskin just told Roberts that the way to stop this from happening is not by simply gifting the court with enough congressional funding for the justices to have their own private security forces. The way to truly decrease the pressure on the Supreme Court is for the justices to act like they’re members of a court of law, instead of the rulers of America.

I don’t imagine John Roberts will listen or care. But at least someone told him to his face.

The Bad and the Ugly

• In other news about the Supreme Court’s shadow docket, alleged attempted rapist Brett Kavanaugh and Justice Ketanji Brown Jackson got into it during a rare joint appearance at a Washington, DC, lawyers’ event. Kavanaugh argued that the court is turning to the shadow docket more frequently simply because presidents are using executive orders more often—thanks to “gridlock in Congress.” Jackson pushed back, pointing out, correctly, that the reason is that while in the past the court used the shadow docket to maintain the status quo, now the Republicans on the court are using it to enact new policies.
• In decisions that will soon be overturned via the shadow docket, a Portland judge restricted the use of tear gas at an ICE facility located near residential homes.
• A federal judge said that the Pentagon’s press policy, which labels reporters “national security threats” merely for disclosing unclassified information without prior authorization from the Department of War Crimes, violates the First Amendment.
• In his dissent from the tariff decision a few weeks back, Kavanaugh worried about the complicated nightmare of making restitution to all the plaintiffs charged illegal taxes under the Trump regime. It seems Brett just isn’t used to thinking through complicated problems. Looks like we could have a system in place to make repayments within 45 days, no nightmares required.
• I’m not going to pretend to understand the intricacies of Georgia’s 14th Congressional District, the place that inflicted Marjorie Taylor Green on us. I’ll just tell you that the runoff in the special election to replace Green will feature Democrat Shawn Harris against the Trump-backed MAGA plant Clay Fuller. While Trump’s endorsement did indeed seem to help Fuller, Harris did better in the primary than expected. Experts tell me that my plan to sell the Georgia 14th to the Dominican Republic in exchange for Vladimir Guerrero Jr. and a player to be named later is unworkable.

Inspired Takes

• I really liked this piece in The Nation from Maha Hilal about the Trump administration’s performative legality. It does a good job of explaining that while the administration does not act like it is constrained by the law in any way, it often goes out of its way to manipulate and weaponize the law in an attempt to give its actions a veneer of legitimacy.
• The Nation’s Jeet Heer has been all over the illegal war against Iran and its disastrous effects on global stability and the global economy.

Worst Argument of the Week

As usual, this week’s Worst Argument Award goes to Donald Trump. But, this time, I’m happy he’s making it, and I hope he takes it to its logical conclusion. Let me explain.

Trump has a real bee in his hairpiece over the SAVE America Act—the massive voter-suppression law Trump wants passed in order to rig the midterms for the Republican Party. The act would require people to show proof of citizenship to register to vote, and photo ID to cast a ballot. Trump also wants Congress to pass laws banning mail-in voting for everybody except veterans and disabled people.

The bill passed the House but is stalled in the Senate, where it faces a Democrat-led filibuster. Trump wants the Republicans in the Senate to break the filibuster and push the bill through. He has vowed not to sign anything until the SAVE Act is brought to his desk.

It’s a terrible strategy. Senate majority leader John Thune wants to do Trump’s bidding but he doesn’t have the votes in the Senate to kill the filibuster. As Thune put it, “that’s just a function of math.” If Trump sticks to his plan and petulantly refuses to do any further business with his party, which controls Congress, in the months leading up to the congressional midterm elections, it would be an amazing self-own.

I am here for this. It would be great if Trump’s Congress is unable to do any more damage until November (provided, of course, that the Democrats hold together and filibuster the SAVE Act). Alternatively, if the Republicans want to get rid of the filibuster now, so be it. While I believe that the SAVE Act is the most direct legislative threat to the integrity of our elections in decades, the filibuster remains the most long-term threat to the effectiveness of a Democratic government, should Democrats ever be allowed to hold power again.

One option floated by Republicans is to reinstitute a “talking filibuster,” and I love that option as well. A talking filibuster means that no other Senate business can be conducted while a bill is being blocked because the opposing party is literally holding the floor, preventing all other business. Thune says he doesn’t have the votes to do this either, which is a shame. There are 60 executive positions and 40 judicial vacancies awaiting confirmation, and all of those would be stalled during a talking filibuster. I would literally go down to DC and hold a bucket for Democrats to pee into if a talking filibuster would stop the Trump judicial confirmation machine for eight months.

Unfortunately, Trump talks shit all of the time and then doesn’t follow through. Thune has already declared the SAVE Act will be brought to the floor, and he knows that the Republicans will lose that floor battle. The Democrats will filibuster the bill, and that will be that. Trump can stomp around all he wants, but eventually somebody will remind him that Congress still needs to do things and he can’t engage in his own private shutdown for eight months because he’s having a tantrum.

Trump will not shut down the whole country because he wants legislation that will help Republicans rig the election, but, man, I wish he would try.

What I Wrote

I don’t feel like people are paying enough attention to the lawsuit filed by Anthropic, makers of the Claude AI model, against the Department of Defense. Essentially, Secretary of War Crimes Pete Hegseth wants autonomous killing robots now, but Anthropic won’t give them to him, so the Trump administration decided to burn the First Amendment and punish Anthropic for its political views. But it’s not like Anthropic is one of the “good guys.” This fight is really a battle between two entities eager to usher in a dystopian future. I explain it all here.

In News Unrelated to the Current Chaos

New York Attorney General Letitia James is taking a righteous swing against one of the most malign forces in the video-gaming industry: loot boxes.

Loot boxes are an item you can earn while playing certain types of online multiplayer video games; when opened, they generate a random reward. That reward is usually a “skin,”  which is a cosmetic item that changes the appearance of your character or gun or gear.

Some games like, say, Fortnite, allow players to buy these cosmetic skins directly from the in-game shop: If you want your character to look like Darth Vader, you can just go buy the Darth Vader skin. But games that work on the loot-box system don’t let you buy the skin outright. Instead, you buy the box (or, usually, you buy the “key” that lets you open the box you won while playing the game) and that box has a chance to have the skin you’re looking for. But the box also has a chance to generate something that you’re not looking for, or something you already have, or something you generally don’t want. Obviously, the chances are higher that the box will spit out a low-value item than a desirable one.

If this all sounds like gambling to you, it absolutely should. A loot box is a slot machine. I’m not saying it’s like a slot machine, I’m saying it’s an actual slot machine in all but name. When you open loot boxes they literally have spinning wheels or a moving line showing you all your possible outcomes, and you watch while it slows and eventually lands on the thing you get, which is exactly the visualization of a slot machine. Players literally talk about buying keys as buying more “pulls” on the thing to get what they want.

And what they want is to make real money. These skins are not valueless cosmetics enjoyed by hardcore fans; in some games, entire economies, usually run by third-party businesspeople tacitly supported by the game makers, have popped up to buy and trade skins. In one game, Counter-Strike 2: Global Offensive (CS:GO), made by the Valve corporation, there’s even a stocks-like speculative market based on the predicted future value of these skins. One CS:GO weapon skin sold for $400,000 a few years ago and is estimated to be worth $1.5 million today. If you pull one of these rare skins, you’ve hit the jackpot. And, of course, every time you sell one of these skins to another player through Valve’s immensely popular storefront, Steam, Valve takes a cut.

Late last month, Tish James sued Valve for supporting this illegal gambling ring through its games, which include CS:GO, Team Fortress 2, and Dota 2. The complaint alleges that Valve is operating slot machines without a license, because opening loot boxes is not a “skill-based” activity but a straight-up game of chance.

This is not the first time somebody has gone after Valve over its loot boxes. Loot boxes are banned altogether in Belgium and the Netherlands, and heavily regulated in China and Japan. But the United States has kind of been the Wild West of loot boxes, with no regulator or politician except (and I hate to say this man’s name in a positive context) Senator Josh Hawley really trying to do anything to stop them.

You might think gamers would generally appreciate James’s effort to rid the industry of this predator practice, but that is not the case. There are a few reasons for that. The first and most obvious one is that gamers are fanboys and the large CS:GO community is worried about know-nothing regulators interfering with their game. On top of that, Valve is an extremely popular company among gamers, myself included. Valve is generally one of the good guys in gaming (loot boxes excepted).

The second problem is that, while the lawsuit focuses on the illegal gambling inherent in the loot-box system, James’s press release about the lawsuit is just full of the same tired bullshit old people always say about video gaming. “[I]t is important to note that Valve’s promotion of games that glorify violence and guns helps fuel the dangerous epidemic of gun violence, particularly among young gamers who can become numbed to grave violence before their brains are fully developed.” No… it is not important to note that Valve “helps fuel the dangerous epidemic of gun violence,” because Valve does not do that. THE PEOPLE SELLING THE REAL GODDAMN GUNS do that, not the video game selling paint jobs for fake guns. My kingdom for a regulator more interested in helping gamers than insulting them.

But the astute gamer will recognize the third big problem with James’s lawsuit: What will Valve do if the state wins? Valve is estimated to earn over a billion dollars from loot boxes in CS:GO alone. It’s not just going to give that revenue stream up.

The most likely answer is that Valve (if it loses after years of litigation) will just… apply for a gambling license. But to get one, it will have to implement an age-verification system, one that greatly restricts access to its games, not just for people under 18 but for people under the age of 21, because that’s what most gambling laws require. Folks, I don’t have to tell you that a lot of 18-to-21-year-olds play video games (to say nothing of the 17-and-under crowd). Moreover, age verification often creates unnecessary and annoying hurdles for people well over 21 (like me), who don’t want to pull out a driver’s license or plop down a credit card every time they want to play a game. And don’t even get me started on the new “AI age-verification” technology I’ve seen, where you have to let the AI take a picture of your face (that it will totally delete, it super double promises) so it can guess your age.

Most gamers hate loot boxes and would like to see them banned. But from the perspective of those same gamers, this is a lawsuit that could fundamentally change and restrict the access to video games—all because some idiots are gambling thousands of dollars on loot boxes no one is actually forcing them to buy.

All I can say is: Watch this space. Because while James absolutely has the law on her side, Valve is a billion-dollar corporation, and it’s going to fight this with everything it has. And many of the victims of Valve’s predatory practices will be defending Valve because the alternative seems worse.

Now if you’ll excuse me, I have to go not play any of these games and instead play one that allows me to buy a new skin directly from its source, as God intended.

***

If you enjoyed this installment of Elie v. U.S., click here to receive the newsletter in your inbox each Friday.

Anthropic, makers of the “Claude” AI model, has sued the Department of Defense in two separate lawsuits, including one alleging that the government is violating its First Amendment rights. The conflict arose last week when the Trump administration labeled the company a “supply chain risk” and banned government agencies, or any entity working with the US military, from using the Claude system. The Trump administration now calls Claude a national security risk. (The second lawsuit takes issue with this designation, which, until now, has never been used against a US company.)

The blacklisting followed months of fighting between Anthropic and the government. Anthropic wants to keep “safeguards” on Claude that prevent the system from being used to power autonomous weapons—basically, killing machines that can conduct military operations without human involvement—and to engage in widespread surveillance of Americans. The Trump administration wants the company to loosen those safeguards. Evidently, Secretary of War Crimes Pete Hegseth wants the killer robots now, and he doesn’t like Anthropic getting in his way.

The government repeatedly threatened Anthropic with consequences if it didn’t remove its safety restrictions. It would appear the supply chain risk designation and associated blacklisting are those consequences.

All of this should make the Anthropic lawsuit a slam dunk, at least the First Amendment part, assuming there are still judges and justices willing to hold the Trump administration accountable to the Constitution, even in the realm of national security. Anthropic’s complaint makes a pretty clear cut case for a First Amendment violation (I’m less knowledgeable about the other claim, though my assumption, based on prior history, is that the Trump administration is indeed in violation of every law it’s accused of violating).

The simple facts are these: The government wanted Anthropic to make its AI do something. Anthropic didn’t want to make its AI do it, because of its beliefs, and those beliefs are protected under the First Amendment. The government punished Anthropic with an adverse national security designation, because the company wouldn’t do what the government wanted. That is a free speech violation.

It would have been one thing if the government simply decided to use another AI provider or, heaven forbid, stopped using AI for military purposes. That wouldn’t violate the First Amendment; it would simply be the government opting to use a different service. But the government didn’t merely take its business elsewhere—it decided to punish Anthropic by declaring it a national security threat.

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As happens so often, Donald Trump’s chronic inability to keep his mouth shut even when he is violating the Constitution should help make Anthropic’s case for it. On social media, he called Anthropic “out-of-control” and a “RADICAL LEFT, WOKE COMPANY” of “Leftwing nut jobs.” He’s not saying that the company is no longer able to provide a useful service to the government; he’s saying the government is blacklisting the company for its political views.

Hegseth doubled down on these comments. According to the complaint, when Hegseth issued the blacklist order, he “denounced what he characterized as Anthropic’s ‘Silicon Valley ideology,’ ‘defective altruism,’ ‘corporate virtue-signaling,’ and ‘master class in arrogance.’ And he criticized Anthropic for not being ‘more patriotic.’”

All of that violates the First Amendment. The DOD can use any service provider it wants, but it can’t give a company an adverse legal designation for lack of “patriotism.” Punishing people for insufficiently waving the flag is one of those things the First Amendment was designed to stop.

There is recent case law, from the Trump-controlled Supreme Court no less, that should help Anthropic’s case as well. In National Rifle Association v. Vullo, the NRA successfully argued that the superintendent of the New York State Department of Financial Services, Maria Vullo, had pressured banks and insurance companies to cease doing business with the NRA and other pro-gun groups in the wake of the Sandy Hook shooting. The Supreme Court ruled that this violated the NRA’s First Amendment rights, essentially saying that New York State was using its power to take business away from the NRA because New York didn’t like what the NRA stands for.

That ruling was 9–0, by the way. The unanimous opinion was written by Justice Sonia Sotomayor, who is not exactly on the ammosexual side of the spectrum. But: Trying to crush a business because the government doesn’t like what the business does is a textbook violation of the First Amendment. I assume the justices who treat Trump as God on national security issues (Chief Justice John Roberts and Justices Clarence Thomas, Sam Alito, and alleged attempted rapist Brett Kavanaugh) will find some way to walk back their views from Vullo and decide that the First Amendment doesn’t matter when Trump wants your company to automate killing people, but that still only gets the Trump administration to four votes.

Anthropic should win, but, here’s the thing: It’s not exactly one of the good guys. Yes, the current crop of war criminals running the government wants horrible things, but Anthropic mostly wants to provide them. It’s not, after all, like it didn’t seek out the $200 million worth of contracts the government is now trying to take away. And the company’s leaders have been falling all over themselves to talk about how “patriotic” they are, and how much they believe in using AI for national security. They’re basically saying they’ll let Claude do anything other than pull the actual trigger:

Anthropic has therefore worked proactively to deploy our models to the Department of War and the intelligence community. We were the first frontier AI company to deploy our models in the US government’s classified networks, the first to deploy them at the National Laboratories, and the first to provide custom models for national security customers. Claude is extensively deployed across the Department of War and other national security agencies for mission-critical applications, such as intelligence analysis, modeling and simulation, operational planning, cyber operations, and more.

The company wants to help the Trump administration do almost all of the bad things the Trump administration wants to do. And it’s happy to play along in ways both big and very small (see its repeated, ingratiating references to the “Department of War”).

Here’s my read: I feel like Anthropic is just trying to keep plausible deniability for when, inevitably, its system is used in the most obviously egregious way. Just think of it this way: When Claude kills the “wrong” person (or, more likely, village full of people) the lawsuit isn’t going to just come at the US government; it’s going to be company-wrecking litigation filed against Anthropic as well. And I will bet all of Claude’s venture capital funding that the government will try to blame any violent mishaps on Anthropic and not the guys drunkenly running the DOD. All of their rhetoric and safety protocols about what Claude should not be used for strikes me as an early warning liability shield more than anything else.

Anthropic strikes me as the guys who split the atom and then said, “But, we’re only going to use this for science, not to make… bombs that could destroy all of human civilization, right? Right, Robbie Oppenheimer?” Like, sure, you can want your technology to “only be used for good,” but… that’s not how technology works. And it’s definitely not how the US war machine works.

The best thing to happen would be for the DOD to be prevented from using autonomous lethal AI and from surveilling the American public by an act of Congress, not through the defense of Anthropic’s First Amendment rights. This situation cries out for legislation, not a 5–4 Supreme Court ruling about whether the government can blacklist companies that won’t do its bidding.

The Trump administration shouldn’t be able to list a company as a national security threat because it won’t make terminators. But while Anthropic (for now) doesn’t want its technology to be used this way, the next company won’t have a problem with it. OpenAI, makers of ChatGPT, are already trying to fill the void left by Claude.

Eventually we’ll be told that we simply have to make autonomous killing robots because the Chinese or the Russians or the Klingons are already doing it and we can’t fall behind.

As usual, Terminator 2 predicted all of this.

John Connor: “We’re not gonna make it, are we? People, I mean.”

Terminator: “It’s in your nature to destroy yourselves.”

Texas held its congressional primaries on Tuesday, and the good news is that turnout was really high for a primary. I have been harping on the idea that voters who do not want to choose between “a lesser of two evils” in November need to show up to vote in the primaries process. I hope to see record engagement all throughout the spring and summer, building toward the November midterm elections.

I am, however, a little disappointed with the results of the primary on the Senate Democratic side. James Talarico defeated Jasmine Crockett, and while I know there are a lot of people who are excited about the prospect of a current seminarian and soon-to-be minister appealing to the racists who clothe themselves in the church, I can’t help feeling very “Beto O’Rourke II” about the whole thing. Talarico can throw down, verse for verse, against the most Bible-humping Republicans Texas has to offer, but getting excited about that presupposes that there are a significant number of Republicans who are guided by their faith and not their bigotry and misogyny.

I don’t believe that. I believe these people vote for white supremacy and the oppression of others. They’re not followers of Jesus; they’re followers of white privilege and whatever version of religion they can manipulate to support it. I do not have faith that Talarico will lead them to the light.

On the other side of the aisle, Senator John Cornyn and Texas Attorney General Ken Paxton ended up in a runoff to see who will be the Republican candidate this fall. I’ve seen a lot of liberals hoping that Paxton pulls it off, because Paxton is one of the most odious public figures around and Democrats think that he can be more easily beaten in the general election than the stuffed suit that is Cornyn.

I have a problem with that analysis because… Paxton is one of the most odious public figures around. Supporting a worse candidate because you think you can beat him is not something I will ever fall for again. Not after the 2016 presidential election. I’m telling you, if I could go back, I would clap for Jeb Bush. This feels especially true in the case of a person like Paxton in a state like Texas, where Democrats haven’t won a statewide election since 1994. If Paxton wins the primary, Paxton is going to be a US senator, and that is the worst possible outcome.

Writing for The Nation, Ana Marie Cox says I’m wrong about most of this. She says Texas is winnable for a Democrat, Talarico has the juice, and a bruising runoff between Cornyn and Paxton will help their chances.

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I’ll be thrilled if Cox is right. And I’m thrilled people are participating in the primary. I just wish voters weren’t so focused on the circular and self-defeating argument of “electability.” Choosing a candidate based on how you think other people will vote is just insane to me. Most people struggle to pick a restaurant their friends will like, but they think they can pick a candidate that complete strangers will like? Strangers who largely disagree with them and everything they stand for? Electability is a ludicrous argument, which is probably why it’s most often deployed as a dog whistle to warn people against voting for a Black person or a woman or especially a Black woman.

But, whatever, it’s Texas. If Jesus were a Democrat, he could literally lose by six points to a penis brought to life and given a cowboy hat. How else can you explain the continued political existence of Ted Cruz?

The Bad and the Ugly

• In a shadow docket ruling, the Supreme Court ruled that schools in the state of California must “out” trans students to their parents. I’ve said this before, but if you are the parent of a trans kid and that kid doesn’t want to tell you, the fault is yours, not the state’s.
• The court heard oral arguments this week in Montgomery v. Caribe Transportation, a case ostensibly about whether freight companies can be held liable for negligent hiring when their drivers cause accidents. But alleged attempted rapist Brett Kavanaugh made it all about whether Trump can demand that truck drivers read English.
• The court also heard arguments in US v. Hemani, a case about whether a federal law banning drug users from owning guns violates the Second Amendment. Just to put a point on how stupid “originalism” is… there were extended questions from the justices about whether the current federal law is “analogous” to laws imprisoning “habitual drunkards” in the 18th century. We are trying to figure out if a cocaine addict can have an Uzi based on whether Tommy the Town Drunk had to spend a night in the sheriff’s bridewell in 1775. We are not a serious people.
• The Supreme Court refused to hear an appeal from a computer scientist seeking copyright protection for art generated by AI. On his application, the guy listed himself as the owner of the art (he asked the machine to create), and listed his software as the art’s author. The DC Circuit ruled that “human authorship” is a fundamental requirement of the Copyright Act of 1976, and the Supreme Court will let that ruling stand, but I promise you this isn’t the last we’re going to hear about this issue.
• I should mention that the Senate failed to do anything to stop Trump’s illegal war against Iran. Thus continues our long and shameful history of engaging in undeclared wars of choice and aggression while the people’s representatives cower in fear, refusing to exercise the powers given to them by the Constitution.

Inspired Takes

• Mark Hertsgaard and Giles Trendle wrote in The Nation that the illegal war against Iran is also a war against the climate. That’s an angle on the current horror show that I hadn’t thought of before.
• In his Nation article, Jack Mirkinson argues that the US-Israeli war against Iran will, in the long run, be bad for US-Israel relations. He says people will figure out that Israel played a big part in pushing us into this war, and that people ultimately won’t like that. I hope he’s right.
• Over at SCOTUSblog, Zach Shemtob is starting what I believe is an important series. He’s taking a deep dive into how other countries use their high courts, what powers those courts have, and comparing them to our Supreme Court. I have long believed that if Americans understood how weird and powerful our Supreme Court is compared with other high courts in other large democracies, more people would want to reform and defang our court. His first case study is the UK.

Worst Argument of the Week

The Supreme Court unanimously rejected an immigration appeal from Douglas Humberto Urias-Orellana, who claimed that a hit man was out to kill him and his entire family in his native El Salvador. Urias-Orellana applied for asylum in the US, but was denied by an immigration judge. The case went up to the Supreme Court on the question of how much power courts should have to review and overturn decisions made by immigration judges. Urias-Orellana lost, with Ketanji Brown-Jackson writing for a unanimous court ruling that the asylum decisions of immigration judges are nearly final.

I’m not surprised. Indeed, when I previewed this case at the start of the Supreme Court’s term, I predicted not only Urias-Orellana’s loss but also the fact that he would lose 9–0, as he just did.

I still think it’s a terrible decision. I do not think courts should defer to the opinions of immigration judges, at least not under our current immigration system. Immigration judges are massively overworked, meaning that even those judges operating with the best of intentions are often unable to give each individual case the time and attention it deserves. There are also far too few free or affordable immigration lawyers to represent all the asylum applicants, forcing them to go before judges on their own, without someone who can make sure they bring their best evidence and arguments to their hearings.

Meanwhile, assuming immigration judges are bringing their “best intentions” is itself a fiction in the Trump era. Many of the most sympathetic immigration judges have retired or been fired, meaning those who remain tend to be most comfortable with Trump’s xenophobic ideas. Indeed, we’ve recently seen Trump commandeer military JAG officers, who have no immigration training at all, to serve as rubber stamps for Trump’s anti-immigrant regime. The idea that the decisions made by these people should be given nearly complete deference by real judges on appellate courts who actually understand the law is ridiculous. I wouldn’t trust a Trump-appointed immigration judge to know whether Abu Dhabi or Agrabah is the real place.

So why was the decision 9–0? Why did the liberals go along with it and commission Jackson to write the opinion? Well, Jackson’s opinion makes the rulings of immigration judges nearly insurmountable. Her opinion leaves a path, a very narrow path, through which asylum seekers can obtain appellate relief. It says that asylum seekers can appeal their cases if they bring “substantial evidence” that the immigration judge was wrong—evidence that “no reasonable factfinder” would disagree with. Basically, Jackson is leaving the door open for an asylum seeker who (perhaps thanks to better representation) is able to bring more evidence on appeal than they were able to bring to their initial hearing.

I do not believe that door would be open if this opinion had been 6–3 and written by somebody like Justice Sam Alito. The ruling is bad, but it’s not the very worst version of this ruling that could have happened.

Still, “it could have been worse” is cold comfort in the Trump era. Trump has enlisted a cadre of immigration judges into his deportation regime, and the Supreme Court just unanimously told those judges their decisions will probably never seriously face appellate review. That means those immigration judges can really be accountable only to Donald Trump, not a higher court or, heaven forfend, the facts or the law.

What I Wrote

I didn’t really have anything new or interesting to say about the horrors the United States is inflicting on Iran, so I kind of sat this one out. I mean, how many times can I write, “What the president is doing is illegal and… nobody is going to stop him”? How many times can I write, “American foreign policy is violent and evil”? How many times can I write, “Our country is a rogue state that should be sanctioned and punished by the international community”? Don’t worry. I’m sure we’ll attack another brown country soon, and I’ll get to say it all again.

In News Unrelated to the Current Chaos

Major League Baseball is implementing a new system that will allow robots to call balls and strikes. It’s called the Automated Ball-Strike Challenge System (ABS). During the game, players will be able to challenge an umpire’s call by appealing to a computer replay system.

The system has been tested in the minor leagues for a couple of years. It allows only the batter, pitcher, or catcher to challenge the call of the pitch, not other players on the field or even the manager. Each team will get only two challenges per game, but they retain the challenges if they are successful—so you can challenge as many pitches as you want as long as you continue to be right. If challenged, the ABS system (which is just a bunch of high-speed cameras and motion sensors) displays a graphical representation of the previously pitched ball on the big screen. In minor league testing, challenges were resolved in an average of 13.8 seconds.

Here’s an article from MLB.com explaining all you need to know about ABS.

I… kind of hate this. I guess I’m a baseball “purist.” I don’t like the designated hitter, don’t like middle relievers, and don’t like singing “God Bless America” in the seventh inning. (I do like sabermetrics and advanced stats, but that impacts how I understand the game, not how the game is played).

I recognize I’m in the minority here. Fans overwhelmingly approve of the robots. During one spring training game this year, an umpire lost five ABS challenges, which feels like a lot.

But overall the impact has been minimal: During spring training, only 2.6 percent of calls have been challenged thus far, and those challenges have succeeded just 52 percent of the time.

You can take those numbers both ways. Some people might say that getting a few more calls correctly is a net positive, especially if it takes under 15 seconds to get it right. I would counter that getting a few calls wrong here and there has been part of the game for over 100 years, and keeping it that way means I don’t have to wait for a stupid replay before I know if I can be happy or not when reacting to a play on the field.

I’m sure I’ll get used to it. I mean, professional football has degraded to the point where I need to wait 10 minutes to see a replay at three different angles before I know what a “catch” is, and I’m in the process of getting used to that. So I’m sure I’ll learn to accept “Strike three! No. Wait. Ball four! Take your base, lmao.”

But part of being a baseball fan is to look modernity in the face… and scoff at it. I will learn to accept ABS, but I’ll never like it.

***

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It turns out that the only thing Suzanne Collins got wrong when she wrote the Hunger Games trilogy was the idea that the game show would be a function of the government—not the way the government functioned. She imagined that the various games masters would serve at the pleasure of the autocrat, while President Snow would keep himself one step removed to focus on more important matters of state.

In the real dystopian nightmare that is Trump-era America, we’ve got things reversed. The president is the games master. It’s the functionaries, Stephen Miller and Russell Vought, who serve at a remove to focus on the more important matters of state, while the president dyes his hair and puts on a show for the cameras. It’s the president who grabs the microphone to revel in the spectacles of violence and death he has created.

The modern State of the Union address is always political theater—but it wasn’t set out to be. The Constitution positions the president and Congress as adversaries, with Congress clearly given the upper hand. Just look at the State of the Union clause in the Constitution. It’s nestled in Article II (the section that creates the executive branch): “[The President] shall from time to time give to the Congress Information of the State of the Union, and recommend to their Consideration such Measures as he shall judge necessary and expedient.” It reads like a CEO (the president) is being summoned to make a presentation to their board of directors (Congress).

You wouldn’t know this from watching our modern spectacle. Instead of treating the president like its employee, Congress debases itself, yearly, while begging for photo opps with the sitting president. Congress has turned a clause meant to remind the president that he is not a king into the most monarchical event on the political calendar.

The State of the Union is always theater, but this year, Trump turned this annual address into a game show. There were celebrity appearances, surprise reveals, and an extended sports break, all while Trump played master of ceremonies over his kingdom—Ilhan Omar did her best to make her pantsuit appear to be wreathed in flame.

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Truth is always stranger than fiction, and our truths happen to also be more evil. The thing that Collins got right in her novels is that the game show is, of course, a distraction. It’s a way to turn authoritarian violence into a titillating event instead of an enraging tragedy.

But even President Snow wasn’t using the Hunger Games to cover up a pedophile ring.

The Bad and the Ugly

• During last year’s State of the Union (technically just an “address to the joint session of Congress”), Trump thanked John Roberts for allowing him to be president. This year, Trump castigated Roberts and the Supreme Court for their tariff decision, which he believes denied him his divine right to threaten the global economy. I have entirely more sympathy for Dr. Frankenstein than I do for Roberts.
• During the speech, Trump declared a “war on fraud.” The plan seems to be to appoint a new assistant attorney general who will answer directly to Vice President JD Vance but… that’s not how the Department of Justice is supposed to work. The government’s lawyers are supposed to answer to the attorney general, not the White House. Then again, Pam Bondi doesn’t understand how to do her job anyway, so this is probably a distinction without a difference.
• I’m not an expert on tariff laws, and I don’t intend to become one until I need to buy a new PlayStation, but the people who are experts are saying that Trump’s proposed 15 percent global tariffs also exceed his authority under the new law he is trying to use to ram them through without the approval of Congress.
• Kansas has banned driving while trans. That’s not hyperbole. A new state law says that if the gender on your driver’s license doesn’t match the gender on your birth certificate, your license is invalid and you are driving without a license. The amount of bigotry in this country is astounding, and I’m a 47-year-old Black man who is not easily astounded by American bigotry.
• You know, it’s one thing for RFK Jr. to make it easier for the idiots who listen to him not to vaccinate their kids. It’s another thing for him to make it harder for actually intelligent parents to get their kids vaccinated.

Inspired Takes

• The US Men’s National Hockey team won a gold medal, and then promptly turned themselves into political props for our fascist government. The Nation’s Dave Zirin explains their decision to be used to sportswash a fascist regime.
• The Nation’s Kali Holloway explains how MAGA’s reaction to the Epstein files disclosures reveals its “total moral collapse.” Not that anybody should be surprised. MAGA has always used a fake sense of moral outrage as a front for its very real sense of white nationalism.
• In the last two weeks, there have been a slew of high-profile retirements among Republican federal judges. Balls and Strikes covers these retirements and explains why they’ll lead to the first real test of Trump’s judicial confirmation machine—the one that was so effective in his first term. I’m guessing that Trump will still be able to get whomever he wants through the Republican-controlled Senate, and continue to inflict generational damage on the courts.

Worst Argument of the Week

Why was representative Al Green kicked out of the State of the Union? Green brought a handmade sign to the address that read “BLACK PEOPLE ARE NOT APES!,” a reference to the racist video of Barack and Michelle Obama that Trump shared earlier this year. But why did that mean he could be kicked out?

It’s a serious question. What law or code of conduct did Green violate? Are you not allowed to hold signs at the State of the Union? That would be news to me. Just last year, all the Democrats held (feckless, stupid) ping-pong placards during the speech. They weren’t kicked out. Why was Green?

Was he being disruptive? He didn’t say anything, he just held a sign. The only disruption I saw was when 57-year-old Republican Representative Troy Nehls tried to assault the 79-year-old Green and rip the sign out of his hands. Why was Green ejected and Nehls allowed to stay?

But even if he were being disruptive, that’s never been a reason for someone to be kicked out of the speech. For years, during the Biden administration, we had to endure Majorie Taylor Green and Lauren Bobert braying like donkeys through half the speech. This year, Representatives Omar and Rashida Tlaib shouted back at Trump while he lied. They weren’t removed. Why was Green?

Was the message on the sign somehow offensive? Can we not all agree that Black people are not, in fact, apes?

Near as I can tell, Al Green was kicked out of a joint session of Congress for no reason other than that he is an old Black man, and everybody knew nobody would stand up for his right to be there. The media wasn’t going to put up a fuss about a member of Congress being excluded from the speech against his will, and not even his fellow Democrats would do or say anything about it. Hakeem Jeffries could be counted on to sit there, mute, while a member of his caucus was deprived of his free speech rights, and everybody knew it.

Well, I’m putting up a fuss. Black people are not apes. And we can’t just be kicked out of places where we have a right to be for no reason.

What I Wrote

• The tariff decision was a mess. That fact has kind of been overlooked because Trump had a temper tantrum after he lost, but I walked people through what the conservatives—both the ones who voted for Trump and the ones who voted against him—were actually saying. Folks, these people are unhinged.
• People might be overlooking the most important Supreme Court decision that came down this week. The justices ruled, 5–4, that the post office can refuse to deliver your mail. That’s pretty significant if you are thinking of, say, mailing in your ballot this November. I explained why the anti-democracy wing of the court turned to its favorite “Black friend,” Clarence Thomas, to do this dirty work. 

In News Unrelated to the Current Chaos

Late last Friday, Phil Spencer, head of Microsoft’s gaming division (known more commonly as Xbox) suddenly retired, effective Monday. His second-in-command and heir apparent, Sarah Bond, resigned. Microsoft announced that the new Xbox CEO would be Asha Sharma. Previously, Sharma was head of Microsoft’s CoreAI division. 

This means that Microsoft pushed out its video game leaders and replaced them with its AI leader. Microsoft is a global behemoth of a company, but Xbox is one of its only consumer-facing divisions. The move strongly suggests that Microsoft intends to shove AI in the face of every gamer, whether they like it or not, and the rest of the industry might be forced to follow along.

Sharma (who has absolutely no experience in gaming and created her Xbox account only a month ago), is saying the right things. In her opening statement to staff, she said that she did not intend to use “soulless AI slop” to replace creative people. Of course, “soulless” is a load-bearing word and could mean anything. I doubt that the head of Microsoft’s CoreAI division thinks all AI is “soulless,” and I’ll bet my premium currency that we’re going to get a lot of “really thoughtful and soulful” AI (slop) from Xbox and Sharma.

Xbox lost the console wars. Both Sony’s PlayStation and Nintendo’s Switch have a far larger user base than Xbox. But that’s just the hardware. Xbox has bought up many game developers, including the giants Activision-Blizzard, which they bought for $68.7 billion a few years ago. They own Minecraft, which is the game most of your kids are playing. Their influence on not just the gaming industry but our children’s entire cultural ecosphere cannot be understated.

And now they’ve got their chief AI pusher in charge of all that content.

AI is not inevitable, but the billionaire class is sure trying to make it inescapable.

***

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Clarence Thomas is the worst thing to happen to Black people since Chief Justice Roger Taney, the author of the Dred Scott decision. For nearly 30 years, he has been a kind of bouncer working the door of the Supreme Court for the white supremacists, rebuffing every attempt Black people have made to achieve equality, fairness, and justice.

His latest outrageous attack on equal treatment under the law can be found in his majority opinion in United States Postal Service v. Konan. USPS v. Konan is a critical case that could directly affect the integrity of upcoming elections, but it’s gone somewhat under the radar because, on its face, the case is just about the post office. The plaintiff, Lebene Konan, is a landlord with two rental properties in Texas. Starting in May 2020, the post office stopped delivering her mail. Then it stopped delivering mail to her tenants. The post office claimed there was some dispute over the rightful owner of the properties. Over the course of two years and various attempts to rectify the problem, Konan alleged that the post office was intentionally preventing her from receiving mail, thus making it harder for her to run her properties and discouraging new tenants from moving in.

This is where I point out that Konan happens to be a Black woman trying to be a landlord in Euless, Texas (a suburb of Dallas). Konan filed various lawsuits, including ones alleging racial discrimination at the hands of the post office. Most of her claims were dismissed by the Fifth Circuit Court of Appeals, the most conservative court in the country.

Only one of her claims survived: The Fifth Circuit agreed to let Konan argue her claim under the Federal Tort Claims Act (FTCA). The Trump administration appealed, urging the high court to protect the post office from a trial and additional judicial scrutiny.

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Generally speaking, you cannot sue the government to recover damages in a tort lawsuit because of the concept of “sovereign immunity”; the idea, essentially, is that the government cannot be held liable for monetary damages arising out of actions taken by the government. But under the FTCA, the government waives its sovereign immunity for issues involving intentional misconduct by government officials.

There are exceptions to the FTCA, however, and a pretty big one involves the post office. It’s called the “Postal Exception,” and it says that the post office cannot be sued on claims “arising out of the loss, miscarriage, or negligent transmission of letters or postal matter.” I get why this exception is there. Mail gets lost all the time. It would be unworkable if people could sue the government every time a holiday card went missing.

But Konan is not suing over her lost greeting cards. She is suing because, she argued, her mail was neither lost, miscarried, nor negligently transmitted but intentionally not delivered—and the postal exception does not cover intentional malfeasance by the post office. She should therefore be able to recover damages for the post office’s willful attack on her business.

Clarence Thomas and four other Republican justices disagreed, however, and overruled the Fifth Circuit. In his majority decision, Thomas argued that the post office is immune from liability, even when its workers intentionally refuse to do their jobs. To get there, he tortured the English language beyond all recognition. He twisted the words of the postal exception, using the only book he seems to read, the dictionary, to come to the conclusion that “refusal” to deliver mail is the same as “loss” “miscarriage” or “neglect.”

To put this another way: Thomas has made the case that the postal exception is so broad that the post office functionally cannot be sued under the FTCA for anything. The post office already can’t be sued for accidental malfeasance; now, according to his ruling, it can’t be sued for purposeful malfeasance. By Thomas’s logic, the post office can burn your mail and there’s nothing you can do about it.

It is notable that Justice Neil Gorsuch, the most “textual” justices of the bunch, joined the dissent in this case, which was written by Justice Sonia Sotomayor. Thomas’s abuse of the English language in serving of hurting a Black landlord was so ridiculous that it made even Gorsuch blush.

In this dissent, Sotomayor pointed out the problems with Thomas’s word games. Apparently, she also has access to dictionaries. She argued that the whole concept of “losing” something suggests unintentional actions: “see also Webster’s New International Dictionary 1460 (2d ed. 1934) (defining ‘loss’ as an ‘[a]ct or fact of losing…esp[ecially], unintentional parting with something of value’). For good reason: As the Fifth Circuit observed below, ‘no one intentionally loses something.’”

I would like to be able to tell you that the tragedy of this decision will be felt only by Konan, or only by Black women landlords. But if the post office can intentionally refuse to deliver a Black landlord’s mail, you know what else it can intentionally not deliver? A Black woman’s ballot. Or a Black man’s ballot. Or every ballot coming out of a zip code where Black people live. Clarence Thomas just gave the green light to Trump’s post office to intentionally “lose” mail-in ballots, six months before the midterm elections.

If you listened to the State of the Union, you might have noticed—between the awarding of medals and airing of grievances—Trump’s call for an end to mail-in ballots. He said: “We have to stop it, John,” while looking directly at Chief Justice John Roberts.

Roberts voted with the majority and joined Thomas’s opinion in this case, by the way.

If Trump tries to rig the elections, there will be a bevy of lawsuits, of course. But USPS v. Konan just cut off one obvious avenue of legal redress. The ruling will prevent individual voters from suing the post office should the post office simply refuse to transmit their mail-in ballots.

Black voters will be the ones most likely to suffer that deprivation of voting rights at the hands of the US Postal Service. Clarence Thomas knows all this, and while it would be easy to say he knows this and doesn’t care, I think he does care. I think he cares a great deal about the suppression of the Black vote; he just happens to think the suppression of Black votes is a good thing. I think the destruction of Black political power has been one of the motivating factors for his entire judicial career.

To my mind, the difference between Thomas and all the white supremacists that have come before him is that most of those guys were interested in the advancement of white privilege. Thomas is motivated by the destruction of Black power. It’s a slight difference, but that difference is what makes Thomas the worst.

On Friday, Donald Trump delivered a characteristically unhinged press conference in the wake of his 6–3 defeat in Learning Resources, Inc v. Trump—better known as the tariffs case. The court ruled that the tariffs Trump issued under the International Emergency Economic Powers Act were unconstitutional, and the loss sent Trump into a rage. He castigated the justices who ruled against him, including the Republican ones, calling them “sleazebags” and “slimeballs” and accusing them of being under the influence of foreign powers. He praised the dissenting justices, specifically calling out alleged attempted rapist Brett Kavanaugh as a “genius.” He then seemed to treat the dissent as if it were the winning, majority opinion and imposed new 10 percent global tariffs under a different statute (which he raised to 15 percent over the weekend… because, why not), brushed off the statutory language dictating that his new tariffs must expire in 150 days, and said that the law is now “clear” about his authority to issue tariffs without going to Congress first.

Friends, nothing is “clear.” It’s not clear if the government will have to make restitution to the businesses that have been hit with illegal taxes under the Trump administration’s tariff regime. (This is what the plaintiffs in Learning Resources were actually asking for). It’s not clear if the majority of the Supreme Court will approve of these new tariffs. And if they don’t approve, it’s not clear that Trump will follow the court’s orders when it rules against him. The only thing that is clear is that the global trade economy remains at the mercy of the whims of a madman, while American consumers will continue to pay the price for Trump’s petty international squabbles.

One reason for all this confusion is that the Supreme Court’s conservatives are split on how to apply what they call the “major questions doctrine.” The court didn’t actually use the doctrine in this case, but the conservatives wanted to. The liberals held firm and Trump lost on different grounds, but most of the hundreds of pages of the decision involved the Republicans sniping at each other over this idea.

According to those who believe in it, the major questions doctrine holds that for issues of economic or political “significance,” the Constitution does not intend for the president to act unilaterally. “Major” issues must be decided through legislation, and if Congress wants to give the president unilateral powers, it must do so through clear, precise statutory language.

In theory, the major questions doctrine limits what a president can do without the support of Congress. That has been a long-term goal of conservatives since at least Lyndon Johnson and the civil rights era. But in practice, it puts all the power in the hands of the Supreme Court. Whenever Republicans on the Supreme Court talk about restoring power to Congress, they’re really talking about grabbing power for themselves: What’s an issue of economic or political significance? Only the Supreme Court knows. What constitutes clear and precise statutory language? Only the Supreme Court knows. A reasonable person, president, or legislator cannot know what a “major question” is, or what language is clear enough to avoid running into a problem. Under the major questions doctrine, all roads lead to the Supreme Court. To paraphrase George W. Bush, the Supreme Court, not Congress or the president, becomes “the decider.”

The reason Republicans on the court spent so much time yelling at one another over this doctrine that didn’t actually decide the case is because the major questions doctrine has a critical flaw: It’s entirely made-up. It’s not written down anywhere—not in the Constitution, not in the Declaration of Independence, not in the Magna Carta, not in the Bible or the Mahabharata. It’s just not a historical thing. Nobody currently on the court learned about major questions doctrine in law school, because it hadn’t been invented back when they were in law school. Conservative law professors essentially concocted this “doctrine” circa 2014 (they say necessity is the mother of all invention, and the existence of a Black president certainly seemed to necessitate the invention of ways of curtail Barack Obama’s powers) as they were trying to find some way to limit the effectiveness of Obamacare. Justice Neil Gorsuch soon became the idea’s champion.

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You can see why this doctrine is useful to a power-hungry Supreme Court justice. At its core, it allows the unelected members of the court to overrule the policies of an elected president because it deems those policies important. That’s a wild, unrestrained power. Imagine going through the trouble of winning an entire presidential election only to be told by the court that you can’t enact your policies because they are “politically significant.” The major questions doctrine places the Supreme Court first among allegedly equal branches of government.

All of the Republicans on the high court now agree that their imaginary power is real, but, luckily for those of us who would like to vote for our leaders, that’s all the Republicans can agree on when it comes to this doctrine. They don’t agree on where, legally speaking, the major questions doctrine comes from, when it should be used, or what (if any) limitations should be placed on the power they’ve given themselves. That’s why the doctrine has thus far only been used to stop the policies of Joe Biden. In the case of Biden’s student debt relief policy, for instance, the Republicans could agree that they didn’t like the policy—and, since they didn’t have any constitutional or legal reasons to block it, they invoked the major questions doctrine to stop it.

The tariffs are a different matter. The Republicans on the court didn’t agree that Trump’s tariffs were bad policy, so they couldn’t agree on whether or even how to use their new “Democrats lose” button against Trump. Justices John Roberts, Neil Gorsuch, and Amy Coney Barrett all said that the doctrine could be used to prohibit Trump’s tariffs, but the liberal justices—Sonia Sotomayor, Elena Kagan, and Ketanji Brown Jackson—refused to invoke the doctrine. Trump lost the case, 6–3, on the point that the International Emergency Economic Powers Act did not give Trump the authority he claimed to impose tariffs. That’s it, no major questions required.

Democrats in Congress could learn something from the liberal women on the Supreme Court. Despite being in the minority, and despite being offered a whackadoodle theory that would have secured them a short-term victory in this case, the liberal justices held firm, didn’t blink, and forced the conservative supermajority to try to find the votes for their antidemocratic “doctrine” among themselves.

The Republicans couldn’t. They fractured on how to use the major questions doctrine in the tariffs case, with justices Roberts, Gorsuch, Barrett, Kavanaugh, and Clarence Thomas all writing separately, each with their own pet theories on how it should work. I’ve seen this kind of splintering of a narrative before because… I watch all Star Wars content. The major questions doctrine is just as much of a fiction as “the Force.” If you watch Star Wars and its trillions of spinoffs, you know that the different writers give Jedis and Sith different powers, abilities, and weaknesses, based on what they need the Force-users to do in their stories. It’s the same with Republicans on the Supreme Court. One of the principal benefits of basing your universe on a fictional power is that it can do whatever you say it can do; the drawback is that different people will say it can do different things.

Only three Republican justices thought that the major questions doctrine should be used in the tariffs case, but even they disagreed about how and why. Chief Justice Roberts said that the major questions doctrine must apply to tariffs, if it applies to anything, because the power to tax (which is what a tariff is) is the most “major” economic issue to the country. Gorsuch said the doctrine is a bedrock constitutional principle (it’s not) that must be strictly applied in nearly all cases where the president acts without explicit congressional authority (including this one). Barrett, in contrast, said that using the major questions doctrine is a “common sense” analytical tool, but need not be the only thing the court considers.

The dissenters also couldn’t come to a consensus. Kavanaugh said that the doctrine “does not apply in the foreign affairs context,” meaning that presidents can do as they please in foreign matters (like imposing tariffs) as long as there is a sliver of congressional authority for them to do so. Kavanaugh’s formulation is a completely new thing that had never said about the doctrine until Friday, and reeks of him making something up on the fly to please Trump. Thomas, meanwhile, agreed with Kavanaugh, but went even further, basically crowning the president a pirate king completely untethered from Congress as soon as his desires hit the water’s edge. Justice Samuel Alito joined Kavanaugh’s dissent but didn’t write separately—I assume because he was too busy planning his retirement party.

All of this chaos means I really can’t tell you how the Supreme Court will decide the next tariff case. Will the Republicans band together to decide that the language in other statutes supports Trump’s tariffs “more clearly”? Or will they continue their sectarian war over whose imaginary friend is more powerful? And what about all of the non-tariff cases where major questions might also apply? Is birthright citizenship a “major question” or is it a foreign policy issue where the president is a god-king? Will Luke Skywalker ever be able to shoot lightning from his fingertips, or is that something only “bad” people do? Who can know? Who can ever know when the Supreme Court is just making it all up as it goes along?

What I can know is this: During tonight’s State of the Union address, Trump will threaten new authoritarian policies. Republicans will clap like trained seals for those policies, but they won’t use their legislative authority to pass them. Instead, Trump will make unilateral executive declarations, Congress will do nothing, and it will set off another round of lawsuits and appeals.

Eventually, the Supreme Court will tell us if the State of the Union is a “major question” or a pointless exercise.

On Thursday, Tom Homan, the corrupt, fascist, “border czar” the media insists on treating as respectable, announced an end to “Operation Metro Surge,” which is the Trump administration’s name for its unconstitutional invasion of Minnesota. Homan declared “success,” shared some data on the numbers of immigrants who’ve been deported or sent to concentration camps, didn’t list the numbers of people his goons have assaulted, injured, or murdered, and scuttled off. I assume the next time he receives an envelope stuffed with cash it will be wrapped in a “Mission Accomplished” banner.

I’m also forced to assume that Homan is either outright lying about ending the occupation of Minnesota or trying to throw the media off the scent in some fashion. That’s because the only thing this administration does is lie or misdirect, and taking its people at their word is something only fools and corporate media publications do. Ever since Homan replaced SS-cosplayer Greg Bovino in Minnesota, the media has lost interest in the ongoing horrors in Minneapolis/St.Paul. Declaring an “end” to the operation doesn’t necessarily mean ICE will leave the Gopher State.

I must also point out that Homan’s alleged ending of the great Northern occupation coincides with the budget showdown over DHS funding in Congress. Trying to make nice just long enough to secure another year of funding for their goon squads seems like exactly the kind of thing Republicans would do—and Democrats would fall for.

Luckily, some Democrats in Minnesota don’t seem to be too eager to trust. On Thursday, St. Paul Mayor Kaohly Her signed an ordinance requiring federal agents to identify themselves. When asked about Homan’s comments, she said, “Any announcement of a drawdown or end to Operation Metro Surge must be followed by real action.” Minnesota Governor Tim Walz noted that Homan has not told people when the governments’ goons will be leaving, but Walz offered to help them “pack their bags.” 

Senator Amy Klobuchar, who is running for governor but has not exactly covered herself in resistance glory, said, “ICE withdrawing from Minnesota is just the beginning. We need accountability for the lives lost and the extraordinary abuses of power at the hands of ICE agents, and we must see a complete overhaul of the agency.”

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No, Senator Klobuchar, we do not need an “overhaul” of the agency. We need abolition of the agency.

You can see why I have trust issues. I don’t trust Homan to keep his word, don’t trust the media to keep reporting on the facts instead of merely transcribing the administration’s press releases, and don’t trust Democrats not to sell everybody out in their endless, cloying attempts to find the center between fascism and liberty.

As I said a few weeks ago, Minnesota made Trump blink, and that is a kind of victory. What we’ve seen there is proof that dedicated, nonviolent resistance can work. But that work is not finished, and it will not be finished until the fascists have been returned to the barbeque-ammo joints from whence they came, their institutions discredited and destroyed, and their leaders held accountable for their crimes.

The Bad and the Ugly

• When I say we need to abolish ICE, I’m talking about getting rid of all masked goon squads operating under the color of law. That includes the ones working for the state of California. Earlier this week, a federal judge blocked California’s “No Secret Police Act,” which prohibits federal agents from wearing masks. When I saw the headline, I was pissed, but then I read the opinion by US District Judge Christine Snyder (a Clinton appointee). She said the law discriminates against federal agents, because it allows state police to wear masks. So, it turns out, I shouldn’t be pissed at the judge; I should be pissed at the California lawmakers who legislated a carve-out for their own secret police in their No Secret Police Act. Politicians are unreliable assholes.
• The Ninth Circuit Court of Appeals will allow Trump to revoke Temporary Protected Status for immigrants from Honduras, Nepal, and Nicaragua. These are judges we can be pissed at.
• The Fifth Circuit Court of Appeals backed the Trump administration’s mass detention policy of locking people up without a hearing, trial, or opportunity to post bond. I mean, I wake up every day pissed at the Fifth Circuit. I hate the Fifth Circuit so much I boo the number five when it comes up on Sesame Street.
• US District Judge Mustafa T. Kasubhai (a Biden appointee… based on his name I was pretty sure he wasn’t a Trump appointee, but I googled anyway because I don’t assume my prejudices are facts) dismissed the Justice Department’s efforts to seize voter information from the state of Oregon. The judge ruled that the DOJ can no longer be trusted, saying that the “presumption of regularity” traditionally accorded to the government “no longer holds.” If you subscribe to The Nation, you’ll be getting a print piece on what this all means, after our heroic interns… replace my prejudices with facts. 
• Speaking of the utterly untrustworthy DOJ, Attorney General Pam Bondi refused to turn around and look Jeffrey Epstein’s victims in the face during her four-hour testimony in front of Congress about the Justice Department’s handling of Epstein files. Instead, she tried to make the hearing so toxic that people would forget Epstein’s victims altogether. I don’t think it worked, but I’m sure it made Trump happy.

Inspired Takes

• David Gelernter, the Yale computer science professor seen in the Epstein files essentially pimping out one of his students, is no longer teaching students. Yale undergrad Zachary Clifton broke the news in The Nation as part of a deep dive into the professor’s career. One of the key takeaways is that Gelernter is at Yale not because he’s a particularly great computer science professor but because he’s a Republican who is a climate denier and brings viewpoint diversity. This happens all throughout academia: Universities bring in shoddy conservative “thinkers” simply because they are conservatives, and those same “thinkers” then go on to embarrass the university when they… act like conservatives act. Another example from just this week is Ohio State professor Luke Perez, a conservative hired to promote intellectual diversity. Perez was placed on leave after punching a reporter who was trying to interview the Republican that Perez had invited to speak on campus. Play stupid games, win stupid prizes.
• The Nation’s Katha Pollitt got her first exposure to the art of deepfakes and… well, she tried to put Melania Trump in a Saranwrap bikini to get around Grok’s nudity filters, so it’s the kind of thing you’ll enjoy reading. Pollitt’s overall point is that deepfakes are extremely bad and harmful, a point on which I fully agree. However, the lawyer in me always gets uncomfortable when it comes to regulating deepfakes because of the potential to infringe on First Amendment protections, including the protection that allows people to make “clear parodies” of public figures and generally mock them. The way to slice it is to say you can’t make deepfakes about private individuals but you can make them about public figures, which is similar to how defamation laws work. But that solution runs into problems, because some of the most egregious deepfakes involve fake Taylor Swift sex tapes and people putting words in the mouths of former presidents—two things that would be protected under my proposal. Don’t worry, though: When I come up with an actual solution to this, I will tell you, and then you can all make deeptruth videos of Congress ignoring me. 

Worst Argument of the Week

Donald Trump’s approval rating is nearing new lows. That’s not news. What is news is that Gallup, which has been tracking presidential approval ratings for 88 years, will no longer produce a presidential approval poll.

I was born at night, but not last night. You will simply never convince me that Gallup just happened to make the momentous decision to stop tracking Trump’s approval rating at a moment when those numbers are very bad for the authoritarian in chief. Making this decision now smacks of complicity and is yet another failure of a major institutional player in an era of institutional failures.

There are, in theory, very good reasons for Gallup to stop tracking presidential approval ratings. For one thing: They’re stupid. Trying to assess the success or failure of an administration based on whether people say they “like” what the president is doing is like trying to assess the health of a company based on how many people liked its Super Bowl ad. The poll contributes to the “horse-race” coverage of our politics, which is one of the many reasons the coverage of our politics often resembles warmed-over crap.

However, the timing of Gallup’s decision is yet another example of a major organization changing the rules in real time to bend itself to Trump’s will. It’s similar to when The Washington Post and the Los Angeles Times decided to “not make presidential endorsements” at the precise moment their owners decided they did not like the endorsements their editors were making. It doesn’t look like you’re standing on principle when changes to your well-established procedures just happen to coincide with things that will make Trump happy; it looks like you’re bowing to a strongman.

If Gallup wanted to make this change in an honorable way, it should have announced that it’s going to start this policy with the next administration. “In 2029, we will stop polling approval ratings.” That would make sense. That would suggest a different policy strategy. Doing it now, months before the midterms, no less, just looks like Gallup is trying to help Trump.

Because it is trying to help Trump.

What I Wrote

As I said, I’ve been working on a print piece, so nothing from me this week. Also, I’m off next week. Also, and I cannot emphasize this enough, I am so freaking cold, y’all. Like, “typing in fingerless gloves” cold. I’m not even going anywhere next week. I’m just planning on staying under my covers like a bear in the hope that, when I wake up, it’ll be spring. 

In News Unrelated to the Current Chaos

During an NBA game this week, the Utah Jazz was ahead of the Orlando Magic by 17 points. In the fourth quarter, Utah decided to bench four of its five starters, including the players who were leading the team in points for that night (and the season in general). Orlando came back, and beat Utah by three points.

Utah is “tanking.” The team is intentionally trying to lose games in order to secure a better draft pick. Tanking can happen in all sports that have a draft system in which the worse teams get better draft picks, but it is rampant in the NBA. For the most part, players won’t intentionally try to play badly, even if they’re on a bad team; they’re playing for their next contract, and they want to look as good as possible for other teams that might want to sign them or trade for them. That means the tanking falls to the coaches. They put good players on the “injured list” when they’re not really hurt, or limit their minutes so they can’t play too long and potentially win the game. Or they do what the Jazz did and refuse to play their best players when they’re accidentally winning.

There’s not really anything the fans can do. Buying a ticket should come with an implicit promise that the team is going to, you know, try to win the game, but that promise is not legally binding. Many fans even support tanking as the rational play: If the team is not good enough to win a championship this year, and there’s a stud young player in next year’s draft who might help the team win in the future, the team should lose now, increase its chances of drafting that player, and hope for the future.

But there might be something gamblers can do. Gambling laws require games to be “fair” in some sense, and intentionally trying to lose is not fair. Real people had real money on the outcome of the Utah-versus-Orlando game. The NBA encourages people to bet on its games. It is illegal for those games to be rigged. If a player tried to lose, intentionally, that player would be investigated by the government and likely banned from the sport. Earlier this year, 26 people, including some college basketball players, were indicted on racketeering charges for trying to manipulate gambling outcomes. Last year, NBA players were indicted for illegal gambling, even though most of the alleged misconduct involved illegal poker games supported by the Mafia (of course, getting in debt to the Mafia at the poker table is the gateway drug to trying to lose games on the basketball court).

I don’t see why tanking should be held to a different standard than other forms of bet rigging. Utah is intentionally manipulating the outcome of gambling events by trying to lose. What they’re doing should be illegal under any gambling law in the nation.

There are a lot of discussions inside the NBA about how to address tanking, but I have the quickest way to fix it. If the state of Nevada were to decide that it will no longer accept bets on NBA games because the outcomes are rigged, I promise you the NBA would stop tanking by next season. Degenerate gamblers could save basketball.

***

Note: Elie will be off next week but looks forward to returning with a fresh Elie v. US on Friday, February 27.

Supreme Court Justice Samuel Alito has a new book coming out. It’s titled How Watching Fox News Made Me the Worst Version of Myself.

Just kidding, I don’t actually care what it’s called. (Fine. I can Google it for you. It’s called So Ordered: An Originalist’s View of the Constitution, the Court, and the Country.) It’s my job to read such things and… I won’t read his book. They can’t make me. Life is entirely too short.

I bring it up because the book is scheduled to be released October 6, 2026. That’s a curious date. The Supreme Court starts its 2026–27 term on October 5, the first Monday of October. Alito’s book is set to drop the next day.

It sure feels like Alito doesn’t plan on having a real job the Tuesday his book launches and instead thinks he’ll be free to run around the country promoting it. By way of context, here are publication dates for the the last four sitting Supreme Court justices who released books:

Amy Coney Barrett, September 9, 2025
Neil Gorsuch, May 5, 2025
Ketanji Brown Jackson, September 4, 2024
Sonia Sotomayor, January 25, 2022 (a children’s book)
Sonia Sotomayor, September 3, 2019

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May 2026 Issue

It makes sense for the justices to release their books in September. You have all the attention on the upcoming term, but the justices are free to fly around the country, giving talks and doing interviews to promote their books. May also makes sense, because the court is no longer hearing cases then, just writing and editing opinions.

The justices are busy in October. Arguably too busy to sell a book.

The publication date of the book makes me think that Alito is planning to retire at the end of the Supreme Court’s current term, in July. That would give Trump, and the Republicans who still control the Senate, time to appoint and confirm his replacement before the midterm elections.

Alito watches TV. He reads the papers. While the Republicans are still favored to hang on to the Senate, it’s far from certain. Alito turns 76 in April. He’s accomplished most of the evil he set out to do, including overturning Roe v. Wade. With Republican poll numbers flagging, I don’t think he wants to roll the dice and be forced to hang around on the court should Republicans lose the Senate this fall.

The publication date of his book is a giant tell. I think he’s leaving while Republicans still have the political power to replace him with another Sam Alito who is 30 years younger.

I hope I’m wrong about this. I don’t want Trump to be able to replace Alito with another Alito. He will likely retire by the end of Trump’s term anyway, but the best-case scenario would be for him to stay on out of the hubristic belief that Republicans will hold on to the Senate—and be wrong about that.

The Bad and the Ugly

• No matter what Tom Homan says, ICE is still on the ground in Minnesota, violating constitutional rights and threatening people with violence. It’s only a matter of time before they murder someone else.
• House Democrats are demanding that the Department of Homeland Security end warrantless home invasions.
• A federal judge temporarily blocked DHS Secretary Kristi Noem’s attempts to bar members of Congress from touring ICE detention camps.
• Minnesota schools are suing DHS over its invasion of schools and abduction and harassment of children.
• Republicans in Arizona are fighting a Biden-era regulation that prevents mining uranium in the Grand Canyon. To recap: There are people who want to mine the Grand freaking Canyon for uranium. There are enough of those people that Biden had to make a whole-ass federal regulation—giving the canyon and the surrounding area “national monument” protection—to stop them. Yet, undeterred, those people are now fighting that regulation in court. I just don’t know what to do with this information.

Inspired Takes

• New York City Mayor Zohran Mamdani took to The Nation website to endorse Kathy Hochul for governor. I’m not there yet. (Disclosure: I know one of her primary opponents, Antonio Delgado, personally, from law school). I haven’t forgotten her attempts to force Hector LaSalle onto the state’s highest court or her habit of governing as Cuomo-lite until just a few months ago. The sitting NYC mayor trying to make nice with the sitting governor in Albany does not move my needle.
• Two of my favorite broadcasters, Dean Obeidallah and Joy Reid, sat down with Laura Flanders in The Nation to talk about the abject failure of the mainstream media.
• The Boston Review hosted a forum on “How Not To Defeat Authoritarianism” (emphasis added) that excoriated the Democrats for their weak-sauce responses. It is fire.

Worst Argument of the Week

The Food and Drug Administration is targeting gender-affirming… garments. Specifically, Trump’s FDA sent letters to 12 companies that make or sell chest-compressing garments, warning them that their products are considered “medical devices” and will be regulated as such. The FDA warned that the companies’ operations could be shut down if they continue to “market them as a treatment for gender dysphoria.”

The war on transgender individuals now apparently includes tight clothing.

First of all, in case this needs to be said: Every single article of clothing is gender-affirming in some way. You think I like wearing pants? I do not. I would gladly leave my house in a kilt, commando-style, because that is just way more comfortable. I don’t, because cis-hetero men wearing skirts is frowned upon in my culture. Ditto roaming the streets sans boxers. But I don’t see the FDA warning Fruit of the Loom that its products are now medical devices.

The FDA’s threats are aimed not at what these products do (again, body-smushing garments are ubiquitous in our society) but who is wearing them and why. And that is a straight-up content-based restriction that violates the First Amendment. It cannot be the case that you are allowed to market chest-compressing undergarments to a cis woman who wants to play tennis but cannot market them to a trans man who… wants to play tennis. That is an unconstitutional restriction on expression.

It’s almost funny, in the way that fascists’ getting mad at something small is always kind of funny. But it’s also incredibly serious that these attacks on transgender people are so happily carried out by Trump’s FDA. Remember, the FDA also regulates actual drugs and medical treatments, including the hormone blockers and boosters that some trans people take. Treating trans people who want to take drugs differently from cis people who want to take the same drugs is the unconstitutional—and deeply hypocritical—precedent for all of these attacks.

I think if people understood that the right wing’s attack on hormones is just as stupid as the right wing’s attack on glorified Spanx, more people might support the concept that trans people should be treated equally under the law.

What I Wrote

Trump and the Republicans are going to try to rig the upcoming midterm elections. Their plans are out in the open. I argue that Democrats need a coordinated response to the Republicans’ coordinated attacks, and I have a pretty good idea for where to start.

In News Unrelated to the Current Chaos

A UK court ruled that stealing money in a video game can be treated like stealing money in real life. And I am 100 percent here for it.

The issue arose in the popular online game RuneScape. A developer, Andrew Lakeman, who worked for Jagex, the makers of RuneScape, allegedly used his access to the game to essentially hack the accounts of various players. He’s charged with stealing 705 billion “Gold” from 68 players.

Most games these days have two kinds of currencies: “in-game” currency and “premium” currency. In-game currency can generally be earned just by playing the game (defeating monsters, selling spare items, yada yada). Premium currency can generally be earned only by paying real-world money and buying the premium currency from the game’s developers. Sometimes games will allow you to earn some premium currency from playing the game, and sometimes games will allow you to sell premium currency for in-game currency, but it’s best to think of these two currencies as separate: In-game currency is earned with your time, premium currency earned with your wallet.

Nobody would dispute that stealing premium currency is theft, because it’s obvious that such currency has a real-world value, as evidenced by the fact that game developers charge for it and players pay for it. But “Gold” is RuneScape’s in-game currency. Most courts treat this currency as valueless. Lakeman, the former developer, argued that he could not be charged under the UK’s Theft Act because he only stole this valueless, in-game currency.

But a UK appellate court disagreed. The court ruled that each gold piece could be regarded as “property” of the players who earned them, even though the currency is functionally “infinite” because Jagex can just make more Gold whenever it wants.

This is the right decision. Because when you steal in-game currency from people, what you’re really stealing is time. Players put in a lot of time killing the monsters and farming the items and making Gold for their characters in the game. Stealing it is theft.

And “the market” knows that time is money, even in this case. Lakeman reportedly sold his ill-gotten Gold for around $750,000 of Bitcoin. Why would somebody buy in-game currency for real-world money? Well, because it takes a lot of time to amass 705 billion Gold in the game of RuneScape.

Now, if Lakeman had played RuneScape, defeated 68 players, and lifted 705 billion Gold off their dead corpses (which you can totally do in RuneScape), that would be fine. That’s just… playing the game. As has been said to me many times, while my character is lying dead, “Git gud, scrub.”

***

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Voting rights and pro-democracy advocates are in a precarious position. If they speak loudly and frankly about Donald Trump and the Republican Party’s plans to suppress, manipulate, or outright “steal” the upcoming midterm election, they risk depressing the very people who must be counted on to show up and vote. They risk making people feel like their votes will not matter because “the fix is already in.” They get called a “doomer” by Pollyanna Democrats on social media, and “hysterical” by Republicans. And since the single best solution to the threat of voter suppression is overwhelming turnout, depression and doom, even in the name of truth, ends up helping Trump’s forces.

But: to ignore the threat posed by Trump, to pretend like everything is going to be okay, to assume that upstanding members of the courts will rise to prevent the theft of the election is to stick your head in the sand. Trump and the Republicans have no intention of letting the upcoming midterms (in which Republicans are predicted to lose control of the House) proceed fairly. They’re attacking the election through legislative, law-enforcement, and political means.

The most obvious threat is the legislation Republicans keep introducing. Republicans in the House have already passed the Safeguard American Voter Eligibility Act (SAVE Act). The bill radically reshapes the voter registration process by essentially repealing the Motor Voter Act. Instead of allowing people to register with a driver’s license, the SAVE Act requires them to show additional identification, like a passport or a birth certificate, in order to register. The Economic Times estimates that at least 21 million eligible voters may not be able to provide this extra information. The people most likely to struggle with the new requirements are the usual suspects—people of color, young people, and poor people—but there’s an additional group that could easily be prevented from voting should this bill become a law: married women who have changed their name. Those women likely do not have a birth certificate with their new marital name, and if they also don’t have an updated passport with their married name, they could be denied their right to vote.

And that’s not all the SAVE Act does. The act requires regular “purges” of voting rolls, so people who don’t vote every election cycle—who, say, vote only every four years, during a presidential election—might suddenly find that they’ve been de-registered. The bill also authorizes the prosecution and jailing of election workers who help people who don’t have proof of citizenship to register.

The SAVE Act is unlikely to survive a Senate filibuster. Senate minority leader Chuck Schumer said that the Act is “Jim Crow 2.0,” but relying on Schumer and Senate Democrats to hold their nerve is like relying on a puppy to hold its pee until you get home. Should the Democrats actually stand up long enough to filibuster the SAVE Act, Republicans are already making noises about killing the filibuster to pass it.

The SAVE Act isn’t even the most dangerous thing Republicans in Congress have cooked up. That dubious honor belongs to the Make Elections Great Again Act (MEGA Act), so named because these people are obviously in a cult. The MEGA Act includes all of the same requirements to register to vote as the SAVE Act, but also requires these new forms of identification to be shown by voters when they try to cast their ballots. And: The MEGA act ends universal mail-in balloting and eliminates the grace period that allows ballots that are mailed by Election Day to be counted.

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Most important, the MEGA Act calls for the creation of a federal voter-registration database, superseding state voter-registration rolls. This would mean federal control of elections, which is a power traditionally reserved for the states. Now, I’ve long advocated for a federalized approach to elections: Having 50 different states with 50 different rules is no way to run a national election. But I have been repeatedly told, by Republicans, that such ideas are patently unconstitutional. I guess it’s unconstitutional to federalize elections to make them more fair and less confusing, but perfectly constitutional to federalize elections to make them more racist and less democratic.

The MEGA Act hasn’t passed the House yet, and if it does it will likely meet the same Democrat-led filibuster in the Senate as the SAVE Act will. But some Republicans are talking about attaching these new voter restrictions to the omnibus appropriations bill that is needed to fund the government. Will Democrats hold the line if protecting voting rights means shutting down the government? I dunno, Lucy, we’ll see if Charlie Brown is able to kick the football this time.

All of this would be bad enough, but Republicans aren’t just hoping for legislation that will allow them to suppress the vote in 2026. They’re also putting in place the legal ability to steal the votes that get through these gauntlets. Last week, the FBI raided the Fulton County elections operations center, which covers Atlanta, looking for 2020 ballots. The action was a result of Trump’s ongoing lie that he won Georgia in 2020. (As a reminder, Trump is on tape asking Georgia election officials to steal that election for him).

If the FBI can seize old, 2020 ballots in the name of fishing for “election fraud,” it’s not hard to imagine them seizing ballots and voting machines trying to stop “fraud” in 2026. Attorney General Pam Bondi has also appointed, essentially, a “special counsel,” Thomas Albus, and given him the authority to seize ballots. Lawyer Marc Elias summed it up this way: “DOJ’s legal machinery to subvert the 2026 election is already in place.”

And then there’s the existential elephant in the room. Trump recently said: “We should take over the voting, the voting in at least many—15 places. The Republicans ought to nationalize the voting.” The news media can sane-wash what Trump means by that as much as it wants, but we know that Trump has already deployed armed goons across the country to violate people’s rights. Trump’s id, Steve Bannon, said on Tuesday: “We’re going to have ICE surround the polls come November.”

Who knows what kind of ICE presence we’ll see on Election Day? Who knows how much violence they’ll use to keep people from voting? But you’d be a rank fool to think the answers to those questions are “nothing” and “none.”

All of this points to a rigged midterm election that will be outright stolen if the rigging doesn’t produce results pleasing to the tin-pot dictator in charge of our country.

So what do we do about it?

I don’t have a great answer to that question, but I know the answer starts with a nationalized response from the opposition party. Trump’s forces are attacking 50 different election systems by means of a coordinated campaign run out of Mar-a-Lago, while the Democrats are leaving state parties and concerned lawyers to fight a rearguard action of whack-a-mole. That won’t work. Trump doesn’t have to steal every election; he just has to steal enough. We can’t be in a situation where Minnesota knows what to do, but Pennsylvania doesn’t. We can’t be in a situation where California is able to run a normal election because it has a Democratic governor, but Georgia cannot because it has a Republican one.

So, as a start, my first suggestion is for Democrats to tap a shadow “elections czar.” A leader who has the respect of Democratic elected officials in Washington and in the states, and whose only job is to coordinate national Democratic opposition to these voter suppression tactics. Yes, this job theoretically exists already in the form of Democratic National Committee chairman Ken Martin, but (and I’m going out of my way to be kind to Martin) his job is to win elections, not protect them.

I also know that many Democrats like to tell themselves that Marc Elias already serves this function. Elias is vital, but he’s not some kind of electoral fairy godmother who’s looking out for Democrats so they don’t have to worry and can sleep easily at night. Elias is an attorney who works in the trenches trying to hold the legal line against these unlawful Trumpian maneuvers. He can’t “save democracy” by himself.

The Democrats need a leader—someone who can get Schumer and Jeffries and Abigail Spanberger and Kathy Hochul and all the rest of them on a Zoom and tell them exactly what they need to do. They need a person who can call up Elias and say, “I need you in Georgia filing this lawsuit” and then call up Janai Nelson, of the NAACP Legal Defense Fund, and say, “I need you in Milwaukee.” They need someone who can go on social media and say, “The press conference is on Tuesday and all our governors will be there. I’d watch.” We need a coordinated response to these coordinated attacks.

My imagined elections czar would also be able to serve as the designated spokesperson for the cause. Let’s all just agree that Schumer has not been the best communicator for this moment. Let’s all just stipulate to the fact that Democrats in Washington have not had the kind of singular focus on protecting our elections that one might expect them to have—out of a sense of self-preservation, if nothing else. We need a person who can give the official quote to The New York Times and go on all the shows and serve as a human alarm bell on this issue, without also having to talk about tariffs or affordability or the Epstein files or whatever Trump’s latest distraction happens to be.

I don’t know who this person should be. There are people with big names whom the media would notice but have no pull inside the party—and there are people with a strong inside game who don’t have the vision to pull it all together. But the Democratic leadership needs to get together and name a champion—and then listen to them.

That’s the hierarchical approach.

At the grassroots, we need to be building the street-level infrastructure to monitor or confront ICE or any other goons Trump unleashes on Election Day. We’ve seen how people have come together in Minneapolis, Portland, Chicago, and elsewhere. We’ve seen the energy of the No Kings protests, just waiting to be tapped. These dedicated people need to be converted into election monitors. Trump is building his election-stealing army; we need to build our counterforce of election protectors.

Some of this is already happening. People like Elias and Nelson know what they’re doing, and activists on the ground are trying to convert protesters into protectors. But, we need more, and we need it now.

They are coming for the election. That is obvious. What we are doing to stop them needs to be just as obvious.

And that’s how you fight despair. That’s how you counteract doom. The threats to the upcoming election are real. They cannot be and should not be understated. But you can’t help people defend their rights by ignoring the obvious. You help people, and our democracy, by joining the battle.

The Department of Justice arrested two journalists, Don Lemon, and Georgia Fort, in connection with their coverage of a protest that took place inside a church in St. Paul, Minnesota on January 18. The DOJ also arrested two activists, Trahern Jeen Crews and Jamael Lydell Lundy, for their role in the protest. All four of the people arrested are Black.

The arrests of the two journalists are clearly unconstitutional. You don’t need to be a legal scholar to know that arresting journalists for covering the news is a clear violation of the First Amendment. Lemon’s arrest is also flatly illegal. Last week, the Trump administration went to a federal magistrate judge, Douglas L. Micko, to ask for an arrest warrant for Lemon. The judge refused. The Trump administration then appealed and lost that appeal. The legal system literally said the government couldn’t arrest Lemon, but the government arrested him anyway, and they went all the way to Los Angeles (far from Minnesota) to get him.

Georgia Fort is a prominent Black journalist based in Minnesota. She was out front in covering the George Floyd protests, and expertly covered the trial of his killer, Derek Chauvin. I have little doubt that this prior reporting is among the reasons she was targeted by the Trump administration.

I know less about the activists: Crews is a cofounder of Black Lives Matter Minnesota, while Lundy works in the Hennepin County Attorney’s office and recently announced his candidacy for the Minnesota state Senate. I also know that arresting people for protesting is a violation of the First Amendment.

In her tweet proclaiming the arrests, Attorney General Pam Bondi said that the four were arrested “at my direction.” Later reports suggested that the DOJ empaneled a federal grand jury that issued the arrest warrants for Lemon and Fort, but didn’t explain the cause for arresting Crews and Lundy. Going to a grand jury to get an arrest warrant that a judge and appeals court previously denied on constitutional grounds is highly unusual in a democracy, but I guess it’s how the fascists play the game.

I expect, at a minimum, that the arrests of Lemon and Fort will be thrown out in court eventually, since at least one of them already has been. I think the more important question is why all four of these Black people were arrested. To answer that question, we should start with the White House’s official tweet about Lemon’s arrest. They tweeted out: “When life gives you lemons…” followed by a chain emoji. This ties the arrest of Lemon to this country’s history of slavery in a way no sane person will miss.

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May 2026 Issue

The arrest of Lemon harks back to a discarded portion of our original Constitution: the Fugitive Slave Clause. That clause read: “No Person held to Service or Labour in one State, under the Laws thereof, escaping into another, shall, in Consequence of any Law or Regulation therein, be discharged from such Service or Labour, but shall be delivered up on Claim of the Party to whom such Service or Labour may be due.” It’s relevant because the Fugitive Slave Clause counteracted a different amendment in the Constitution, the 10th, which explicitly reserves all “police power” to the states.

To put it simply, the 10th Amendment says that states are in charge of deciding whom they need to arrest, but the Fugitive Slave Clause says the federal government can violate the 10th Amendment—if they need to capture Black people. Fundamentally, that is what’s happened to Lemon. The federal government has superseded the constitutional authority of Minnesota so that it can arrest a Black man who got away. And we know that’s how they’re thinking, because they’re using literal chain emojis to congratulate themselves on their accomplishment.

What we’re seeing is an obvious attempt to change the face of the victims of Trump’s fascism. I believe the Trump administration always assumed that the people on the front lines of the resistance to their tactics would be Black and brown. They assumed that the people who would be getting brutalized in the streets and shot and killed would be people of color. They did not assume that the victim of their brutality would be a white man who was a nurse for veterans. They did not assume it would be a white woman with children’s plushies in her glove compartment.

Arresting Black journalists and activists, and using explicit slavery imagery while doing it, is an attempt to inflame the Black community and remind white folks who the real targets are. Support for ICE and the Trump administration generally is falling among white folks. Trump wants to remind those white folks that he’s really just trying to arrest dangerous Black people.

Trump and Steven Miller want a race war. They think they’ll win it. They think white people will tune in for it. Their operating theory is that most white people are viciously racist, like they are, and that most whites secretly pine to live in apartheid South Africa.

I don’t think they’re right—and I say that as a person who is not known to have a particularly high opinion of the moral clarity of white Americans. My read has always been that most white people in this country are like most people who eat meat in this country: they want to enjoy a good steak, but they don’t want to go to a slaughterhouse and put a bolt gun in a cow. White people enjoy their privilege, but they don’t exactly want to see how their privilege gets made.

Arresting a journalist like Lemon—who is not only “Black famous” like Fort is but crossover famous among white folks—is as likely to inflame the white community as it is to inflame the Black community. Lemon got arrested last night while covering the Grammys, of all things, not the Image Awards.

The arrests of the journalists cannot hold up legally. (The arrests of the activists shouldn’t hold up legally either, as Bondi is claiming the activist violated the First Amendment rights of churchgoers while Bondi is violating the First Amendment rights of protesters.) It is a shredding of the First Amendment that I don’t think even Trump’s plants on the Supreme Court can stand for (except for Clarence Thomas, who is probably titillated about the opportunity to use the Fugitive Slave Clause as the basis for his dissenting opinion from the more sane members of the court). I also don’t think the arrests will hold up socially. I don’t think they will change the narrative in the way Trump and Miller probably hope it will.

Of course, the road to bad takes is paved with a reliance on white people to do the right thing. I don’t think this will work, legally or culturally, but I’ll need white people to prove me right.

People are finally beginning to call for other countries to boycott Donald Trump’s upcoming World Cup—and not just usual suspects like me and The Nation’s Dave Zirin. Oke Göttlich, a powerful German soccer administrator, said that, in the wake of the execution of Alex Pretti in Minnesota, the time has come to talk seriously about boycotting the tournament. Sepp Blatter, the former head of FIFA (the international governing committee of global soccer) suggested that fans shouldn’t travel to the tournament because of rising safety concerns in the United States.

This is going to sound weird to non–sports fans, but boycotting the World Cup is one of the most significant sanctions members of the international community can take against the United States right now. The World Cup is the most watched sporting event in the world. The US has been begging to host a tournament for decades. This World Cup, which runs from early June through mid-July, is a perfect opportunity for the world to stand against this country’s fascist regime.

Indeed, the fates have aligned to make this World Cup the perfect one to make a statement—for two reasons. The first is that more countries are involved: The tournament has expanded to 48 teams this year, up from 32 in previous years, which means that more people than ever will be involved in the proceedings—and possible protests. The second reason is that those 48 countries wouldn’t actually have to boycott the entire World Cup, because this year’s tournament is also being hosted by two other countries—Canada and Mexico. Teams could refuse to play in the US while happily playing in Canada or Mexico. It would be a powerful statement.

That statement won’t come from FIFA, however. FIFA is one of the most corrupt organizations in the entire world, and its current president, Gianni Infantino, was last seen licking Trump’s boots and handing him a “peace prize.” Nor is it likely to come from the powerful soccer-playing countries in Western Europe. If France, Germany, and Great Britain were to pull out of the US portions of the tournament, many other countries would follow—but, sadly, the leaders of those nations appear eager to play Neville Chamberlain to Trump’s Hitler.

Teams from Africa, the Middle East, and Asia could take a moral stand, but there are complications. Some of the teams involved are also run by repressive authoritarians. Others are financially dependent on FIFA and the World Cup to fund their soccer federations, while still others have entire economies beholden to the United States. On the other hand, a lot of those countries damn well know that if they did what the US is doing, they’d be boycotted and sanctioned and probably invaded by white people promising to restore “freedom” in exchange for all their oil and minerals. So it’s at least possible that some of them could take a moral stand. South Africa is in the tournament, and South Africa knows how to handle white people like Elon Musk.

A boycott by all or some of the South American teams would make the whole tournament a joke. We know that the defending World Cup champion, Argentina, with its fascist-curious Trump-puppet president will show up (as will Ecuador, whose president is also friendly with our reigning despot), but some of the other nations that made the field—Brazil, Colombia, and Uruguay—could be a different story. Their fans arguably face a real risk if they attend the matches. Could an American fan of, say, Colombia even go to a game without fear of being detained and deported by ICE, regardless of their actual citizenship status? Would a fan of Brazil feel safe traveling to the United States? The US is a clear and present danger to those people. If these soccer federations think about their fans, and the fact that their fans could be targeted by racist DHS agents, they might be convinced to do the right thing and boycott the US portions of the tournament.

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May 2026 Issue

The United States is an international pariah. It should be treated like one. Boycotting the World Cup is the obvious place to start.

The Bad and the Ugly

• Republicans in Congress have proposed a new anti-voting bill, dubbed the “Make Elections Great Again Act,” because they’re all in a cult. This one is the most dangerous attack on voting rights yet. In addition to all of the Republicans’ usual voter suppression tricks (voter ID, ending universal mail-in ballots), the bill authorizes the federal government to purge state voter registration rolls. I’ve been told my whole life, by Republicans, that nationalizing federal elections violates state’s rights and the Constitution. But apparently it’s OK if the goal is to keep people from voting.
• The family of a Venezuelan fisherman killed in one of Trump’s illegal boat strikes has filed a wrongful death lawsuit in the United States.
• The Supreme Court agreed to take up a major immigration case that will answer the question of whether ICE and CBP are allowed to reject the presumption of innocence for legal permanent residents. The facts of the case are a little complicated, but it essentially boils down to whether criminal charges (as opposed to a criminal conviction) can be used as a reason to deport a legal permanent resident. I’m sure alleged attempted rapist Brett Kavanaugh will say that the presumption of innocence does not apply to non-white people in this country.
• I regret to inform you that Texas Attorney General Ken Paxton still exists, and he’s still suing doctors outside of Texas who provide abortion pills to people inside the state. I know it feels like “old news,” especially in the wake of all the murders in Minnesota, but women do not have to be shot in the face to lose their rights.
• RFK Jr. and the MAHA movement seem particularly dedicated to bringing back measles—and their efforts are really paying off: South Carolina is experiencing the largest measles outbreak since the disease was “eradicated.” If we had a functioning press corps, RFK Jr. would not be able to enjoy a nice meal of bear meat without having to answer for this.

Inspired Takes

• Adam Serwer was on the ground in Minnesota and issued a beautiful report on how the people are feeling, organizing, and resisting.
• I haven’t fully explored the hypocrisy of how this country treats white protests versus Black protests. But Michael Harriot has. His piece is what I’m actually talking about with my Black friends, when white people aren’t listening.
• That said, when white people are listening, I support The Nation’s nomination of the city of Minneapolis for the Nobel Peace Prize.
• The indispensable Radley Balko wrote a piece comparing the resistance in Minneapolis to the resistance in… Lexington ahead of the revolutionary war. It’s a hell of a parallel.

Worst Argument of the Week

The New York Times released a video that purports to show an altercation between ICE and Alex Pretti a week before his murder. The video shows Pretti smashing the taillight of an ICE vehicle before the agents beat him up.

The Times (and right-wing cultists) seems to think this video proves that Pretti was a violent man who deserved to be executed without trial. Nicholas Bogel-Burroughs, who wrote the story for the Times, played the role of ICE water-carrier when he wrote, “The footage adds to what is known about the 37-year-old nurse.”

No, you fascist-sympathizing fuck, the footage adds to what we know about ICE. In a court of law, that footage could be evidence of the motive behind ICE’s murder of that man. It could be evidence of premeditation. It potentially shows that Pretti was targeted by ICE for retribution and death. If federal agents had a preexisting “beef” with Pretti, if Pretti were known to people in the field and then they killed him, that’s compelling evidence that the killing was intentional.

It is common in our media to prosecute the victim. That’s what the Times (and Fox and the whole right-wing media echosphere) is trying to do now. But the people who should be on trial here are ICE. You show me a video where violent individuals had a prior altercation with a man, and then days later that man ends up getting shot in the back of the head, and I’m going to tell you that video is evidence of premeditated murder in the first degree.

Perhaps I should tell The New York Times “thank you.” In their effort to smear Pretti, they may have just aggravated the charges against his murderers.

What I Wrote

I wrote about how Trump flinched in Minnesota, and that shows that the people are more powerful than the law or the opposition party ever will be.

In News Unrelated to the Current Chaos

Let me be clear, I do not want another social media platform. I can’t handle it. You young people have no idea how hard it is to keep switching up platforms. I’m old, so very old. I can barely frost the thermoplastic polyurethane on my screen protector.

That said, I will probably sign up for UpScrolled. UpScrolled is the new competitor to TikTok that has been surging in popularity since TikTok’s US operations were formally taken over by Trump-adjacent business interests this week. It was created by Issam Hijazi, whom Al Jazeera describes as a “Palestinian-Jordanian-Australian entrepreneur.” That’s a pretty big demographic contrast to Larry Ellison, the Benjamin Netanyahu buddy (and, you know, founder of Oracle and one of the three richest people alive) who acquired a large stake in TikTok once it was forced into US hands.

TikTok users are (rightly) worried about censorship on the new TikTok, and a silencing of any views that don’t support fascism and genocide. It’s a valid concern, considering what Elon Musk has done to Twitter. UpScrolled is to TikTok as BlueSky is to Twitter, or so the story goes.

So I’ll probably join. But I really don’t want to. I don’t want to join anything else. Goddamnit, I miss my Tumblr account.

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If you enjoyed this installment of Elie v. U.S., click here to receive the newsletter in your inbox each Friday.

Most people where I come from know the opening narration to the television show Law and Order by heart: “In the criminal justice system, the people are represented by two separate yet equally important groups: the police who investigate crime and the district attorneys who prosecute the offenders. These are their stories. [Ding-ding].” But what happens when federal terrorists masquerading as law enforcement are the ones committing the crimes, and the district attorneys and judges are ignored by the federal government?

In Minneapolis–St. Paul, we are getting our answer: The people are taking matters into their own hands and representing themselves. “People v. ICE” would be the heading on a criminal charge brought against the American storm troopers. The People versus ICE is what we’re seeing in the streets.

For the record, there have been actual lawsuits—lots of them—in response to the ICE operation known as “Operation Metro Surge.” State Attorney General Keith Ellison filed one to halt ICE’s occupation of the Twin Cities, and it received a hearing earlier this week. In a separate lawsuit, Chief District Court Judge Patrick J. Schiltz ordered the acting ICE director, Todd Lyons, to appear in his courtroom and answer for the unlawful arrests and detentions carried out by ICE, in violation of the right to due process. The ACLU and the International Refugee Assistance Program have filed class actions against ICE over its illegal deportations and kidnappings. And numerous individual Minnesotans have filed lawsuits over the illegal harassment and brutality they’ve faced at the hands of ICE.

These lawsuits are all worthy and necessary—if nothing else, they remind us of what our rights should be. But none of them have stopped or even restrained ICE. None of them have scared the Trump administration into putting down their copies of Mein Kampf long enough to read the Constitution. And none of them have turned public sentiment against ICE or motivated the Democrats to take hard stances against Trump’s unlawful occupation of Minneapolis.

What has mattered is the people. The people are leading—as we see when they show up to protest peacefully in freezing temperatures against the ongoing occupation of their state. The people are helping—as we see when they walk neighbors’ children to school so their parents don’t have to risk abduction at the hands of ICE. The people are dying—as we see when they try to offer support and comfort to their fellow protesters who have been brutalized by ICE. The people are doing what the law cannot: defending their rights and the rights of others. And, unlike the lawyers and judges and politicians, the people are willing to risk their lives doing it.

That has made all the difference. Trump is now backtracking (and backing up the bus over Homeland Security cosplayer Kristi Noem) in a way we’ve never seen before. Democrats, belatedly, are starting to get a clue, not because they’ve finally realized they’re on the correct moral and legal side of the issue, but because the people will accept nothing less. Trump is starting to look for a way out of Minnesota, not because of the strength of the opposition party or the numerous legal challenges to his government, but because the people have made it impossible to ignore their cause.

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What’s happening in Minnesota is not some kind of weird inversion of the normal order of things. It’s not strange that the people are ahead of the law. This is usually how change happens: The law is a lagging indicator of social justice. The law is not now nor ever has been a leader in reversing fascism, authoritarianism, or atrocity. Movements start in the streets and later, often years later, the law tries to catch up and codify what movements have already made a reality. We celebrate legal and legislative victories—like Brown v. Board of Education or the Civil Rights Act—as bloodless acts of social change, but we forget that these victories are not possible without the toil and blood of people who take to the streets, willing to risk it all for progress and justice.

Should Trump lose any of the myriad lawsuits he faces in Minnesota—and should he actually follow court orders against him—it will be, at least in part, because of the people. Yes, the cases are strong. But we like to act like judges are immune from public pressure (the theory behind lifetime appointments is to inculcate judges from that pressure). They are not. Judges can see and respond to the way the wind is blowing, just like everybody else. When ordering acting director Lyons to appear in his courtroom, Judge Schultz acknowledged that his request was “extraordinary,” but also said that “the extent of ICE’s violation of court orders is likewise extraordinary”—adding, “The court’s patience is at an end.”

Would Judge Schultz have reached this unprecedented point without the desperate resistance of the people of Minneapolis? I doubt it. And while it is easy for me to predict that Trump will not make Lyons go to Minnesota and answer for ICE’s action, there’s more of a chance of that happening now than there would have been if all we had were a court order and another strongly worded letter from Democrats.

Don’t get me wrong: The cost to the people is high. People are dead. Children have been kidnapped. Lives and livelihoods have been destroyed. Victory has not been achieved. Yes, Trump is moving Greg Bovino out, but he’s moving Tom Homan in. (I saw a person on social media say replacing Bovino with Homan “is like shitting your pants and changing your shirt.”) Trump flinched in Minnesota, but when Stephen Miller wakes up tonight and crawls out of his casket, he will surely advise Trump to “double down” on evil. The Battle of Minneapolis is far from over.

But, if I may quote the otherwise forgettable Iron Man 2: “If you could make God bleed, the people would cease to believe in Him.” Minneapolis made ICE bleed—not physically, of course: ICE does all the violence at protests—but politically. Other cities have resisted ICE, but Minneapolis is showing that resistance can produce change. Its people are showing that Trump and ICE are not inevitable. They’re showing that peaceful yet sustained and uncompromising resistance to the Trump administration can force the Trump administration back on its heel. They’re showing that we don’t have to wait for a court order, a midterm election, or a blocked artery to change the calculations of the fascists in power. We can, right now, start to take the power back from these people, and nobody needs to get permission from John Roberts or Chuck Schumer.

It’s an illustration that, I think, people cannot unsee. ICE’s tactics are always the same: terrorize, abduct, murder. Resistance tactics are constantly evolving. People saw what methods of resistance worked in previous ICE attacks in Los Angeles and Portland, and have applied what they learned in Minneapolis. Next, people will use Minneapolis as a blueprint for how to do things wherever ICE strikes next. The George Floyd protests also started in Minnesota. Do you remember what happened when those protests hit Philadelphia? Let me tell you, ICE does not want any part of Philly. They’ve got a long winter and no Super Bowl to celebrate.

I haven’t yet mentioned that many of the people on the front lines of the Minnesota resistance are white, and I should (because I certainly would if white people were nowhere to be found). Regular readers might assume that I have a long rant about this country’s racial politics and how it reacts to the murder of innocent whites entirely differently than it reacts to the destruction of similarly situated innocent Black people… and I do, but I’m compartmentalizing that issue in my own head for the moment. That’s because I know that when white people in this country stop waiting for the law to come to save them, and instead take to the streets, it’s an accelerant for social change.

During the height of the George Floyd protests, I (correctly) predicted that white folks would soon lose interest and frustrate any chance for lasting change, despite the outcry from Black and brown folks for police reform. The fact that white folks are out front in Minnesota, as opposed to offering the tepid “allyship” that typically doesn’t last through tax season, makes these protests different. White folks generally feel entitled to tell everybody else how long they have to endure oppression, and their answer is usually “longer,” but when white people are the ones being oppressed, they have the power to demand immediate redress.

That is what we’re seeing now. Anti-ICE protests have wrapped in white folks who “don’t like to talk about politics” and have the wealth and privilege to ignore the suffering of others if they choose to. Support for ICE has collapsed among white folks, including whites without a college education. White folks no longer have the political power to make something happen all by themselves (a point that sticks in the craw of Trump and MAGA), but when a majority of whites get to where Black people always are, this country can change rapidly. ICE could survive murdering brown people. It can’t survive murdering white people. That’s a sad commentary on America, but it’s also reality.

I’ve said repeatedly that the law cannot save us from Trump and his MAGA goons. Even in Minnesota, that is still the case. The law has failed to stop the kidnappings and murders. But we can save us. We can make them stop.

ICE can defeat feckless Democrats. It can defeat the Constitution. But it cannot defeat the people. The People versus ICE is the one battle ICE cannot win, and even Trump is starting to figure that out.

Earlier this week, the Trump administration attempted to prosecute journalist Don Lemon for his coverage of protests inside a Minneapolis church. The protesters had flooded the church to call for the resignation of pastor David Easterwood, who allegedly works for ICE. But on Thursday, a federal magistrate in Minnesota rejected the criminal complaint filed by the Department of Justice—a ruling that allegedly “enraged” Attorney General Pam Bondi.

Two activists, Nekima Levy Armstrong and Chauntyll Louisa Allen, have been arrested by the FBI in connection with the protest.

There has been a lot of naysaying about these protests, especially from “Never Trumpers.” Even as people are coalescing around the idea that ICE needs to be stopped, the sight of people protesting inside a church has given the moderates an opportunity to appear, well, moderate about the methods for dispelling ICE.

I am not the protest police, but I will say that there are good First Amendment reasons to protect the sanctity of houses of worship. Protecting people from being harassed while they are inside their places of worship is the legally right thing to do to protect people’s free exercise of religion, even if we think the people worshiping are misguided or even evil in some way. Protesting outside of a person’s church (or house) is great. Protesting inside a person’s sanctuary is violative, and unnecessarily so.

I’ll also point out that ICE regularly violates those sanctuaries, and that protecting people from government interference in their places of worship is even more important than protecting people from private actions.

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There are even stronger First Amendment–based reasons to protect the right of journalists to cover such protests. Trying to charge Lemon for covering protests inside a church is the greater attack on the First Amendment.

I’ve seen a lot of hand-wringing from online moderates over the protests inside the church. I haven’t seen enough outrage over the state harassment of a journalist like Lemon for covering the thing that alerted all the moderates to get their underwear in a bunch. I think if you are more concerned about private acts of resistance than state acts of totalitarianism, you are doing it wrong.

The Bad and the Ugly

• The Department of Justice isn’t limiting its harassment to individual activists. The DOJ served subpoenas to Minnesota Governor Tim Walz and Minneapolis Mayor Jacob Frey as part of its “investigation” into official resistance to Trump’s fascist policies.
• Of course, activists, journalists, and elected officials have a lot of options to defend themselves. You know who doesn’t? Little kids. This week ICE detained four Minneapolis schoolchildren. Including a 5-year-old. There are people who don’t like it when I call ICE “evil.” Those people are wrong.
• Even the people who have supported ICE in the past might be starting to realize the evil they’ve been a part of. A new poll shows that a majority of white people with no college education now disapprove of ICE. I’m not too excited by that news: Disapproving of ICE is far different from changing their fascist voting patterns and their rejoining the community of decent folks. But it’s something.
• Last week, the FBI seized documents from the home of a Washington Post reporter, in a direct attack on the First Amendment. This week, a magistrate judge prevented the feds from looking at the documents they seized. I’m pretty sure Kash Patel or whoever has already looked at all the illegally seized documents. But it’s something.
• A California bill proposes to ban local police officers from taking a second job with ICE. Some of those that work forces, are the same that burn crosses.

Inspired Takes

• I haven’t covered the Trump versus Europe fight over Greenland at Davos (except satirically) because billionaire assholes fighting over melting glaciers where 50,000 people make their home is just too much whiteness for me at this stage of my life. The Nation’s Chris Lehmann has you covered though.
• The Nation’s Peter Kornbluh asks, “Is Cuba Next?” A Bay of Pigs II seems like a weird thing to risk, but the Trump administration has doomed us to endlessly relitigating everything that’s happened since 1865.
• I myself try to stay focused on the future. In this piece, Alan Elrod makes an argument I’ve been making since Joe Biden took office: There is no going back to a pre-Trump world. No restoration of the old norms is possible. Trump has done too much damage and shown decisively that our institutions are not designed to stop him or anybody else who wishes to continue what he’s done.

Worst Argument of the Week

To understand this week’s worst argument, you need to take a moment to appreciate the very best argument, which was made by the state of Hawaii. In 2022’s New York State Rifle & Pistol Association v. Bruen, the Supreme Court eviscerated gun regulations in this country. The court announced that for a gun law to exist in the modern era, it had to have some historical analogue to a gun law that existed at or before the founding of the country. To regulate an Uzi, you have to show that a “historical twin” regulation applied to a musket.

The rule is beyond stupid as an intellectual proposition, but it’s also practically unworkable. What is a close enough “historical analogue”? Nobody knows. Since Bruen, the Supreme Court has been trying to make it up as it goes along.

Well, Hawaii looked at all that chaos and said “challenge accepted.” The state passed a gun law specifically designed to either meet Bruen’s preposterous criteria or, ultimately, expose the court’s deep hypocrisy when applying Bruen. The law requires gun owners to receive explicit permission from property owners before they can bring their weapons onto private property. It’s been dubbed the “vampire rule,” based on the trope that vampires need to receive permission before entering your home.

According to the Supreme Court’s own logic in Bruen, Hawaii’s law should be upheld. The state can cite historical analogues for its rules that go well beyond Nosferatu. In 1763 and 1771, New York and New Jersey respectively imposed similar restrictions.

And yet, the law isn’t going to hold (here’s where we get to the “worst” argument part). As Ian Millhiser explains, “[I]t turns out that none of this history actually matters, as all six of the Court’s Republicans…signaled Tuesday that they are likely to strike the law down.”

To accomplish this hypocrisy, the core Republican argument was that the Second Amendment should be treated like any other constitutional right, and the government cannot essentially enact a prior restraint on constitutional rights. But that argument that the Second Amendment should be treated like any other amendment fails the Republicans’ own requirements, laid out in Bruen, that the Second Amendment is so super special that modern regulations must be tied to a specific historically analogous law before it can be enacted. No other constitutional amendment gets that protection. If the Second Amendment is to be treated like every other one, then the entire logic of Bruen should fall apart.

But the Republicans on the Supreme Court want it both ways, and since they have a supermajority, they will have it both ways. When a gun regulation doesn’t have a doppelgänger from the 18th freaking century, Republicans will strike down the law because the Second Amendment allegedly means the same thing now as it did then. When a gun regulation does have a doppelgänger from the 18th century, the Republicans will strike down the law because the Second Amendment magically means something different now from what it meant then.

The only true way to track the Republicans’ logic on the Second Amendment is to ask the question: “Will this lead to people being shot to death?” If yes, the Republicans on the Supreme Court are in favor of it.

What I Wrote

The Supreme Court also heard oral arguments this week in Trump v. Cook, the case concerning Trump’s attempts to fire Fed Reserve Board Commissioner Lisa Cook. Most likely, this will go down as a rare loss for Trump in front of his court. Why? I explain that it’s all about the money. 

In News Unrelated to the Current Chaos

Apparently, it’s going to snow this weekend. A lot. Pretty much everywhere (no, not you, San Diego. You people will continue to enjoy your perfect weather… until the earth swallows you whole).

Snowstorms, and weather events in general, really highlight the isolation of the modern human condition. We don’t come together ahead of these things; we go to ground. Before Trump came to the White House, I was pretty sure that the nadir of American culture could be witnessed at a Costco 24 hours before a snowstorm or hurricane.

I can’t even say the hoarding mentality is wrong, or at least I can’t say that it’s irrational, because the other thing weather events do is highlight how desperately most people rely on government services. If the government doesn’t clear the roads, people can’t get to work, including the people whose jobs are to keep all the other services and infrastructure up and running.

I’m relatively privileged, but this week a small part broke in my furnace, and I was without heat for 24 hours. I was able to get it fixed but, if that had happened during the snowstorm… nobody could come to fix my problem if the city didn’t plow the roads. I need the government to function so I can even access my privilege, and I need it to function the most when things are all screwed up.

But that’s the thing about government: When it’s working, most people don’t notice it. When it’s not working, people sure as shit notice it, but most people don’t carry that knowledge through Election Day. Accountability rarely follows disaster. Last July, a rainstorm killed 27 campers and counselors at Camp Mystic in Texas; none of the politicians responsible, including Texas Governor Gregg Abbott, has paid a price for the inaction. But a couple of people have been fired from their jobs for making inappropriate social media posts after the tragedy.

Of course, I’ve just explained the fundamentally asymmetrical battle Democrats have to fight every day. Republicans say government doesn’t work, then they make government not work. Then when government doesn’t work people say, “See, government doesn’t work” and vote for Republicans. Democrats say government can work, and when they make it work… nobody notices or cares. 

Bottom line: If New York City handles the snowstorm well, I want Zorhan Mamdani doing an ad with a snow shovel saying, “you’re welcome.” Lord knows he’ll be blamed if things don’t go well, even though he hasn’t been on the job long enough to reform New York’s snow preparedness system.

Stay safe, and warm, this weekend. And if things go well or go to shit, try to remember why.

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If you enjoyed this installment of Elie v. U.S., click here to receive the newsletter in your inbox each Friday.

The Supreme Court heard oral arguments on Wednesday in Trump v. Cook, a case that centers on Donald Trump’s illegal attempt to fire Federal Reserve Board commissioner Lisa Cook. The legal arguments should be familiar to anyone who has been watching Trump’s authoritarian takeover of the federal government: Trump claims he has the authority to fire anybody he wants; Cook argues “that’s not how it works, that’s not how any of this works.”

Over the past year, the Supreme Court has generally been game to allow Trump to fire whomever he wants. The court says Trump is entitled to this power under the “Unitary Executive Theory,” a fringe theory that was made up by Republican academics to justify dismantling the regulatory state and that has been adopted by Supreme Court Republicans over the past few years. The theory reimagines every independent agency created by Congress as part of Trump’s personal fiefdom. Based on this view, the Supreme Court has allowed Trump to fire members of the National Labor Relations Board (see Trump v. Wilcox); and it will likely allow him to fire commissioners from the Federal Trade Commission (see Trump v. Slaughter. If the theory holds, Trump should be able to fire Cook.

But here’s the benefit of using a made-up thing like Unitary Executive Theory: The Republicans on the court can make it do whatever they want it to do. While Trump has been busy waving his magic wand and shouting “unitarium executatus!” at the Fed, he’s failed to grasp that the Supreme Court is the author of the entire book of spells. The court can make the spell fizzle out whenever it wants.

Unlike the NLRB and the FTC, Republicans on the court like the Fed. They like its independence. They like what it does. Since Unitary Executive Theory did not exist as a practical thing until Trump decided to take away the independence of all the executive agencies Republicans don’t like, it’s very easy for the Republican justices to say that Unitary Executive Theory doesn’t exist when it comes to the one independent agency they actually care about.

Indeed, Chief Justice John Roberts laid the groundwork for granting the Fed a made-up cloak of protection during the Trump v. Wilcox arguments, which took place after Trump made his first noises about firing Cook. Anticipating her likely firing, Roberts noted that the Fed was a “uniquely structured, quasi-private” independent agency, distinct from all the others. Alleged attempted rapist Brett Kavanaugh has made similar statements. This means at least two Republican justices are already poised to allow Trump to run roughshod over every independent agency except the Fed.

Why? Well, the easy answer is that the Fed has a direct impact on the financial health of the Republicans on the Supreme Court and the donors who’ve bought them. The stability of monetary policy, and its independence from the crazy white supremacist installed in the White House, is important for the stock market, and thus all of the investments rich people have.

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It’s also worth pointing out that destabilizing the Fed could, without hyperbole, crash the economy. Even beyond the matter of their personal finances, it’s likely that the Republican justices care about that. Remember, before the Roberts court was known as the most pro-authoritarian court in US history, it was widely regarded as the most pro-business court in US history.

Practically speaking, giving Trump personal control over the Fed is bad for business. While the Republicans famously do not care about practicality when it comes to abortion rights or gun rights, when it comes to money? The Republicans care a great deal.

The majority of the justices’ evident skepticism toward Trump in this case are only really intelligible if you understand both the personal and national implications of the issue in front of the court. The core argument made by the Trump administration was that Cook was fired “for cause,” as is required by statute. The administration claims that the “cause” is an allegation that Cook committed mortgage fraud (she did not) before she was appointed to the Fed. Ostensibly, the justices were arguing over whether this particular alleged fraud is enough of a cause (because not only are the allegations false; they’re allegations over conduct from before she was on the Fed, which is not normally a “for cause” reason to fire somebody from a federal position). The justices were also arguing over whether Cook should have any opportunity to defend herself from these (again, provably false) allegations.

Again, Trump has fired people based on made-up allegations before. The only reason the court is skeptical about this firing, based on these made-up allegations, is that the ability to fire Fed commissioners at will places the monetary policy of the entire nation at the whim of Trump. We are literally watching Trump trying to push Fed chair Jerome Powell out right now, but he won’t have to push him if the court says the president can just fire Fed officials whenever he wants.

Because of this, Kavanaugh finally raised the question that he should have raised during every Trump-fires-someone case the court has heard thus far. He asked Solicitor General John Sauer what would stop future presidents from “manufacturing” artificial “cause” to justify firing Fed commissioners whose political positions they don’t like. Sauer said that Trump’s reasons were not manufactured, and that the “for cause” provision protects commissioners from being fired for policy reasons. But everyone knows that the only reason Cook was fired by Trump was policy reasons. Kavanaugh rightly intuited that if Trump can fire Cook, a future Democratic president can just come in and fire all the Trump appointees and install Fed commissioners loyal to the new administration’s monetary policies. Kavanaugh literally quoted himself—from his confirmation hearing, when he threatened retribution on his political enemies—and warned: “What goes around comes around.”

That’s always been true with these firing cases. Kavanaugh just suddenly cares about it now.

Nor is it just Kavanaugh who has suddenly decided to care about the obvious. Here’s what will really shock people who naively think the Republicans on the Supreme Court are committed to their own logic: I think Justice Sam Alito is in play for ruling against Trump. For the first time during Trump’s second reign, he sounded like he was trying to find a way to rule against the president—specifically, to send the case back down to a lower court to have it decide whether the alleged pre-office mortgage fraud was sufficient “cause” for this firing. Roberts and Kavanaugh wanted to end this attack on the Fed now, but Alito (and Ketanji Brown Jackson, to an extent) seemed interested in letting a lower court simply say “this isn’t cause,” as opposed to forcing the Supreme Court to do the dirty work.

The two justices most aligned with Trump’s position were Clarence Thomas and Neil Gorsuch, and that should not be surprising. Say what you will about those two (and I’ve said a lot about how much they suck), those guys are consistent in their belief that the practical consequences of their decisions should be ignored, even when their decisions lead to suffering and death. Thomas and Gorsuch are, like the rest of the justices from both parties, outcome determinative. But in this case, the outcome these two value most is power, not the health of the American economy. If Trump wants to use that power to crash the economy, that’s his problem, not Thomas’s or Gorsuch’s (according to them).

Still, they were in the minority. Ultimately, Roberts does not want Trump to have personal control over the Fed, so Trump won’t have it. I also don’t think Roberts wants Trump to be able to impose retaliatory tariffs, so Trump likely won’t have that power either. Roberts does want Trump to be able to kill the NLRB and USAID, so he can. I don’t yet know if Roberts wants Trump to be able to end birthright citizenship, but I guess I’ll find out soon.

I wish Roberts thought immigrants and white ladies in Minnesota were as important as the Federal Reserve. I wish Roberts thought protecting American schoolchildren was as important as protecting American investments. I wish Roberts thought discriminating against a Black woman working at Publix was as important as discriminating against a Black woman working for the Fed. But… he doesn’t.

Trump will lose this case because he’s trying to mess with something the Supreme Court thinks is important. I wish we all could be so lucky as to appear valuable to John Roberts and the Supreme Court.

It’s a problem that whenever I listen to Democratic leaders like Chuck Schumer and Hakeem Jeffries, I become frustrated, instead of inspired. It’s a problem that they make me feel hopeless instead of hopeful. It’s a problem that whenever I get their fundraising notices (which I’ve tried to block), I am motivated to respond with invectives and profanity instead of money. It’s a problem that Democrats project weakness, cowardice, and complicity, instead of strength and resolve. It’s a problem that listening to Democrats makes me want to tune out, to know less, to care less.

Maybe it’s just me. In fact, I desperately hope my reaction is unique, that I’m allergic to fecklessness in some psychologically specific way. When I see people out in the streets protesting, I see energy, I see passion, I see people willing to risk it all. I see everything that I don’t see in Washington. I see people who are not waiting for the Democratic Party to remove its head from its fatally bloated ass.

The people are leading. This week, for the first time, a poll showed that abolishing ICE was more popular than funding it. But too many Democrats remain committed to protecting Trump’s Gestapo, while many, many more would rather just not talk about it at all. No matter how many people ICE shoots dead in the streets, Schumer would rather talk about the price of eggs.

I just don’t know if the people who stand to politically benefit from the energy in the streets, the Democrats, can benefit from it if they spend all their time telling people to not care about the things they care about. For every person who looks at the uselessness of Washington Democrats and says, “I have to do more,” how many others say, “There’s nothing I can do”? How can we expect people to literally risk their lives to defend their communities when their leaders won’t risk a mean tweet from an imaginary Republican they’ve invented in their head?

My mother and sister went to a protest last weekend, then packed anti-ICE bags (bags with whistles, eyewash, and contact information for lawyers) to be given out to protesters. I was supposed to go too, but I bailed. Hopelessness got the better of me. They say in Dune, “Fear is the mind-killer,” but for me it’s despair.

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I’ll work myself out of it. I always do. I just have to remember that being against something evil is more than enough justification for action. I just have to be motivated by our lack of options, instead of enervated by it. I just have to remember that I’m a Democrat by registration, not by temperament.

The Bad and the Ugly

• Illinois and Minnesota have sued the Trump administration over ICE’s illegal and unconstitutional occupations of the states. I mean, it’s either this or arming state militias and fighting the civil war that Trump thinks his side will win this time, so I guess this first.
• The Trump administration will stop processing visas from 75 countries. Almost all of them are in Africa, the Middle East, and South America—as if you had to guess which countries our white supremacist president was going to target.
• The US Court of Appeals for the Third Circuit ruled that the New Jersey district court judge who ruled that kidnapped Palestine activist Mahmoud Khalil should be freed from detention did not have proper jurisdiction over the case. Khalil will appeal but… have you met the Supreme Court recently? The ruling opens the door for Khalil to be re-abducted.
• Speaking of the Supreme Court, in Bost v. Illinois State Board of Elections, the court ruled that a Republican candidate has the right to challenge government action “affecting the counting of votes.” The vote was 8–1. Even though the Republican who brought the case is trying to exclude some mail-in ballots, there’s an argument to be made that the ruling will  actually be good for democracy, as it should theoretically give Democrats standing to object to, say, Trump’s stealing ballot boxes. I, however, tend to agree with Justice Ketanji Brown Jackson’s dissent, in which she pointed out that the Republican plaintiff was not able to show actual harm from mail-in ballots, and thus his case should have been dismissed.
• The Department of Justice executed a search warrant on the home of a Washington Post reporter, which is a “highly unusual and aggressive” attack on the First Amendment and the freedom of the press. It’ll be interesting to see if the Supreme Court even cares.

Inspired Takes

• Both US senators from Massachusetts wrote for The Nation this week. Elizabeth Warren wrote about how to “re-vitalize” the Democratic Party (I wonder if she senses that there are more people like me who look at the Democrats with despair), while Ed Markey wrote about Trump’s “nuclear delusions.”
• Laura Jedeed, a writer and anti-ICE activist, managed to get hired by ICE. No matter what you might have suspected about ICE’s recruitment practices, it’s worse than you thought.
• Dr. Jason Johnson explains that opposing ICE is an easy win for Democrats. Which it is. But Johnson doesn’t explore the fact that Democrats have a submission kink for losing.

Worst Argument of the Week

Donald Trump gave an interview to The New York Times in which he talked about the 1964 Civil Rights Act. I’ll just quote him: “White people were very badly treated, where they did extremely well and they were not invited to go into a university to college.… So I would say in that way, I think it was unfair in certain cases.”

And, there’s more: “I think it was also, at the same time, it accomplished some very wonderful things, but it also hurt a lot of people—people that deserve to go to a college or deserve to get a job were unable to get a job. So it was, it was a reverse discrimination.”

You don’t have to be an expert in white supremacy to understand the core animus Trump is expressing here: White people “deserve” jobs, opportunities, and anything else they want. Non-white people do not. Any non-white person who holds a position holds it at the expense of some more deserving white person, and that is “unfair” to the white person.

Folks, that’s MAGA. That’s Trumpism. That’s the whole freaking reason Trump has been part of our lives for a decade, right there. Any explanation or analysis that seeks to explain Trump without understanding his core racial beliefs, and how popular those racial beliefs are with his racist fans, fails its first contact with reality.

White folks like Trump will never accept equality. They will always see a non-white person as less deserving than a similarly situated white person. All Trump has done is expose that there are more white people who are like Trump than white people would have you believe.

Most white Democrats are still struggling with what to do with this information. But I’ve had 10 years to process it, and I’ve come to one overarching conclusion: fuck ’em. If a majority of whites will not accept equality, then the majority of whites must be defeated by everybody else.

It’s that simple. It’s always been that simple. A majority of whites have never accepted equality. They’ll never like it. But they can be forced to deal with it.

What I Wrote

The Supreme Court heard oral arguments for two cases involving bans on transgender athletes’ participation in interscholastic women and girls’ sports. I listened to it so you didn’t have to. Trans people are going to lose, again, and it’s probably only the beginning of the parade of horribles.

In News Unrelated to the Current Chaos

Earth’s oceans once again shattered heat records last year. It’s difficult to understand just how much extra heat the oceans absorbed in 2025. Here’s how Hawaii-based reporter Jeremy Yurow put it: “The amount of heat the oceans soaked up last year is difficult to comprehend: 23 zettajoules more than 2024. That’s roughly the same amount of energy the entire world uses in 37 years.”

That’s 37 years of Earth’s total energy output being sunk into our oceans in one year.

People will die: Hotter oceans lead to worse storms.

People will starve: Hotter oceans kill coral reefs, which devastates coastal fishing.

People will drown: Hotter oceans lead to more ice melting and rising sea levels.

Oh, and at some unknown tipping point, desalinated ice water will interrupt the Gulf Coast current and turn coastal North America, which is heated by warm water coming up from the Gulf OF MEXICO, into an icebox.

But none of this will bother Elon Musk or any of the tech bros who are consuming as much power as possible to produce AI-generated child porn. None of this will bother Joe Manchin or any of the coal bros who make billions off of greenhouse gas–producing power. None of this will bother Donald Trump, who can’t blame rising sea temperatures on Somali immigrants in Minnesota.

This should be urgent news, but nobody in power in our country is doing a damn thing to stop it. That’s why I’ve classed this unmitigated existential horror as  “unrelated to the current chaos.” It’s not even a real issue to the people with the political power to do anything about it.

Like I said, I’m pretty gripped by despair right now. I’m part of a failed party, a failed country, and a failed species. No matter how wide I open the aperture of the lens to let the light in, everything appears bleak.

I won’t give up, though. I have children. I have to properly model “fighting despite unwinnable odds,” because that is going to be their whole life.

***

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On Tuesday, the Supreme Court heard oral arguments in a pair of cases weighing the constitutionality of state bans on transgender women and girls in competitive sports. Given the Republican antipathy toward the trans community—and the way conservatives have ginned up a crusade against the less than 1 percent of trans women who want to compete in interscholastic athletics—the outcome of the cases is hardly in doubt. The Supreme Court will almost certainly vote, 6–3, to uphold the bans, with the anti-trans supermajority jury-rigging an opinion out of their various justifications for bigotry.

At issue in the hearing were two laws, passed by Idaho and West Virginia, barring trans women and girls from playing competitive sports at the high school and college level. The plaintiffs—one is a former college athlete at Boise State University (who has since withdrawn her complaint and vowed to never dare to attempt to play sports again), the other is a minor who wanted to play with her friends in West Virginia—argued that the bans violate their constitutional rights under the Equal Protection Clause of the 14th Amendment, and under the 1964 Civil Rights Act. Idaho, West Virginia, and the Trump administration made various counterarguments, including the claim that the laws don’t target “trans people,” only people who want to play on sports teams that do not conform to their gender at birth. It is the height of legal hypocrisy and bad faith to suggest that a law that affects only trans athletes somehow isn’t targeting trans athletes, but that is where we are with this pathetic excuse for a Supreme Court.

The bigots further argued that, even if the laws do target trans athletes (which, you know, they obviously do), the laws should be upheld because the states have a compelling interest in protecting women and girls. They argue that banning trans athletes is necessary to ensure the “safety” of athletic competition for women and girls.

As I listened to the arguments, I can’t say I was surprised to hear the Republican justices’ clear sympathy for these anti-trans positions. They have consistently shown us that they won’t let facts and science get in the way of their cultural perversions.

For the record (although it shouldn’t need to be said again): Trans women do not pose a “safety risk” to cis women participating in sports. Trans women do not dominate women’s sports, and there’s no evidence that trans participation in sports is crowding out cis women who also want to participate. This entire case is based on a manufactured cultural panic that bears no relation to the actual facts on the ground in any of these states. Republicans are allowing ICE to shoot women in the face and call them a “fucking bitch” while denying them medical attention, but they want us to believe that a trans woman hitting a tennis ball too hard at her opponent is the greater threat to women and girls.

Despite knowing all of this, I was still taken aback by the consistent use of anti-trans tropes and hypotheticals by the bigoted lawyers and justices. I guess I naïvely hoped that Supreme Court oral arguments would stay somewhat tethered to actual things that happen in the real world. But instead of lawyerly arguments about the nature of constitutional protections, we got a Fox News segment hosted by J.K. Rowling.

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Nearly all of the Republicans who asked or answered questions competed to see who could sound the most ignorant about the issues they were talking about.

Idaho Solicitor General Allan Hurst used his opening statement to say that Idaho’s trans ban applies only to “a tiny subset of males who want an unfair advantage.” Deputy Solicitor General Hashim Mooppan claimed that men are taking “performance altering drugs” to compete in women’s sports. On the bench, five of the six Republican justices—John Roberts, Clarence Thomas, and Neil Gorsuch, alleged attempted rapist Brett Kavanaugh, and Amy Coney Barrett—all echoed these concerns about men pretending to be trans in order to dominate women’s sports. Samuel Alito, who doesn’t think trans people really exist, simply used all of his time to ask “what is the definition of sex?” like he was an eighth grader excited to talk about genitalia in public.

What this meant is that much of the three-and-a-half hours dedicated to debating a critical human rights issue focused on something that does not happen. Cis boys who are cut from the football team do not identify as girls and start taking hormone blockers in order to dominate field hockey. Cis men who are too slow to medal in track do not put themselves through years of therapy followed by gender reassignment surgery to win a freaking race against women. Denying transgender individuals the right to constitutional protections based on the specter of a conniving man playing women’s sports to get a leg up (only to get embarrassed by Caitlin Clark anyway) is like canceling a trip to Hawaii to avoid the risk of falling off the edge of the earth.

That didn’t stop the Republican justices. They were relentless. The worst offender was Kavanaugh, whose experience coaching girls’ high school basketball has apparently turned him into an authority on women’s rights. He called sports a “zero-sum game” and worried that any time a trans woman wins a competition or gets a spot on a team, there is some other (presumably cis) girl who has been “disadvantaged.” It was, in its way, an object lesson in the sexual politics that got this issue to the Supreme Court in the first place: Republicans want you to think they’re all about “protecting women and girls,” but really they’re being insufferably misogynist and patronizing. Nobody gives a damn when a 17-year-old defensive lineman who’s six-foot-four and 285 pounds concusses a five-foot-eight 115-pound freshman, but should a slightly bigger girl ice-hockey player cross-check a forward into next week, a national inquiry must be launched into that girls’ pants.

Kavanaugh’s (and the other Republicans’) concerns weren’t based on any real inquiry into how the Equal Protection Clause should apply to these cases—because their starting position was that equal protection shouldn’t apply to transgender athletes. Chief Justice John Roberts made this clear when he asked the two lawyers arguing against the bans whether they want the court to make an “exception” to the definition of “girls” or a “new definition” of girls. The lawyers dutifully explained that they are not asking for either but are simply asking for trans girls to receive their constitutional protections from discrimination.

The irony, of course, is that Roberts doesn’t really think that women and girls should be given their full measure of constitutional protections (see Dobbs v. Jackson Women’s Health); he just seems to think that trans women and girls should receive nothing.

While the top-line outcome of this case was probably decided a long time ago, there are other legal issues at play in these cases that go beyond whether states can discriminate against transgender women and girls. Those other issues were discussed during oral arguments, and they’re where the legal fights will be as the Republican supermajority crafts its bigoted opinion.

The first and most legally nerdy issue centers on the question of “as-applied” constitutional challenges. An “as-applied” challenge argues that a law is unconstitutional in a specific context, or for a specific set of people, even if it is constitutional toward others. These cases are as-applied challenges. But the states and the Trump administration argue, wrongly, that trans people shouldn’t be allowed to bring these challenges, because there are too few trans women athletes.

To be clear, it’s an established legal principle that a law doesn’t have to apply fairly to every conceivable person in a hypothetical universe, but Republicans essentially argued that trans people who want to play sports are too unique to be given the full measure of constitutional consideration. Justice Sotomayor repeatedly asked the Republicans lawyers to explain how many trans people have to exist before they can have constitutional protections, but they never directly answered her question.

This is the biggest logical inconsistency with the Republican argument against trans women and girl athletes. They’re saying both that we need to erect entire state bans eradicating them or they’ll “take over” women’s sports and that there are so few trans women athletes that they can be functionally overlooked by the Constitution. It’s the now-classic Republican two-step, the one that argues, “I represent the super strong and powerful master race” but also “I am significantly harmed when I see a Black mermaid.” It’s ludicrous and nonsensical and reveals just how intellectually bankrupt their whole project is. But the very serious upshot is that if the court doesn’t let trans people make a challenge to the constitutionality of this law, then it’s hard to imagine any law trans people will be allowed to object to.

The second big legal issue that made it into oral arguments was California. While 27 states ban trans women and girls from participating in competitive sports, 23 states allow it. Some of the justices expressed concern that a ruling in favor of the state bans already in place could be used to impose trans bans on unwilling states. The Trump administration has already started coming after states like California for allowing trans athletes to compete. Mooppan, the deputy solicitor general, made no promises that the Trump administration won’t use this ruling to go after states like California, and both Roberts and Alito didn’t seem too concerned about that possibility. Kavanaugh, however, was concerned. As always, he prefers an antebellum approach to civil rights, one that allows states to decide for themselves which people get rights and which do not. So… I guess we have that sectarian Republican fight to look forward to.

The third and final issue involved, amazingly, chess. Essentially the anti-trans argument—that there are fundamental differences between boys and girls, and girls must be protected from unfairly having to compete with boys—can be used to justify the exclusion of cis women and girls from all sorts of things. Indeed, taken to their malign conclusion—that women are the dumber sex and thus they should not be put in situations where they have to compete with the men—such arguments have long been used to exclude them from everything from science classes to, yes, chess clubs. As I said, at the heart of the “protection of women and girls” argument is deep, insufferable misogyny and patriarchy.

Justice Elena Kagan zeroed in on this problem when she asked the solicitor general of West Virginia, Michael Williams, if his argument could be used to keep girls out of chess club; Williams said it was “a closer case.” I thought I detected some gasps in the courtroom, and I immediately went to make some popcorn to enjoy Kagan’s evisceration of his argument, but it never came. That’s because Gorsuch almost immediately jumped in to stop Williams from digging himself a bigger hole, saying something like, “I don’t want to talk about chess.” Five minutes later, Kavanaugh offered that “ruling for you on sports does not open the door for you” on chess. (Five minutes is a long time, but that’s the quickest I’ve ever seen Kavanaugh think.) Kagan never got back around to carving Williams’s tongue out with a spoon.

This episode showed just how dangerous this opinion will be when it comes out, probably in June. The anti-trans bigots know they’ve won this case, but they’ll be poring over the Republican supermajority opinion to see whom the court will let them discriminate against next. Every line will be analyzed for how it can be weaponized further against the trans community, or any of the other groups of people Republicans don’t like.

Many Democrats think that the transgender athletes issue is just about sports. They look at some of the poll numbers against trans inclusion, and think this is an issue they have to cede to the bigots. But this issue is not and never has been “just about sports” and the small number of trans athletes who should be allowed to compete. This is about unconstitutional discrimination, and history tells us that such discrimination, once allowed, only expands. Republicans will parlay their victory here into other arenas, against the entire LGBTQ community and other out groups.

What starts on the playing field never stays on the playing field. That was true for integration, and it will be true of discrimination.

Every authoritarian regime throughout history has employed a roving band of armed thugs who operate outside the law to enforce its strongman’s will. Caesar had his Praetorian Guard, Francios Duvalier had his Tonton Macoutes, Hitler had his Gestapo.

Donald Trump has ICE. ICE is functionally a paramilitary organization, armed and empowered to harass citizens, brutalize opposition, and murder people who get in their way. Like any paramilitary apparatus, its chief aim is to strike fear in the population. It does this not only through feats of violence, false imprisonment, and kidnapping but also by repeatedly showing us it can’t be held accountable for its actions. ICE agents can seemingly do anything they want, and no one is allowed to stop them: They know it, and they want us to know it.

When we look at the historical record, the horrifying reality of these thug paramilitaries is that they do not naturally melt away when the strongman is finally deposed. They stay on. They align themselves with the next strongman, or the strongman who wants to overthrow the republican government that deposed the previous strongman. The next guy in office tends to want to keep them around anyway, because having a terrorist apparatus able to operate outside the law is something that leaders of nations consistently find useful.

These paramilitaries can be dismantled, but only when the people demand it, over and over again, and refuse to support any politicians or regimes who would keep them in place. ICE can be stopped, but we do not elect people to power who actually want to stop ICE; we tend instead to elect people who want to “fund” ICE, control it, and use it for their own purposes. And that is why we fail.

ICE must be abolished, root and stem, by the next Democratic administration. As a stopgap, it must be defunded by the current collection of Democrats, should the party take power in the upcoming election. ICE is the one true litmus test for an incoming post-Trump administration. The Democrats will likely not be inclined to do this. Again, paramilitary thugs have their uses to leaders the world over, and Democrats are traditionally afraid of looking “weak” on immigration or actually dismantling the tools of the enemy. Democrats, if they’re going to do this, must be forced to do this, by the people whose support they seek.

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I’ve liked to think of myself as a single-issue voter, with that issue being Supreme Court expansion. But no longer. Abolish ICE, or GTFO of my primary.

The Bad and the Ugly

• The arraignment of kidnapped Venezuelan president Nicolas Maduro was one of the most pathetic days I’ve witnessed in a US court—and I don’t even speak Spanish, so I couldn’t fully appreciate how unlawful the whole proceeding was. Cristian Farias does speak Spanish.
• Emboldened by the invasion of Venezuela, chief Trump ghoul Stephen Miller has set his sights on Greenland. If you placed a bet in 1949 that Greenland would be the issue that broke NATO, you’d be about to have more money than Elon Musk.
• Secretary of War Crimes Pete Hegseth is trying to demote former Navy captain and astronaut—and current senator—Mark Kelly because Kelly keeps telling members of the military not to commit war crimes.
• Judge Hannah Dugan, who was convicted in December of obstructing an ICE arrest in her courthouse, resigned her position. She is a hero. The conviction makes her more of a hero, in my eyes.
• Most years, I write an article about Chief Justice John Roberts’s year-end report on the judiciary. The report is usually substanceless but nonetheless an interesting insight into where Roberts’s mind is at. This year, it’s very clear that his mind is buried deep in the sand. He’s essentially Kevin Bacon at the end of Animal House shouting “All is well” as chaos breaks out around him.

Inspired Takes

• Harvard has gotten a lot of good press for standing up to Trump. But that shouldn’t obscure the fact that it has absolutely failed to defend the academic freedom of those who oppose the genocide in Gaza. Gregg Gonsalves explains the university’s latest capitulation in The Nation.
• Whenever people laud someone’s “work ethic,” I kind of reflexively turn up my nose. I’ve never really been able to explain why I have such disdain for the phrase, and have suspected it’s just because I’m lazy—but no! In The Nation, Nick Juravich explains the “bleak history of the American work ethic.” My slothfulness is now a considered decision. 🙂
• One of this country’s truly indispensable journalists, Radley Balko, interviewed fired immigration judge George Pappas. Pappas said “the law has failed us,” and “the courts are dead.”

Worst Argument of the Week

I’m not going to bother to tell you, as some no doubt will, that George Conway isn’t a “real” Democrat. Sure, Conway is a lifelong Republican and essentially a founding member of the Federalist Society. Sure, he switched parties and moved from Bethesda, Maryland, to run in the Democratic primary to replace Jerry Nadler in New York’s 12th Congressional District, but… whatever.

What even is a “real” Democrat these days? A party that consistently embraces wannabe Republicans like Joe Manchin and Elissa Slotkin, that regularly gets bumfuzzled by straight-up liars like Kyrsten Sinema and John Fettermen, and that operates under the feckless and borderline complicit leadership of Charles Schumer and Hakeem Jeffries can hardly stand on intellectual or political purity. Conway is as much a “Democrat” as most of them these days. He’s a guy who’d rather make strongly worded television appearances than take radical action. He wants to reassemble the institutions Trump has smashed instead of smashing the institutions that make Trump possible. He wants to go backward, to a time before Trump, instead of boldly going forward. Oh, he’s a Democrat all right.

And not just any Democrat. Conway represents the very worst of what today’s Democrats have to offer. His signature issue is “not Trump.” His fame is based on being a Republican who was against Trump while married to a Republican working for Trump. His positions would be banal if not for the family melodrama and the fact that so few Republicans had the basic human decency to stand up to the cretin taking over their party. He exists as a television personality because TV executives are desperate for Republicans who can maintain a veneer of respectability—or, at least, they were before they gave up and put Bari Weiss in charge.

Democrats who offer nothing beyond “Orange Man bad” are the lowest-common-denominator politicians these days. Conway takes the calculation to its irreducible conclusion. Everybody knows he stands against Trump, but do people know what he stands for?

I do. Conway is basically one of the founding members of the Federalist Society. He first joined one of their boards in 1984. He’s not Leonard Leo, but he’s worked closely with the Republican judicial Svengali over the decades. There is not a single Republican on the bench that Conway has objected to: not the sexual predator Clarence Thomas or alleged attempted rapist Brett Kavanaugh, not the anti-abortion stalwarts John Roberts and Sam Alito, not the stolen-seat installations Neil Gorsuch or Amy Coney Barrett. Conway was there for all of them, and most of the Republican judges appointed to the lower courts too.

Conway’s no longer an active member of the Federalist Society (though I don’t know if he still goes to their parties and fundraising dinners; it’s not like I’m invited over to see). His 2018 FedSoc splinter group “Checks and Balances” apparently went nowhere. But despite this apparent break, Conway is one of those “Never Trumpers”—like Nicole Wallace or the entire staff of The Bulwark—who keep their criticisms focused more on Trump than on the Trump-loving Supreme Court they helped create. While he recently said that the Supreme Court has become “intoxicated with its power,” Conway is, for my money, among the people running for office who can be trusted least to take away power from a court he spent a lifetime helping to create.

Conway is good on TV. He should stay there. Being wrong about everything for your entire life until yesterday is a good credential for television. It’s a terrible credential for leadership. I have no problem accepting Conway as a Democrat, but I have a huge problem accepting that Conway is the best Democrats can offer.

What I Wrote

• First I wrote about the abduction of Nicolas Maduro, as I was pretty sure that the kidnapping of a foreign leader at gunpoint was the most flagrantly illegal thing the Trump administration would do this week.
• But then I witnessed ICE execute a woman in her car, as she tried to drive away, so I wrote about that as well.

In News Unrelated to the Current Chaos

Over the holiday break, I rewatched all of the Lord of the Rings movies. I was struck, once again, by one of the most famous scenes in the three films—the one where Frodo says, “I wish none of this had ever happened,” and Gandalf responds, “So do all who live to see such times. But it is not for them to decide. All we have to decide is what to do with the time given to us.”

I usually find this scene empowering. This time I found it to be full of shit. As I ponder what to do with the awful time given to me, my intrusive thoughts tend toward, “How best to die while fighting this regime?” But the reality is that most of us will not have a choice on how or when the Trump regime will martyr us.

Renee Good did not wake up one morning and decide she was ready to die opposing Trump. She just reacted as a decent person would when the bad people came to do bad things in her neighborhood.

On this most recent Lord of the Rings rewatching, I identified most with Meriadoc Brandybuck (one of the three hobbits who join Frodo on his quest). Merry didn’t set out like Gandalf to organize regime change. He wasn’t charged like Frodo to destroy the evil power. He just… tried to help his friends, and understood that if he didn’t try, his entire community would be destroyed. When Merry is at the Entmoot (the meeting of powerful but long dormant tree-creatures), literally screaming at the trees to do something, I felt like he was me talking to Democrats in Washington.

“I’m a hobbit, and I know I can’t save Middle-Earth. I just want to help my friends” turns out to be my New Year’s resolution.

***

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The Trump administration has murdered another person. On Wednesday, ICE agents killed a woman, identified as 37-year-old Renee Nicole Good, who was not engaged in any illegal activity.

The story unfolded early yesterday morning as ICE was apparently conducting some kind of action not far from Good’s home. Her car was in the road, obstructing it somewhat, while community members and ICE agents shouted back and forth. In a video, an ICE officer can be seen exiting a vehicle and attempting to open Good’s car door. She briefly backs up, and then attempts to drive away. A different ICE agent positioned in front of the vehicle then fires three shots at point-blank range into the car, killing Good.

Director of Homeland Security Kristi Noem claimed that Good was “involved in an act of domestic terrorism.” A DHS spokesperson said that Good attempted to “weaponize her vehicle” and run over ICE agents.

Minneapolis Mayor Jacob Frey immediately called DHS’s justifications for murder “bullshit.” Again, there is video of the incident, and that video shows that, as usual, DHS and the Trump administration are lying. It shows a nonviolent encounter that turns deadly when an ICE agent unloads his gun into a car at an unarmed woman.

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The Trump administration has committed many murders, and they haven’t been held accountable for any of them, but this time should be different. That’s because this murder took place in Minnesota, and there are state laws that prevent the murder of nonviolent people. These laws should operate even when the murderer is a federal agent.

Federal agents do not have immunity from state murder charges—when they commit murder. Now, obviously, that tautology is a little circular. What it means is that Minneapolis officials will first have to determine that a murder occurred. I’d say that shouldn’t be hard to do, based on the video, but I’m Black and therefore know too well how prosecutors can refuse to see a murder that happens right before their eyes if a law enforcement officer is the one doing the murdering.

Good was a white lady, so I’m hoping that allows people to see what clearly happened. She was trying to drive away from ICE, not run over them. The officer was not threatened with deadly force but still pumped three bullets into her car. That is murder.

Assuming Minneapolis prosecutors do, in fact, want to prosecute a murder that happened in broad daylight, on video, on their streets, the ICE officer’s status as a federal agent should provide him no relief. States can prosecute federal officers who violate state laws. According to the Supreme Court, only Trump enjoys immunity to shoot someone in the middle of a street and get away with it. Everybody else is supposed to be subject to the law.

An excellent post from Bryna Godar in Slate reminds me that the most on-point example of this lack of immunity occurred after the Ruby Ridge fiasco in the 1990s. Back then, an FBI sniper shot and killed an unarmed woman while the feds were besieging a cabin in Ruby Ridge, Idaho. Then Attorney General Janet Reno declined to prosecute the sniper, but officials in Idaho did. After a court battle, the Ninth Circuit Court of Appeals said the prosecution could go forward (though charges were later dropped when the Idaho prosecutor left the job). There are other, older instances of federal officials facing state prosecution.

Criminal immunity extends only to agents who are performing their federal duties. Despite the way ICE tends to operate, murdering unarmed civilians is not part of the official duties of ICE agents.

Still, bringing the ICE murderer to justice won’t be simple. Unfortunately, the lengthy immunity fight in this case will probably last years and end up in the Supreme Court, where six Republicans stand at the ready to lick Trump’s boots and grant him whatever illegal thing he’s asking for. What this means is that the best hope for holding this officer accountable would probably involve dragging out the case, past 2028, when a post-Trump Supreme Court may be more inclined to prevent federal agents from murdering civilians. A change in the administration might make the Supreme Court think very differently about whom federal officials should be allowed to kill.

It won’t be easy to charge and convict the officer with murder. It never is. Law enforcement enjoys a broad prerogative, given to them by white people in this country, to kill who they want. Still, Minneapolis prosecutors must try. Not trying would make them complicit in this evil.

In the immediate term, prosecuting or attempting to prosecute this one homicidal ICE officer will not keep the citizens of Minneapolis safe from ICE agents. For that, Minnesota Governor Tim Walz will have to take bolder action. In the wake of the shooting, Walz issued a “warning order” to the Minnesota National Guard, essentially telling them to prepare to be deployed.

“To Minnesotans,” Walz said in his announcement about readying the National Guard, “they’re there to protect you and protect your constitutional rights.”

Walz should go all the way and deploy his National Guard to protect the rights of Minnesotans who are being harassed and, now, murdered by ICE. Walz said Minnesota has “never been at war with the federal government,” but in the words of Aragorn from Lord of the Rings, “war is upon you, whether you would risk it or not.” At some point state governors are going to have to join their people and stand up to armed paramilitary forces who are invading their states and abducting or killing their people.

If the governors don’t, the killings will continue, because the people are not backing down. The people are doing everything they can to resist ICE peacefully, and ICE has consistently responded with violence. It’s time for the governors to have their people’s backs.

The next time a woman gets caught in the middle of an ICE raid—and there will be a next time. because women are not afraid of these boys playing at fascism—she should be defended by National Guard troops. At the very least, those troops need to be on hand to apprehend and arrest on the spot any future murderers wearing ICE clothing.

The United States of America is a rogue nation, run by a violent criminal who operates outside the rule of law. The bombing of Venezuela and kidnapping of its president, Nicolás Maduro, so that he can stand for a show trial in New York, is a flagrant violation of international law. It is proof positive that the United States, under Trump, is the biggest “bad guy” on the international stage and should be treated accordingly. It’s a new low point in the era of lows we call the Trump administration. And it’s a return to the imperialist posturing and interventionism that have defined this country’s garbage treatment of Latin America for two centuries.

The United States should be condemned by the international community and all peoples of this earth. Decent countries should sanction us economically, and our leaders should be charged as war criminals and have their assets frozen. These sanctions should not just be directed at the top level of our government but also against our feckless Congress and the complicit politicians in both parties who support our illegal actions. The US should be treated like the global pariah it is, and that includes bringing all of the soft-power and shame the world can bring to bear on us: Our embassies should be closed and our diplomats expelled, our games and tournaments boycotted, including the upcoming World Cup and Summer Olympics. And everybody else should be issuing travel advisories to the US in an attempt to crash our tourism industry. Everything the international community did to Russia after it invaded Ukraine should be done to us now that we’ve invaded Venezuela and are trying to install a sham government there.

Just like Russia, we have violated the UN charter with this unlawful use of force against a sovereign nation. Those rules can be broken only in cases of self-defense, but it should be pretty clear that the United States has no legitimate self-defense case. Venezuela did not attack us, or our allies. Drug trafficking, no matter how you construe it, is not an “armed attack.” It is not a justification for the use of military force against a sovereign nation. Nobody who takes drugs in the United States is forced to do so at Venezuelan gunpoint. There is no line that can be drawn from a Trump supporter taking a bump at Mar-a-Lago back to a declaration of war on Caracas. The drug-trafficking-as-armed-attack line simply doesn’t work—not as a justification for bombing fishing boats in international waters in the Caribbean, and not for invading a foreign country and kidnapping its president.

The argument that the abduction of Maduro was a simple “law enforcement” action is also legally ridiculous. The United States has no jurisdiction over Venezuela, even though the Supreme Court has said that it retains jurisdiction over foreign nationals charged with crimes in the United States. Vice President JD Vance said, “You don’t get to avoid justice for drug trafficking in the United States because you live in a palace in Caracas.” Vance only went to Yale Law School, so maybe he didn’t learn this, but that is pretty much how it’s supposed to work: You don’t get to kidnap people living outside your country just because you want to bring them to trial. The only legal way to bring Maduro over the United States to stand trial would be with an extradition treaty between the US and Venezuela, which we do not currently have. And even if we did have some kind of mutual assistance agreement with Venezuela, Maduro should enjoy criminal immunity as a leader of a sovereign state (a concept Trump, the convicted felon, should understand well). Fundamentally, sending in our own military to make the arrest on foreign soil without the consent of the other country would still violate international law and the sovereignty of Venezuela.

Just to close the loop on this ridiculous “law enforcement” argument, at his illegal arraignment in New York on Monday, Maduro (and his court appointed lawyer) revealed that he did not know his rights before the US District Judge Alvin Hellerstein informed him during the hearing. The arrest of Maduro fails “normal law enforcement” 101.

MAGA sycophants have pointed to the arrest and trial of Gen. Manuel Noriega of Panama as precedent for this illegal action. In 1989, the US invaded Panama and eventually abducted Noriega, then forced him to stand trial in Miami where he was convicted of drug trafficking.

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First of all, citing some risibly illegal shit we did 35-odd years ago to justify some risibly illegal shit we’re doing now is not a “legal argument” so much as proof that illegal activity will be repeated if it is unpunished. We had no right to invade Panama in 1989, just as we have no right to invade Venezuela now. We do these things because we are a nuclear superpower that treats all Latin American countries as our misbehaving colonies, not because we have moral, ethical, or legal ground to stand on.

That said, even the Panama invasion had more of a veneer of legality than the Venezuelan one. For one thing, Noriega’s government had technically declared a state of “war” against the United States, and an attack had left a few unarmed American soldiers dead. That’s not a lot of legal justification for George H.W. Bush to abduct a foreign ruler, but it was a lot more than what Trump has now.

Despite that thin lacquer of legality, the United Nations condemned US actions in Panama.

Hopefully, they’ll condemn our actions again, but (newsflash to Chuck Schumer and Hakeem Jeffries) we’re going to need more than a strongly worded letter from bureaucrats. Speaking of Schumer, Jeffries, and the cadre of feckless Democrats, they seem very bent out of shape that Trump didn’t go to Congress to ask for a declaration of war before kidnapping a foreign ruler. But let’s be clear: Having congressional authorization to violate the peace of the world would not make those violations “more legal.” As I said: The entire international community should rise up against us.

They won’t. Already the leaders of Europe are stammering out platitudes meant to avoid Trump’s wrath. UK Prime Minister Keir Starmer said that he “regarded Maduro as an illegitimate president and we shed no tears about the end of his regime.” French President Emmanuel Macron initially said that Venezuelans “can only rejoice” at the ouster of Maduro, evidently ignoring Venezuelans’ feelings about the bombing of their capital by a foreign power. Later, he walked it back somewhat and said he “neither supported nor approved” of Maduro’s abduction. Good to know that kidnapping is still generally frowned upon by the French government. Meanwhile, German Chancellor Friedrich Merz made the most Weimar Republic statement possible: He said the legality of the US operation was “complex” and that “international law in general” should be followed. “In general” is doing a lot of work here.

I cannot be surprised that many of the leaders of the traditional European powers are willing to let the United States play colonial master over a Latin American country. Europe hasn’t had the strength or the will to seriously oppose US policy in Latin America since 1812, and starting an economic war with us over yet another example of US imperialism is not something the European imperialists are likely to do.

I also can’t be surprised that many of the non-white and wannabe-white countries whose economic interests align with the United States have also offered support of yet another American attempt at regime change in Latin America. From Japan to India to the American puppet government in Argentina, standing against the US is evidently too expensive.

These countries should oppose us, but imperialists generally stick together. The world will still come to participate in our reindeer games, and the United States will spend a whole year congratulating itself over the 250th anniversary of our Declaration of white male Independence without even pausing to consider the irony that independence for white people here has meant two and a half centuries of subjugation for everyone else we share the hemisphere with.

I’d be remiss if I didn’t point out that this is why no leader in the Global South should respect the United States or the white international community at any level. US leaders have proven time and again that they are racist hypocrites who do not stand for freedom or liberty, only the rape and pillage of resources their countries don’t have enough of. Whether those resources are oil, wealth, or even human beings, it doesn’t matter: The white world sticks together when it comes to stealing stuff from non-white countries.

The US is a rogue state, but it is a rogue white state menacing its non-white neighbors, and that’s always OK. Even non-white countries understand that. Everybody on the global stage knows that the rules are different when white nations take what they want, particularly when they’re taking it from non-white nations. They’ve been doing it for literal centuries.

In this way, Trump’s actions against Venezuela are far from unprecedented. Violent, illegal actions by this country against sovereign Latin American states are the norm. Trump, as is his wont, is just doing the normal thing without the usual white niceties that come with imperialist machinations.

By taking off the US’s mask, Trump has simply revealed what non-whites have always known to be true: US foreign policy is as colonialist, imperialist, and racist as anything ever put out by Europe, and most of Europe will continue to support it.

As you know, there was another school shooting this week, this time at Brown University. The coverage has been what we’ve all come to expect: Republicans act like there’s nothing we can do about it, and Democrats make meek noises about gun control. Nothing happens, and nobody even expects anything will happen. The suspected shooter was caught, after apparently killing himself, late Thursday night.

The only thing novel about this school shooting is that it happened at Brown, an Ivy League university. I don’t know any person who would have said that getting an elite, expensive education protects people from being shot while at school, and yet, I don’t think I’m the only person who kinda, sorta privately assumed that sending your kids to elite institutions made them more safe from the violence that envelops America. I wouldn’t argue the shooting “shattered” my false sense of security, because I always knew it was a false sense. It just “reminded me” that nowhere is safe.

But feeling that nowhere is or can be safe is, indirectly, part of the problem. It is what MAGA and the NRA and the politicians running the government want us to believe. If nowhere is safe, then the Republicans are right that nothing can be done about it. If nowhere is safe, then we all just have to live like this. It makes people say, “I hope my kids don’t get shot at school,” as opposed to “I will do everything in my power to make sure my kids do not get shot at school.” It doesn’t lead to activism but to acceptance.

It doesn’t have to be like this. Schools could be safe. They are safe in pretty much every other highly industrialized country. The thing that makes our country exceptionally violent is not some unsolvable problem; it’s the Second Amendment. If Republicans say that we can’t make our country safe because of the Second Amendment, then I say we must repeal the Second Amendment.

I know that sounds impossible, both politically and culturally. To that I say, in other countries dead children at school is the thing that sounds politically and culturally impossible.

School shootings should radicalize us, not numb us.

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The Bad and the Ugly

• The Department of Justice sued the Virgin Islands over its gun restrictions. Of course, the Republicans are interested in making this country’s “territories” as violent and unsafe as the mainland is.
• Donald Trump used the stabbing death of Rob and Michele Reiner as an opportunity to further debase his office. I will remember his comments when Trump finally dies.
• Senate Judiciary chair Chuck Grassley will not allow there to be a public hearing on the Trump administration’s murders of people on boats in the Caribbean.
• Enrollment of Black students is down at the nation’s top law schools, just as racist ghouls like Stephen Miller, Ed Blum, and Clarence Thomas wanted it to be.
• And just so you really understand: Getting into a top law school is apparently all you need to do in order to have a successful legal career. You don’t even have to, you know, do well in law school, according to the nation’s top law firms. These firms have started extending offers of full-time, six-figure jobs to students who haven’t even completed a single semester of study. Getting into a top law school is a golden ticket, and Black students are not welcome.

Inspired Takes

• Michael Harriot wrote a brilliant “preemptive statement” that officials can use for all future mass shootings. I’d call it “satire” but… it’s not. It’s just reality.
• The Nation has an exclusive interview with incoming New York Mayor Zohran Mamdani. History tells us that New Yorkers inevitably end up hating their mayor, so I’m saving my own personal “hey, do you want to talk to The Nation” chip for when everybody else hates his guts.
• This cartoon that was published in The Nation about the White House ballroom really got me thinking: One of the easiest symbolic gestures that a future Democratic president can take is nuking Trump’s garish ballroom from orbit. Unfortunately, I know Democrats, and I can already anticipate the millions of excuses they’ll make for not doing that. They’ll say, “I’m focused on the people’s work, not a silly ballroom.” They’ll say that they have to follow protocols before destroying the ballroom, protocols Trump didn’t follow when he destroyed the East Wing. Then they’ll create some kind of committee or commission to try to figure out what to replace the ballroom with, and that committee will be gridlocked between people who want to restore the old East Wing, versus people who want to build something actually useful. People will complain and moan about the cost, and Congress will eventually hold oversight hearings to prevent what they’ll call a presidential boondoggle. No actual plan will be made until the Democrat is a lame-duck president, and the incoming Republican administration will just cancel those plans, AND THE BALLROOM WILL JUST KIND OF STAY THERE FOREVER. Basically, the stupid freaking ballroom will be an early, simple test of how serious the new Democratic administration is at undoing the Trump era, and I already know how they’ll fail to demolish this low-hanging fruit.

Worst Argument of the Week

Donald Trump went on television Wednesday night and shouted at the American people for 20 minutes. As usual, he made things up, bald-face lied, and mischaracterized the nature of reality. Here’s the CNN fact-check of the speech. 

Most notably, to me at least, Trump promised 1,450,000 military service members a “warrior dividend” of $1,776 (to commemorate the signing of the Declaration of Independence in 1776), by Christmas. He said the checks were already in the mail. 

They might be. Their $2.6 billion cost is just a fraction of the military budget already approved by Congress. I’m not necessarily opposed to military families’ getting a little extra cash this holiday season. They were hit hard by the government shutdown, and while my sensibilities tend toward giving people living on the margins the extra money, I don’t believe in zero-sum politics. Giving military families extra money doesn’t preclude Trump from giving working families extra money; instead, being a jackboot unsympathetic asshole precludes Trump from giving working families extra money.

However, paying the military in this way, or framing the payments in this way, is one of the most dangerous things I’ve ever heard Trump say. Yes, ever. History is literally full of dictators or would-be dictators who rose to power on the strength of private military forces who were paid by their strongman general, not the state. That made the troops loyal to their general, not the state. Indeed, having military payments controlled by the Congress or parliament, as opposed to the executive or king, is the key liberal reform that is meant to stop would-be dictators from amassing the military strength needed to overthrow republics.

Even though this money was already authorized by the state (once again, great job caving on the shutdown, Democrats), it is incredibly bad to have Trump framing the payments as the result of his largesse (no doubt his big, stupid, auto-pen signature will be on those checks as well). It purposely creates the false sense that Trump, and not the American government, is responsible for these families’ financial well-being. And Trump knows this. He’s a man who has never engendered any heartfelt loyalty, only transactional loyalty. He doesn’t earn respect; he buys it.

We have an election coming up before next Christmas. Trump just told the most powerful military on earth that if they want bonus money next season, he needs to stay in his position of unassailable power.

Of all the things that Trump has done, $1,776 checks to the military is the one that could most directly lead to an authoritarian takeover of the United States of America. The irony that it’s being framed around the Declaration of Independence will not be missed by future historians.

What I Wrote

I am deep in the weeds on a feature print piece about artificial intelligence. And since I don’t let AI do my research, I’ve been a bit busy. But a print piece I wrote about the Supreme Court’s tyrannical use of the shadow docket is available online now.

In News Unrelated to the Current Chaos

Sitting in the hospital with my wife while she was in labor with our second child, I turned on the television. For our first child, I had prepared an entire comedy routine to take her mind off of the bowling ball slowly making its way through her cervix, and… it went over like a bowling ball. Lesson learned. My plan for “Unimaginable Pain II” was just to find something for us to watch.

The television worked, but the sound did not. After some pathetic and failed attempts to fix it, we found a channel that was playing The Princess Bride. For that movie, we didn’t need the sound. For about a half hour, from when Cary Elwes confronts André the Giant through the final showdown with Wallace Shawn’s Vizzini, we just quoted the movie back and forth to each other, with her generally playing the Dread Pirate Roberts and me playing the other characters. Then, you know, she started screaming and, soon after, we had another baby.

I got to meet Rob Reiner a couple of years ago and tell him that story. He smiled and said with a laugh, “Happy to help! You never know how you’re gonna help people.”

I’d like to think Reiner knew that he helped many, many people.

* * *

Elie v. U.S. will be on hiatus next week but will return in the new year.

Courts play an important role in authoritarian regimes. They legitimize the actions of despots by declaring them “legal” or “constitutional.” They ensure institutional compliance with the regime’s rules. And they make politically unpopular decisions that align with the authoritarian’s goals while giving the authoritarian political distance from those goals. Quite simply, you can’t instigate a strongman takeover of a constitutional democracy without having a robust judicial power that’s willing to play along.

In the United States, Donald Trump’s regime has found its willing wingman in Chief Justice John Roberts and the other Republicans on the Supreme Court. The Roberts court is game to do everything Trump wants it to do and, as an added bonus, to do most of it in secret, under cover of what’s known as the shadow docket.

The “shadow docket” is the colloquial term for the court’s emergency docket—those cases for which the court, at the request of a litigant, issues expedited rulings and does so without a full briefing from the lawyers involved or a full hearing on the issue at hand. The emergency docket is supposed to be used for, well, emergencies: cases that require an immediate response to avert irrevocable harm. The classic emergency-docket case is a death-penalty appeal. A person set to be executed in the morning cannot wait for the court to consider their appeal in a year and a half.

Technically, shadow-docket rulings are supposed to be temporary, pending a full hearing by the court on the merits of the case. In reality, many are final, because the harm the Trump administration does in the interim cannot be easily undone. If the court temporarily approves Trump’s right to fire you or cut off your food or bomb your boat, it’s hard to undo those actions a year later, when the court considers the merits of your unemployed, starving, charred case.

Many court watchers have sounded the alarm over the Supreme Court’s use of the shadow docket in recent years—notably, since 2017, when Trump arrived at the White House. Until then, it was exceedingly rare for a president to make an emergency appeal to the Supreme Court. During their respective terms (for a total of 16 years), George W. Bush and Barack Obama each made only eight emergency appeals. Trump, by contrast, made 41 in his first term. Joe Biden made 19 over his four years in office, a number that the second Trump administration matched in just its first 20 weeks. Trump uses and abuses this process so much that some people now call it the “Trump docket.” Anytime he gets a lower-court ruling he doesn’t like, he runs to the Supreme Court asking for emergency relief. And he usually gets it: As of this writing, Trump has received decisions in 23 cases on the shadow docket. He’s won 20 of them. Every time Trump makes a shadow docket appeal he might as well shout “By the power of Greyskull,” because he’s about to transform from a feeble man who can’t grip a glass with one hand into HE-Man.

In its rulings for Trump, the Supreme Court is doing something more sinister than handing him policy victories; it’s upending the rule of law itself. Don’t just take my word for it—listen to one of the shadow docket’s loudest critics, Justice Elena Kagan. “Our emergency docket should never be used, as it has been this year, to permit what our own precedent bars,” she wrote in a dissent from one shadow-docket ruling. “Still more, it should not be used, as it also has been, to transfer government authority from Congress to the President, and thus to reshape the Nation’s separation of powers.”

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It’s worth noting that, in ruling for Trump, the court has completely ignored the definition of emergency. It’s not an emergency when a lower court forces the Trump administration to follow well-established precedents or laws that are decades old. It’s not an emergency when a court forces the government to apply due process. It’s not an emergency when Trump doesn’t get his way. By granting Trump emergency relief, the court is telling him that every law is a mere suggestion that he is free to ignore until the Supreme Court finally weighs in.

The Supreme Court is not supposed to be the only judicial authority in the country, but its use of the shadow docket effectively voids the authority of every lower court in the US. The shadow docket is not just a power grab for Trump; it’s a power grab for the court as well. With it, the Supreme Court—and only the Supreme Court—can tell us which laws matter and which can be ignored.

And all of this supreme decision-making is happening in secret. That is another key feature of the authoritarian playbook. Recall that public courts were a democratizing innovation. Our system is supposed to be transparent: People have a right to go to almost any court they want (including the Supreme Court) and watch the hearings. The evidence presented to the judges can be seen by everybody. Judges are supposed to explain their rulings, and if those explanations are unpersuasive, future judges are more or less free to overrule them and tell us why.

None of that happens with the shadow docket. Once Trump makes an appeal, those who oppose him do not have time to produce evidence for why his appeal is bunk. Lawyers can only guess at what untested, whackadoodle legal theory his lawyers are pushing—or what information, if any, the justices are looking at before they issue their emergency ruling. And once those justices issue that ruling, they are not required to tell us why they did what they did.

Why did the Supreme Court overrule a 90-year-old precedent that should have prevented Trump from firing commissioners appointed by his predecessor? I don’t know. Why did the court believe that Trump could withhold food from hungry people during the government shutdown? I can’t say. Why can Trump kidnap people and send them to Uganda without a hearing? Beats me.

This lack of explanation is not just a problem for pedantic eggheads who want to write law-review articles. It causes practical chaos in the administration of law, because the Supreme Court expects everybody else to treat these unsigned, unexplained decisions as precedents. Yet if the court doesn’t explain itself, then lower courts have nothing to go by when the next, slightly different version of the same issue crops up. This puts lower courts in the unenviable position of either blindly acquiescing to whatever the Trump administration wants or having to stop Trump again, triggering yet another appeal and yet another unexplained shadow-docket ruling.

All of this helps the long-term project of authoritarianism. It legitimizes Trump’s facially illegal actions, it forces all of the other institutions to play along with whatever crazy thing Trump is doing, and it gives Trump distance from his most unpopular stuff because his administration doesn’t have to stand up in court and argue for whatever cruel and unusual thing he’s trying to do. 

But don’t worry, the shadow docket will not be here to save every president. As we saw during the Biden administration, the Republican justices have no problem denying the shadow docket appeals from a Democratic president.

The Supreme Court’s use of the shadow docket is tyrannical. We are now being governed by the whims of six people who don’t have to explain themselves and can never be voted out of their positions of power.

People say that the wheels of justice move slowly. Maybe that’s still true. But the shadow docket makes sure that the wheels of injustice move at warp speed.

Fascist Trump goon and recently elevated Third Circuit Judge Emil Bove attended a Trump rally in the Poconos this week. Bove has emerged as a front-runner for the next Supreme Court opening, so it might not surprise most people that he opted for a front row seat to listen to his benefactor talk about “shi thole countries.”

The thing is: It’s a serious ethics violation for a sitting federal judge to attend a political rally. Cannons 2 and 5 of the US Courts Judicial Code of Conduct prohibit most federal judges (the inexplicable exception is Supreme Court justices) from attending political events and ask them to avoid even the appearance of impropriety when it comes to supporting political candidates. Bove has clearly breached this code of conduct, and watchdog groups have already filed ethics complaints against him.

Not that it will do any good. Although federal judges must follow a code of ethics, they are not subject to independent, third-party oversight. Instead, ethics complaints against them are handled by the court they serve on. In Bove’s case, this means the complaints will be heard by his colleagues on the Third Circuit. And even if his fellow judges are as aghast at his behavior as they should be, the stiffest penalties for ethics violations usually amount to no more than censure. Federal courts do not have the authority to remove their own judges.

The only body that does have the power to kick Bove off the court for his corruption is Congress, through the constitutional process of impeachment. So now I am forced to quote a Democrat who cannot retire soon enough, the minority leader on the Senate Judiciary Committee, Dick Durbin. Here’s what he told Courthouse News Service: “Mr. Bove is a loyalist to President Trump, but I hoped that after he received this appointment to the federal bench at the second-highest court in the land, he would show better judgment.” When CNS asked Durbin whether Senate Democrats would “act against Bove,” he replied that he was still thinking about it.

A literal chimpanzee that was trained only to throw feces when displeased would be a more effective leader on Senate Judiciary than Durbin at this point.

In fairness, even if Durbin had sufficient spine to act, it wouldn’t matter. You need 67 votes to convict on an impeachment charge in the Senate (which itself assumes you could get charges through Mike Johnson’s House), and Republicans are already twisting themselves into pretzels to defend Bove. Check out this torturous logic from Senator Josh Hawley: “If a campaign hosts a dinner, a judge can’t go do that,” he told Courthouse News Service. “That’s a gift from a campaign. I think an event by a public official is fine. It’s within his discretion.”

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According to Hawley, Bove can’t go to a dinner hosted by his friend Donald Trump, but can go to a political rally for his friend Donald Trump. What makes Hawley’s argument all the more risible is that it’s devoid of any reference to the actual statutory code covering judicial ethics. It’s a standard that Hawley is making up on the fly.

None of this remotely matters to Bove’s long-term project to be a Supreme Court justice. If Justice Sam Alito retires and Trump nominates Bove, Republicans will confirm him while Durbin and the Democrats continue to think about what to do next.

The Bad and the Ugly

• A judge is trying to block ICE from arresting immigrants outside of courthouses. But the Trump administration claims that “no such policy exists.” We are at maximum gaslighting here, with the Trump people saying they’re not doing what we can clearly see them doing.
• We can also clearly see ICE beating people up for no reason. This week, ICE assaulted a woman, placed her in leg restraints, and cut off her wedding ring for the crime of “observing ICE at a distance.” In a decision earlier this year, alleged attempted rapist Brett Kavanaugh described these sorts of attacks on citizens as a “minor inconvenience,” and I can only assume that’s because he considers lying face down in the snow while removing his wedding ring a normal Saturday night activity after he’s had a few beers.
• Obligatory reminder that the Epstein files are still a thing. A judge ordered the DOJ to unseal the grand jury investigation into Ghislaine Maxwell.
• Michael Jordan beat NASCAR. The racing organization just settled with a group of owners, which included his Airness, over an alleged antitrust violation. I hope one day President LeBron James nominates Jordan to be attorney general.

Inspired Takes

• Here’s the subhead to Tarpley Hitt’s latest article in The Nation: “The original [Barbie] doll was not made by Mattel but by a business that perfected its practice making plaster casts of Hitler.” If that does not pique your interest, what are we even doing here?
• Scientists gathered in the UK to, once again, desperately try to sound the alarm on climate change. We have arrived at the scene in the disaster movie where the egghead scientists are screaming to everyone that the great disaster is coming, but the bad guys in power refuse to listen to them. And we all know what happens to the scientists in those movies: They die. Then most of the rest of us die. Then one guy who listened to the scientists has to try to save what’s left. Mark Hertsgaard does his best Woody Harrelson impression in The Nation.
• My expertise generally stops at the water’s edge, so I do things like read Adam Serwer to understand how Trump’s white supremacist imperialism is being exported around the world.

Worst Argument of the Week

I like to periodically remind everybody that the Trump administration and the Supreme Court are serial killers, finding speedy and efficient ways to murder people on death row. The Supreme Court held oral arguments this week in Hamm v. Smith, a capital punishment case in which lawyers for a person the state wants to kill argues that their client is intellectually disabled and should therefore be shielded from the death penalty.

As a public intellectual and a person who makes their living on at least the appearance of being “smart,” I’m always shocked when people bring up IQ scores. In my expensively educated mind, IQ has largely been debunked as a reliable way of measuring intellectual capacity. When people quote IQ scores to me, all I hear is “Big number good, fire bad.”

It turns out that we still heavily rely on IQ scores to determine who is fit to die. If you score under 70, you are deemed to be mentally incapable of understanding the severity of your crime, and thus it is cruel for the state to murder you. If you score over 70, well, apparently, you deserve to die.

Joseph Smith has taken four IQ tests over the past 40 years that he’s been on death row in Alabama. He’s scored between 72 and 78. Alabama wants to execute him based on these scores, but a panel of experts, taking what they described as a holistic approach that goes beyond his IQ scores, has determined that Smith is intellectually disabled. Alabama is asking the Supreme Court to let them kill the guy all the same.

In case I’m not being clear, I think the death penalty is wrong, morally barbaric, and a violation of the Eighth Amendment’s ban on cruel and unusual punishment. But any argument that devolves into whether a few points on a standardized test marks you for death is darkly absurdist. Alabama is literally arguing that it can ignore experts who say Smith is intellectually disabled because he scored too high, by a couple of points, on a test.

It doesn’t appear that the Supreme Court will agree. While listening to oral arguments, I could not get past Justice Neil Gorsuch, the most homicidal justice when it comes to capital punishment. Explaining Gorsuch’s cruel and bloodthirsty commitment to the death penalty was one of the first articles I wrote for The Nation.

But Ian Millhisier argues that if I hadn’t been blinded by Gorsuch’s usual arguments to kill as many people as quickly as possible, I might have noticed that the occasional tag team of Kavanaugh and Amy Coney Barrett seemed skeptical of Alabama’s arguments.

All I heard was Republican justifications for our continued use of medieval punishments, but I hope Millhiser is right.

What I Wrote

The most politically important case the Supreme Court heard this week was Trump v. Slaughter, a case that will determine whether Trump can fire administrators from independent federal agencies at will. The Republicans on the court sounded eager to give Trump this authoritarian power, thereby completing a long-held Republican goal of destroying the administrative state. I wrote about what will happen when they do this.

In News Unrelated to the Current Chaos

Last Friday, the World Cup, which will be played this summer in Canada, Mexico, and the United States, held its draw to sort all 48 teams in next year’s tournament. FIFA, the organization governing global soccer, turned it into a three-hour Trump rally.

FIFA is generally disgusting. Dave Zirin explains in The Nation that FIFA president Gianni Infantino is currently accused of aiding and abetting Israel’s war crimes in Palestine.

Infantino is also the guy who came up with the idea to create a FIFA “peace prize” and award it to Trump during the World Cup draw. He was so solicitous of Trump during the proceedings that I thought Trump was going to have to pay him hush money when the thing was over.

There are two likely explanations for Infantino and FIFA’s total prostration to Trump. One is that Infantino has long been rumored to be interested in launching his own authoritarian political career, somewhere in Europe, and he’s using FIFA as a springboard for those aspirations. The other reason is practical: Trump is a fickle madman easily capable of ruining the tournament set to be played in the country he now rules. But flattery will get you everywhere with Trump, and kissing his ass during World Cup warm-up events is one way to keep him from messing with actual World Cup events.

Here’s a fantastic YouTube video from the best American explicator of soccer, Zealand Shannon, which details everything that happened during the draw, and why. The Global South revolutionary in me wishes countries would just boycott this World Cup, but I know, practically speaking, that’s not going to happen. I mean, everybody went to freaking Qatar last time, so political righteousness is quite beyond the scope of international soccer. And in my more calm moments, I don’t actually think the athletes who’ve spent their entire lives dreaming of this opportunity should be punished just because one of the three host countries happens to be run by a racist nincompoop.

Still, I can’t say I’m looking forward to this year’s tournament. If the draw is any indication, it’s going to be drenched in disgusting Trumpism. My most realistic hope now is that when Trump shambles out to hand the winner their trophy, someone accidently kicks him in the balls.

***

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The Republicans on the Supreme Court are poised to take a major step toward their generational goal of restructuring the constitutional separation of powers. The court heard arguments on Monday aimed at taking away the independence of independent federal agencies created by Congress, turning them all into mere expressions of Donald Trump’s political and tyrannical will.

The case that will allow Republicans to do this is called Trump v. Slaughter. It’s nominally about Trump’s firing of Rebecca Slaughter, a person Trump himself appointed to the Federal Trade Commission in 2018. Joe Biden renominated her to serve a second term, but Trump decided to fire her when he returned to office. By statute, FTC commissioners can be fired only for cause, but the former reality-television personality made famous for firing people offered no cause. Slaughter sued to prevent Trump from firing her.

But this case doesn’t involve only the FTC. It involves almost every independent federal agency and, with them, the very constitutional structure of our government. Since the founding of our country, Congress has had the authority both to pass laws and create agencies charged with administering those laws. Congress did it in 1790 with the Sinking Fund Commission, which was responsible for discharging the national debt after the Revolutionary War (fans of the musical Hamilton should think of that commission as the thing Hamilton was actually rapping about in his battles with Jefferson). It did it in 2010 when it created the Consumer Financial Protection Bureau. It does it all the time. Independent agencies are often how Congress carries out its constitutional legislative prerogatives. If you can think of a federal regulation, it more likely than not originates from an agency created by Congress to administer a law passed by Congress.

Republicans have come to hate these independent, administrative agencies. They’re often staffed with experts and career bureaucrats who cannot be bullied by the latest tweet. I’d argue that the conservative legal movement has had four long-term projects since the 1980s: One has been to roll back the gains of the civil and gay rights movements; the second has been to take away the rights of women to control their own bodies; the third has been the homicidal Republican refusal to allow the country to protect itself from gun deaths; and the fourth has been to neuter the power of administrative agencies.

The Republicans have won on every front. Even before Trump reappeared last January and started firing everybody, the Republican court placed the administrative agencies directly under their thumb with the Loper Bright Enterprises decision. That case put the Supreme Court, not the experts or Congress, in charge of determining which regulations are truly necessary to carry out the law. It was decided 18 months ago.

Trump v. Slaughter will be the knock-out punch to what remained of the administrative state after Loper Bright. If Trump can fire anybody he wants, then the independence of the independent agencies is a farce, and their power to make regulations will shift from Congress (where the Constitution put it) to the executive branch. Trump already claims authority to fire anybody he wants in non-independent executive branches (like the FBI director working within the Department of Justice), so this case will just deepen one man’s control over all of federal government.

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May 2026 Issue

The legal doctrine the Republicans have invented to do this work is called the “unitary executive theory.” It’s not complicated. Republicans argue that the Constitution vests all executive power in the president, and only the president, which means that he has complete and sole authority over the executive branch. That includes the power to fire at his will anybody working in the federal government. He can fire agency heads like the head of the Consumer Financial Protection Bureau. He can fire independent commissioners like Slaughter. He can fire scientists and experts at Health and Human Services or the Centers for Disease Control. He can fire nonpolitical career civil servants who happen to be Black.

There are myriad legal arguments against the president having that kind of power. It is a literal power of a king to fire ministers and functionaries at will—a power that the sum thrust of constitutional liberal democracy tried to take away. If Congress can create an agency, it certainly has the power to insulate that agency from executive fiat. Moreover, many of the agencies do not solely exercise “executive” powers. Agency rulemaking and regulations are legislative powers, delegated to the agency by Congress, and they should not be subject to the whims of the throne. Sometimes, agencies use judicial powers—for instance when the National Labor Relations Board hears disputes between management and labor—that should also fall outside the made-up unitary executive theory.

But it doesn’t matter. In front of this Republican-controlled Supreme Court, laws and logic never actually matter. Trump has already fired all of these people, including Slaughter, with the initial, tacit approval of the Supreme Court through a September shadow docket decision. Trump v. Slaughter will make that approval explicit.

When the decision comes out (probably in late May or early June), the only thing still worth watching will be how the Republicans twist themselves into a pretzel to protect the Federal Reserve. For reasons (probably involving the Republicans justices’ own lust for money), the Republicans have tried to say that the Fed is a “special” regulatory agency that must still be kept independent from the whims of Trump and the unitary executive. It is logically inconsistent for them to protect the Fed and nothing else, but at oral arguments both Chief Justice John Roberts and alleged attempted rapist Brett Kavanaugh made noises about excluding the Fed from their larger ruling. They’ll make something up by the time they get around to writing the death warrant for the independence of all other “independent” agencies.

The naïve and hopeful liberal might think that the door swings both ways. If Trump can fire anybody he wants, so can the next Democratic president. This would open the door for the next Democrat in the White House to fire, say, every single MAGA employee of the federal government.

Unfortunately, history has shown that Democrats simply do not have the will or the fight in them to use their powers maximally, as Republicans do. Just look at Slaughter herself. She’s a Republican Trump-appointee to the FTC that Biden didn’t even have to fire; he simply could have nominated a Democrat to the commission when her term ended. Instead, Biden renominated her, because feckless appeals to bipartisanship is how Democrats roll. Democrats will not use the powers the Supreme Court gives to Trump, and the Supreme Court pretty much knows that.

But even if we somehow elect a Democrat with an actual spine, it still won’t matter. As I said, the court already neutered the power of administrative agencies to do anything Republicans don’t like with its Loper Bright decision. If Democrats use the unitary executive theory, fire all the Trumpers, and stack the agencies with commissioners to the left of Friedrich Engels, the court will just say that the actions of those agencies are unconstitutional. It’s a “heads I win, tails you lose” situation.

Where does this leave the administrative state? Broken and impotent, just like Republicans want it. We are witnessing a fundamental reordering of the federal bureaucracy far greater than anything Elon Musk and the deregulatory tech-bro mafia could hope to accomplish. Powers that liberal-democratic revolutionaries the world over fought to take away from absolute monarchs in the 18th and 19th centuries are being reconstituted under the American executive in the 21st century. Instead of being ruled by experts answerable to Congress, we will be ruled by cronies answerable only to the president.

And most people won’t care. Trump’s authoritarian destruction of administrative independence, aided by six unelected, unaccountable politicians in robes, represents one of the greatest failures of American-style democracy on record, and most people will not give a damn. Of the four pillars of the conservative legal movement, the destruction of the administrative state is by far the most popular, mainly because of the apathy of the people. Mass shootings are things people can see. The loss of rights are things people can feel. But the hollowing out of the bureaucracy sounds like a political science treatise detached from our everyday lives.

People will see and feel the effects of Trump v. Slaughter. They’ll notice it when their kids can’t get a vaccine because RFK Jr. fired all the people who could make it possible for them to get one. They’ll notice it when there’s uranium in their drinking water because the Trump appointed experts decided groundwater studies are too woke. They’ll notice it when a self-driving bus runs them over on a crosswalk because the Department of Transportation was looking for greater efficiency.

They’ll notice it when some future historian writes their definitive treatise, titled: “The Decline and Fall of the United States of America.”

It has been another week of unfettered moral depravity in the United States. Donald Trump held a Klan rally lightly disguised as a cabinet meeting where he railed against Somali immigrants. Pete Hegseth defended the cruel and illegal boat strikes that have murdered at least 83 civilians. Marco Rubio put forward a “peace plan” for Ukraine that amounts to giving Vladimir Putin everything he’s ever wished for. And saddest of all? Most people probably don’t even know any of it happened.

One of the most disturbing stories I saw this disgusting week highlighted new research from Pew showing that news consumption is on the decline across all political parties and age groups. The report, which was focused on adults under 30, found that only 15 percent of people in that age group follow the news “all or most of the time.” When they do, it should surprise no one, they consider the “news” to be whatever they come across on social media.

I can hardly blame them. The news is depressing. Given Trump’s entrenched cult following, it doesn’t feel like there’s anything that can be immediately done to stop him. Mainstream outlets are more interested in appeasing power than in holding it to account. And the “opposition party” is feckless (more on that later). I got sick over Thanksgiving, and during the uninterrupted days I spent lying in bed and praying for death, did I watch “the news”? No, I did not. I watched movies about space (Apollo 13 is the best movie that inaccurately features no Black people ever made), and allowed myself to get enveloped in the Lane Kiffin coaching drama. I wasn’t physically or mentally healthy enough to be informed about America for a week.

This country is a horror show, and a lot of people don’t like watching scary movies. I can’t blame them for looking away. Unfortunately, the filth will not clean itself up.

The Bad and the Ugly

• It was a busy week at the Supreme Court, with the justices hearing a number of significant cases, including one in which the Republicans appeared sympathetic to an anti-abortion group that is attempting to avoid transparency by shielding its donor lists.
• The court also heard arguments in an interesting case for which the justices’ partisan priors might not matter. It’s called Cox Communications v. Sony Entertainment, and it involves efforts by the music industry to hold Internet providers liable when users infringe on media copyrights. I don’t think Sony is going to win. Users uploading copyrighted content feels like an intractable problem.
• The third big Supreme Court case was Urias-Orellana v. Bondi. I featured this case in my Supreme Court term preview. The key legal question is whether rulings made by immigration judges are reviewable by federal courts. This issue is even more relevant now that Trump is trying to commandeer military lawyers, with no immigration training, to serve as immigration judges. Predictably, the conservatives on the court seemed eager to make the rulings made by these untrained officers final, without the constitutional protection of court review.
• Don’t forget the shadow docket. As I predicted in a prior newsletter, the Supreme Court allowed Texas’s racist maps to go into effect, temporarily overturning a lower-court injunction. The second shoe will drop later when the court determines that we are “too close” to the midterm elections for the court to do anything to prevent Texas from practicing electoral racism.
• US District Judge Beryl Howell ordered the Trump administration to stop warrantless arrests of immigrants in Washington, DC. My prediction: The Trump administration will not stop.
• The New York Times is suing the Pentagon over its new press rules, saying the government is violating the First Amendment. I’m worried about this lawsuit. The paper is right, but there are at least a few justices on the Supreme Court who have been interested in scaling back First Amendment protections for the press. This might give them an opportunity to do just that.

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May 2026 Issue

Inspired Takes

• Like everybody else, I read Joan Walsh’s expression of grudging sympathy for Olivia Nuzzi in The Nation. Like I said, America is a horror show, but the Nuzzi story is pulp melodrama that is soothing compared to the actual news.
• This is a great story in The Nation from Patrick Markee about how the homelessness crisis is being exacerbated by Trump. I had no idea that so many New Yorkers lived in tunnels and underpasses. And, to be entirely honest, I had no idea that the New Yorkers who do find shelter in tunnels and underpasses are regular, good people and not, you know, people who will stab you and then drag you to their underground lair where you can only hope to be saved by a mutated turtle.
• I was basically agnostic about artificial intelligence until my editor educated me on its disastrous environmental impact. You don’t have access to my editor’s texts, but you can read this piece from Juan Cole in The Nation about all the environmental harm the infrastructure for this technology is causing.

Worst Argument of the Week

Right now, Hakeem Jeffries is the worst argument for the proposition that Hakeem Jeffries should be speaker of the House. His performance this week has been awful, bordering on complicit.

First, the man gave Trump credit for “securing the border.” Then, he praised Trump for pardoning corrupt Democratic Representative Henry Cuellar, who had been indicted on charges of accepting $600,000 in bribes. He wrapped things up by telling the press that they should not expect the Democrats to pursue impeachment charges against Secretary of War Crimes Pete Hegseth.

The country is crying out for leadership against the violent, racist, and corrupt Trump administration. The country is desperate for leaders who will fight Trump on every ground: political, economic, legal, and moral. And Jeffries spent a week doing press hits for the man. Literal silence would have been better than what Jeffries did this week.

The problem with Jeffries is that he wants to be the leader of the Democratic Party, and that is a very different job from being the leader of the opposition party. It’s the difference between waiting for your turn at the wheel versus trying to break the wheel. Jeffries is not a revolutionary or a reformer. He’s not an activist or crusader. He’s just a careerist. He’s carefully and competently positioned himself to be this close to getting a promotion, and he’s trying desperately not to screw that up.

Jeffries exposes the problem with the “leadership” of the entire Democratic Party: Their posture in the face of fascism is not one of insurgency or resistance but one of parliamentarian games and political stunts. They occasionally talk like they know Trump and MAGA are totalitarian threats to democratic self-government, but they don’t act like it. Instead, they act like Trump is a normal American president and can be defeated through normal political means. Democrats want people out in the streets shouting “no kings,” but Jeffries wouldn’t dare throw Trump’s tea in the water, and he’d support the prosecution of anybody who did.

The people, throughout history, who lead anti-authoritarian movements are people who are willing to be jailed for the cause. They’re people who are willing to be killed by the very regime they’re opposing. Hakeem Jeffries is not one of those people. He’s just the moderate guy at the politburo, trying to distinguish himself from the “hard-liners,” hoping he’ll get a chance when the old man kicks the bucket.

It might work. Jeffries might well get the promotion he’s angling for. I will spend most of next year arguing that Democrats must retake the House and, therefore, that Jeffries must be the next speaker of the House in order to put some restraint on the fascist president. But Democrats like Jeffries will never defeat Trump, because Democrats like Jeffries are not willing to challenge the system that produced him. They’re just waiting for their turn to be in charge of that system.

What I Wrote

Pete Hegseth is a murderer. I wrote about all the laws that make that so. He should be impeached, regardless of what Hakeem Jeffries thinks.

In News Unrelated to the Current Chaos

So Lane Kiffin was the head football coach of the Ole Miss Rebels (a name I can’t believe they’re allowed to keep). He left the school last week to become the head coach of the LSU Tigers, a rival to Ole Miss, despite the fact that Ole Miss is slated to be in the College Football Playoffs while LSU is not. This has, understandably, angered Ole Miss fans, and many in the college football community are decrying Kiffin’s betrayal of the university, even though, in straight football terms, the LSU job is clearly the better one.

Kiffin got a seven-year, $91 million contract from LSU—a public university—which works out to about $13 million per year, making him the second-highest-paid coach in the country. With it, he immediately becomes the highest-paid public official in the state of Louisiana (although it is not at all uncommon for the football coach of the public university to be the highes-paid public employee in a state).

It’s interesting that this is happening in Louisiana, because the only reason the LSU job was open is because the school recently fired its last high-paid coach, Brian Kelly. The state of Louisiana still owes him $54 million.

After Kelly was fired, Louisiana Governor Jeff Landry threw a fit. He vowed that the LSU athletic director would not be allowed to offer such an expensive contract again, and that future contracts would not be guaranteed so as not to put Louisiana taxpayers on the hook for a football coach they’ve already fired. Landry is a Republican—and while you know I don’t like saying nice things about Republicans, Landry was exactly right on this point. The salaries of college football coaches (and basketball coaches) are completely out of whack with the public universities they work for. It would be one thing if all of the billions of dollars college sports generates were going back into the states, but they’re not. LSU is not funding levees in New Orleans.

With the hiring of Kiffin, it would appear that Landry’s directive was completely ignored by LSU. Not only did it hire a coach for $91 million; it gave him a fully guaranteed contract, and that contract was negotiated by the very same agent who represented the former coach. 

President Dwight D. Eisenhower once warned that even the president was relatively powerless  in the face of the military-industrial complex. I imagine Jeff Landry could now speak about the football-industrial complex. There appears to be no way for even the governor of a state to stop the madness when the football team needs a famous new head coach.

I’ve said multiple times: A presidential candidate who ran on getting corruption and graft out of college sports, allowing for fair competition while distributing the money generated by the sports more equitably, would win in a landslide. Unfortunately, I’m still waiting for a presidential candidate who runs on getting corruption and graft out of the White House.

***

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Pete Hegseth is a murderer. He meets all of the legal qualifications to be a murderer. He should be charged with murder for his role in killing unarmed civilians on boats in the Caribbean.

Hegseth claims that the murders are authorized because the United States is “at war” with… drug cartels and “narcoterrorists.” Since September, under Hegseth’s direction, the US military has conducted 21 strikes (that we know of) on boats in the Caribbean and Eastern Pacific Ocean. These attacks have killed an estimated 83 civilians. The term “civilians” is important, because these people are not combatants. They are not waging war against the United States.

For a certain kind of morally stunted MAGA sycophant, the administration’s claims that these 83 victims were involved in illegal drug running is enough of a justification for their deaths. But that is just not how the law works. The government cannot kill people unless they pose an imminent threat of violence. It cannot simply declare somebody a “narcoterrorist” (whatever the hell that means) and summarily execute them without trial.

The entire boat-strike operation is a murder conspiracy being carried out by the US government. Each one of these deaths is an execution without trial. You don’t need to go to the International Court of Justice in The Hague to hold Hegseth accountable. The guy is ordering hits on unarmed civilians he has deemed a threat without trial or jury. His actions are criminal by any definition of “criminal law.” The Department of Justice should charge him with crimes under the normal federal murder statute, and the DOJ should criminally charge all of the people willing to carry out his illegal, homicidal orders.

Hegseth, and a load of other MAGA Republicans, including President Trump, seem to think that calling this a “war” absolves Hegseth and the military of all accountability. That is also false. First, we’re not at war. Second, even if we were, there’s no proof that these boat victims are combatants in this purely hypothetical, undeclared war. And third, even if we were at war, and even if there were proof that the people in these boats were combatants, there are laws of war that should prevent these kinds of attacks.

On September 2, according to reporting from The Washington Post, Hegseth ordered a second strike on survivors of one of his boat strikes. Hegseth allegedly said “kill everybody” when authorizing the second strike. Hegseth denies that he said this (he and the White House now claim that Adm. Frank Bradley ordered the second strike… because the buck always stops somewhere else with these cowards), but he also wrote on Elon Musk’s Twitter: “As we’ve said from the beginning, and in every statement, these highly effective strikes are specifically intended to be ‘lethal, kinetic strikes.’ The declared intent is to stop lethal drugs, destroy narco-boats, and kill the narco-terrorists who are poisoning the American people. Every trafficker we kill is affiliated with a Designated Terrorist Organization.”

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This doesn’t sound like a denial to me. Hegseth effectively suggested that since the strikes were intended to kill, any person who survived an attack could still be killed in a secondary, mop-up attack.

Again, that is just not how the laws of war work. It is a war crime to kill defenseless people, even in a theater of war, after they’ve laid down their arms. George Washington University law professor Laura Dickinson spoke about this with Time magazine, and her quote puts it plainly: “In an armed conflict, the intentional killing of a protected person—someone who is a civilian or a person who is ‘hors de combat’ because they have laid down their arms or are shipwrecked at sea—is a war crime.”

What it all comes down to is this: If we’re not at war, Hegseth is a murderer; if we are at war, Hegseth is still a murderer. Hegseth and MAGA keep trying to throw up justifications to allow them to kill 83 defenseless people without evidence, and I’m telling you that the laws are designed specifically to prevent that from being OK.

Having established that the law regards Hegseth’s actions as murder, the next obvious question is, what is the law going to do about it? The immediate way to hold Hegseth accountable for his extrajudicial murders would be for Congress to impeach and remove him. Politicians from both parties have talked about conducting congressional oversight of the boat-strike operation, but given that Mike Johnson is in charge of the House, I can’t imagine those hearings going anywhere. Still, there are midterm elections coming up, and should Democrats retake the House, impeaching Hegseth must be a priority for the Democratic caucus. He’s out there murdering people, and removing him from office might be the only way to make him stop.

In a normal country, the Department of Justice would also get involved. But in our country, the DOJ is run by the same fascist stans who are praising the murders. Sadly, we can’t expect Pam Bondi’s DOJ to enforce the law.

Outside the United States, Hegseth could be held accountable by the International Criminal Court, which is responsible for prosecuting war criminals. The problem is, the US is not a party to the ICC. The US signed but never ratified the “Rome Statute,” which established the court. That decision was made by the George W. Bush administration, but successive administrations have refused to sign on, unwilling to put Americans at risk of international judgment. Hell of a “world’s greatest democracy” we’ve got going here. I would vote for a Democrat, any Democrat, who thought that perhaps the United States should be a party to international treaties. That being said, if I were Hegseth’s lawyer, I’d advise him to not travel to any law-abiding country.

Another option would be to use international tort law. The family of Alejandro Carranza, a Columbian fisherman who was a victim of Hegseth’s strikes, has filed a formal complaint against the United States—in which Hegseth is named as the perpetrator—under the Inter-American Commission on Human Rights, a treaty to which the US is a party. Unfortunately, that commission does not have the authority to impose penalties on bad actors—like fines or, what is needed most, imprisonment.

Domestically, the Uniform Code of Military Justice would have more teeth when it comes to holding Hegseth accountable. Again, even during actual wars, killing unarmed civilians is a crime. I have some hope that the military will do something to rein Hegseth in because, while Hegseth is primarily responsible for these killings, his orders put other military personnel at risk. Hegseth might be politically protected (for now), but every single service member involved in killing unarmed civilians (I’m looking under the bus at you, Admiral Bradley) could also be charged with a crime.

In fact, these military courts are my best bet for accountability for Hegseth and all his willing underlings—once there is a change in our regime. That is what happens (at least sometimes, on rare occasions) when crimes are committed. The regime that authorizes the war crimes never self-police. We have to wait until that regime is out of power.

When people like Senator Mark Kelly remind soldiers that they are not supposed to follow illegal orders, they are trying to help those soldiers. They are trying to save those underlings. They’re trying to remind them that “I was just following orders” is not a legal defense. Of course, we’d like to hold the commanders responsible. But each individual is also responsible for their actions. If you’re ordered to kill a defenseless person clinging to the wreckage of their boat that you just bombed, and you do it, you too can face justice, even when all the political appointees who ordered you to do it are back in their jobs on Fox News.

Pete Hegseth is putting everybody in the US military in a terrible position, including himself.

He is a murderer. The law might not be able to do anything about it now, but the law has a long memory. There is no statute of limitations on murder.

The Republicans’ plan to gerrymander their way to holding on to the House took a blow this week when a three-judge panel struck down Texas’s new congressional redistricting map. The map, ordered by President Trump, sought to create five additional congressional seats for the GOP. US District Judge Jeffery Brown—a hardcore Republican appointed by Trump—struck down the map on the grounds that it was racially gerrymandered.

Mark Joseph Stern wrote an excellent breakdown of Brown’s 160-page opinion. The essential takeaway is that Harmeet Dhillon—Trump’s wholly unqualified pick to head the Department of Justice’s Civil Rights Division—irrevocably screwed up the case. She flatly misread a prior court opinion (either through maliciousness or gross incompetence) and ordered Texas to redistrict based on race. Brown argues that Texas is allowed to gerrymander for any reason other than race. Texas could have said, “We are moving districts around to give Republicans an insurmountable edge in the election” and that would have been fine. Instead, under Dhillon’s directives, Texas moved districts around specifically because of the race of the people who live in them. It’s the only thing Texas could have done wrong.

Unfortunately, as everybody now should know, lower-court opinions don’t really matter anymore. The Supreme Court has crowned itself the only court in the country that counts. The Texas map helps Republicans, and helping Republicans is the only thing the six Republicans on the Supreme Court care about. Judge Jerry Smith—a Ronald Reagan appointee—wrote a truly unhinged 101-page dissent from Brown’s opinion. The dude starts his dissent quoting Bette Davis, says that the majority opinion was designed to help George Soros, and closes with “Darkness descends on the Rule of Law.”

Judge Smith is 79 years old, by the way, and has been on the bench for 38 years. This seems like a good time to reiterate my objection to lifetime appointments.

The reasoning, to the extent there is any, in Smith’s dissent boils down to the fact that Texas officials said they were not being racist. Dhillon effectively ordered them to be racist, but Texas super double promised they weren’t doing exactly what she told them to do. According to Smith, that is the only evidence anyone needs to rule that the map is not a racist gerrymander.

While that argument is unpersuasive to me, it will certainly be the peg that Chief Justice John Roberts and his cabal of Republicans try to hang their hat on. Roberts has a long history of requiring racists to self-report before he’s willing to acknowledge that racism exists.

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So what’s the play? My best guess is that the Supreme Court stays the lower-court order, thereby allowing the Texas maps to take effect pending a full hearing. By the time they get around to that hearing, the court will say that we’re too close to the midterm elections to require Texas to change its racist map. That will lock in the Texas map for the upcoming midterms. It’s possible that the court will eventually rule that the Texas map is unconstitutional (again, Dhillon is very bad at lawyering), but that will happen sometime after Texas hands Republicans five additional seats.

It’s frankly amazing that a Trump judge struck down the Texas map in the first place. But Judge Brown was just applying the law. The Trump judges on the Supreme Court did not get to where they are by applying the law. They got there by giving Republicans what they want. I do not expect them to stop now.

The Bad and the Ugly

• Texas isn’t the only state facing lawsuits over its mid-cycle redistricting plan. Lawsuits have been filed in California and North Carolina over their new maps. The people just want elections to be fair but, like bamboo in a carefully manicured courtyard, the gerrymanders keep coming. You can hack at them but never halt them, and eventually gerrymanders are all anyone sees. Eventually, inevitably, inexorably, the public is… bamboozled.
• Trump signed the bill calling for the release of the Epstein files, but it turns out the bill contains numerous exceptions that will, no doubt, shield Trump from his public reckoning. Why all the subterfuge? It’s as if Trump got down on his knees and carefully arranged all of the shoes in his Epstein closet, for love, and now can only hope he didn’t leave one boot buckle out of place.
• The grand jury that indicted James Comey never actually saw the final indictment, which is a huge legal problem that should invalidate the entire process. Like a Herschel backpack that never quite closes, the Trump administration can’t even carry out political retribution properly.
• The Seventh Circuit Court of Appeals sided with the Trump administration and ICE over its use of tear gas to break up protesters to ICE. “Amor fati, the Stoics advised—love your fate.” Big, globulous tears, provided by ICE, will surely make a thousand flowers bloom… before those flowers are killed by bamboo, of course.
• A federal bankruptcy judge approved a new settlement in the Purdue Pharma class action lawsuit that will see victims of the opioid marketing scam collectively receive $7.4 billion. Unlike the old settlement, which was thrown out by the Supreme Court (I wrote about why, here), the new one does not immunize the Sackler family from future lawsuits. If I swallowed every drop of water from the tower of the Sackler family’s comeuppance, I would still thirst for more.
• I’m… sure I’m missing one big story from this week. Something about minor presidential candidates and the women who love them? Or maybe it’s a story about the fact that a complete lack of journalistic standards somehow doesn’t exclude you from having a job in journalism as long as you’re part of the inside-the-Beltway journo clique? 

Inspired Takes

• For me, the height of journalism is when it makes me think of something that I never thought of before. I’m an educated person, and I have thought of a lot of things, but this piece in The Nation from Bryce Covert hit on something I’ve truly never considered: Why do we take children away from their parents when their housing isn’t safe and habitable? Shouldn’t we demand that landlords provide safe and reasonable housing for children instead of taking them from their parents?
• I also never think about crossword puzzles. Full disclosure: I hate crossword puzzles. I think about words for a living. I don’t want to spend my free time teasing that part of my brain: I need it fresh for work. Also… I can’t spell. But anyway, Natan Last’s piece in The Nation about the politics of crossword puzzles was fascinating. 

Worst Argument of the Week

This week, aboard Air Force One, Donald Trump deflected a question about the release of the Epstein files by telling the female reporter who asked him a question, “Quiet! Quiet, piggy.”

In response, the White House Press Corps did… absolutely nothing. There was no outrage; there was no follow-up; nobody told Trump what he said was inappropriate; and even days later, his press entourage is still acting like nothing out of the ordinary happened.

I know Trump’s crass and boorish behavior is baked into the system at this point. I know that his misogynist ravings are titillating to those who support him. I know that Trump can deflect from a sex scandal with sexism, and it will not cost him a single vote.

I also know that if my boss said to a colleague I worked with, even one I didn’t like, “Quiet, piggy,” I’d tell him to go fuck himself. And I know that if I saw someone else’s boss answering a question that way, I’d tell that boss to go fuck himself. It has been my cherished privilege to have had precisely zero jobs I wouldn’t be willing to lose over that comment.

But here’s the thing, Donald Trump is not the boss of the White House Press Corps. Those journalists work for publications, and in a more consequential way, they work for us. They’re on that plane to be our eyes and ears. When Trump tells one of them “Quiet, piggy,” he’s really telling us to sit down and shut up.

By taking Trump’s comment without immediate or long-term reproach, the journalists on that plane failed at their jobs. Their job at the moment was to stand up for the American people (to say nothing of their colleague), and not one of them did.

Trump is gross, but the press is pathetic.

What I Wrote

I wrote about how Harvard needed to part ways with the always-wrong Larry Summers. It should have done so as far back as 2005, when he made his first set of famously sexist comments, but now, in the wake of the revelations about his e-mail correspondence with Jeffrey Epstein, it has no choice. After my story went up, Summers said that he was “stepping back” from teaching while Harvard investigates his gross conduct. I would very much like to tell myself I played some small role helping this along, but the true credit goes to the student journalists at The Harvard Crimson, who dug into his e-mails and exposed not just who Summers was talking to but what he was talking about.

I wish I could replace every member of the White House Press Corps with the students at college papers across the country. They’d do a better job.

In News Unrelated to the Current Chaos

Illinois congressional candidate Kat Abughazaleh plays video games on livestream to raise funds for her race and interact with potential voters. It’s a great, modern campaign technique that I wish more people would adopt. She plays a lot of different games, but this week she played Papers, Please.

I can’t believe she went there. Papers Please is a 2013 video game where you play an immigration agent at the border crossing of a dystopian country. Your job, in the game, is to determine who is allowed to come into the country based on their passport and other supporting documentation. The game throws impossible choices at you, often forcing you to deny entry to good people who don’t have the right forms. You can try to fudge it, sometimes, and let in people you “shouldn’t,” but if you do that too often or in the wrong way, you might get fired and hit the dreaded “game over” screen.

All of those horrible choices have stakes because you, the player, are incentivized to deny people entry to keep your terrible job. You get money for denying people entry, and you have to use that money to pay rent, and feed your family (whom you are supporting through this immigration job). Another way to lose the game is if your family goes into debt. That can lead some players to take bribes from the people who want to get in.

To be clear, Papers Please is not some kind of right-wing fantasy play made to entice people into signing up for ICE. I could prove that simply by pointing out that it’s a largely text-based game, and we know ICE officials don’t like to read. More to the point, the developer of the game, Lucas Pope, didn’t set out to make right-wing propaganda so much as a game with a “core empathetic message.” He recently said of his 12-year-old game: “It blows my mind that it’s only becoming more and more relevant over time. Honestly, it’s a tragedy.” My read on the game is that it’s trying to humanize people who are mainly talked about as statistics. That’s good art. It’s not a game that’s supposed to make you feel good about anything.

Given where we are in this country, it is a hell of a choice to play live, on stream, as a Democratic political candidate. You’d expect neither party to touch this game with a 10-foot pole—Republicans because it makes them look bad, Democrats because it makes them feel bad.

Abughazaleh played it straight, making choices such as “sorry guy, I have to feed my kid,” —which is in keeping with the mechanics of the game—and telling her viewers to “donate if you are also trying to feel chill in this fascist hellscape,” a reference to both the game and our actual country.

I would never play Papers Please, even privately. One critique of the game that I agree with is that it’s supposed to make the player feel like they’re part of the problem, which is not something I want to be reminded of in my free hours. At the same time, by gamifying the problem into a set of robotic “must win” choices, it takes the sting out of the morally horrible decisions the player is encouraged to make. That’s a big “no, thank you” from me. I’d… rather do a stupid crossword puzzle than ponder about whether I should separate a family at the border.

If Abughazaleh ever wants to play something where we can combat our dystopian enemies instead of working for them, she should hit me up. Surely we could just play Arc Raiders and fight the evil and oppressive AI. Or maybe we just load up Baldur’s Gate 3 and try to fight the worm that was in RFK Jr.’s brain? I play games to do what I can’t do in the real world: win, and look hot while doing it.

***

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Why does Larry Summers still have a job? Why does Larry Summers keep getting hired for jobs? What does Larry Summers have to say or do to prove to the world that he is unfit for having jobs?

Sadly, these are not simple questions. Larry Summers, former treasury secretary, former president of Harvard University, former head of the National Economic Council, is once again embroiled in controversy. Of course, with Summers, “embroiled in controversy” doesn’t tell you enough. Summers appears to be caught in an eternal battle between his mouth and his d*ck to see which can produce the most fireable offense. This time, the two forces have aligned in a series of newly released e-mails between Summers and his longtime friend, confidant, and sexual harassment “wingman,” Jeffrey Epstein.

Summers’s friendship with Epstein was already known. But e-mails released by the House Oversight Committee show the depth of their correspondence and relationship. While most journalists (including me) got stuck on the e-mail where Summers belittled sexual harassment and then told Epstein in all-caps “DO NOT REPEAT THIS INSIGHT,” the fierce reporters at The Harvard Crimson dug into all of the messages between the two men. Their report shows how Summers wanted to pressure a woman believed to be Chinese macroeconomist Keyu Jin into a “relationship.” Jin was a 2004 Harvard graduate (meaning she graduated while Summers was still the president of the university), who got her PhD in 2009.

By 2018, Summers was referring to her as a “mentee” in e-mails to Epstein, while the men gave her the nickname of “peril” (an apparent reference to “yellow peril,” because these men are the worst our society has to offer). The men discussed at length Summers’s best options to use his influence and position to make her have sex with him. The Crimson reports: “Summers went on to describe what he saw as his ‘best shot’: that the woman finds him ‘invaluable and interesting’ and concludes ‘she can’t have it without romance / sex.’” Summers and Epstein were still e-mailing about the woman… right up to the day before Epstein was arrested.

Anybody with a shred of moral decency would assume that Summers has been fired by now. Like, you can’t just be e-mailing the most famous sex offender in the world about how you intend to use your professional position to make a woman have sex with you, and then keep that professional position, right?

Well, the astute reader knows that Summers has not been fired. After the Crimson’s report, Summers apologized for his relationship with Epstein and said that he is stepping back from his public commitments in “an effort to rebuild trust,” but he’s not leaving his actual teaching job at Harvard University. Summers is teaching five classes this semester, including two large undergraduate courses. Apparently, this is still going to happen, despite calls from Massachusetts Senator Elizabeth Warren, a former Harvard professor, for Harvard to get rid of him.

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It’s unlikely Summers will voluntarily resign his position. After all, he seems to think that having an impressive job with power over young people is the only way he’ll ever get laid. He’s also not really sorry for what he said. Just check out what he’s apologizing for: “I am deeply ashamed of my actions and recognize the pain they have caused. I take full responsibility for my misguided decision to continue communicating with Mr. Epstein.” He’s apologizing for communicating with a known sex offender, not for taking the known sex offender’s counsel on how best to bang his mentee.

Of all the jobs Summers has—professor, Bloomberg columnist, OpenAI board member—teaching young students is the job that he should never be allowed to do again. That’s been true since at least 2005, when he suggested that women are genetically worse at math and science than men.

Imagine you are a woman in an economics class taught by Summers. You have a question that was not addressed in your 500-person lecture, and you know that the boys in your class show up to office hours with the famous professor. Do you go? You know the man thinks you’re dumber at a genetic level than your male peers. You now suspect that he’ll help you only if he thinks he can use that help to get into your pants. Do you really want to ask Larry Summers your question? Or are you just going to ask ChatGPT, powered by Larry Summers’s failed economic theories, to tell you why ChatGPT needs a public bailout?

Harvard does a disservice to every woman at the university when it employs guys like Larry Summers and trots them out to lecture. And, yes, as I write that sentence, I can feel every woman who has ever attended Harvard University looking at me like my name is Christopher Columbus, because “guys like Larry Summers” are legion. The hypothetical I just spun is a hypothetical only to me and other guys. It’s the lived reality of most women, at most universities, now, then, here, and everywhere. Women are constantly forced to answer the question, “How do I interact with a male professor who probably thinks I’m dumber than his boy students and will probably try to condition his help on ‘romance/sex?’”

Larry Summers still has jobs because Larry Summers is exceedingly common. He’s not an outlier—he’s the freaking norm. He’s a guy in every C-Suite, on every hiring committee, in every mailroom. He is a man who has power and believes that he is entitled to convert that power into sex. That is such a standard way for men to operate that even other men who do not behave that way treat guys who do as normal and legitimate.

To put that in simple terms so that Larry Summers is able, genetically, to understand it: Summers is a tax this society places on women. He is their extra cost of doing business. And most men are willing to let them pay it. After all, most men know the tax means that they too can benefit as long as they retain some professional power.

Why does Larry Summers still have a job? Because other men think he did nothing wrong. Because other men do the same thing he did, just without memorializing it in e-mails to a famous sex offender. Because other men think that power entitles them to harass and pursue. And because until a few days ago, Larry Summers was just one of those “other men” making decisions to hire and platform men like Larry Summers.

Update: Since this article went to press, Summers has resigned from the board of OpenAI, and Harvard has announced that it’s opening an inquiry into his Epstein connections.

The SNAP saga is over for now. Kind of. The Trump administration used the government shutdown to cancel funding for the Supplemental Nutrition Assistance Program. The move would have left 42 million people hungry for the holidays. The administration was sued, and lost in the lower courts (as it almost always does), but the Supreme Court swooped in and defended Trump’s cruel policies (as it almost always does). The high court ruled that Trump could ignore lower court orders and cut off food assistance, allowing people to suffer and starve, pending a full Supreme Court hearing at some later date.

But then, the shutdown ended (more on that later). On Thursday, Solicitor General John Sauer officially withdrew the administration’s appeal. Sauer says the new budget deal “fully funds SNAP through the end of the fiscal year.” The new deal renders the previous lawsuits “moot,” meaning the court does not have to decide on whether Trump can let millions starve.

Crisis averted? Not quite. While the budget deal removes the immediate specter of Trump cutting off SNAP for 42 million people, lawsuits about other changes Trump wants to make to the program continue. Before the shutdown, Trump was poised to expand the work requirements for SNAP, a move that will churn millions of people out of the program and condemn them to empty tables this winter. Lawsuits trying to stop those changes are still pending.

I will never understand why we’re not all able to agree that we should provide food assistance to  hungry people. We are the wealthiest nation on earth. Nobody should be hungry (also, nobody should be homeless, and nobody should be unable to receive medical care). I will never understand why millions and millions of well-fed, taxpaying Americans think that starvation is an acceptable consequence for the failures of capitalism.

We do not live in the state of nature. We are not chimpanzees. Thanks to advances in agricultural science—things that would be viewed as literal miracles for 99 percent of human history—we have enough food for everybody. Expecting the government to provide food assistance to those who need it is not a political position; it’s a moral one.

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And yet, we have to battle over the extension of SNAP benefits every single year a Republican is in charge, and most years Democrats are. Hunger should be a solved issue in the United States. But it never will be. Because bad people exist and hold power.

The Bad and the Ugly

• Google has chosen to help Trump conduct illegal mass deportations. It’s hosting software that allows ICE to use facial recognition technology to identify immigrant targets, but it’s removing software that helps immigrants and activists track where ICE is on the prowl.  
• The Supreme Court will likely rule that prison officers can forcibly shave the heads of people in prison, in violation of their religious beliefs, without having to pay damages. That might surprise people who think the Republican court is all about religious freedom, but the plaintiff in this case is Rastafarian—and people who have been paying attention know that the court’s respect for religion only applies to the Jesus crowd.
• The head of the Boston University Young Republicans has been bragging on social media about how he called ICE to urge it to apprehend nine immigrants working at a car wash. All of the people had work permits but were detained and disappeared before they could go to their lockers to show their documentation. The BU student is from the UK, by the way.
• Speaking of the UK, the Independent Workers Union of Great Britain has filed a complaint against Rockstar Games, makers of the immensely popular Grand Theft Auto series, over alleged union busting. Rockstar fired 30 workers for allegedly sharing “confidential” information about the upcoming video game in a Discord channel. But the channel was being used by workers and union reps fighting for better conditions at the company.
• To round out our British news segment: Trump is threatening to sue the BBC over its editing of his January 6 coup d’état speech. The BBC apologized and those responsible stepped down, but it hasn’t put more money in Trump’s pockets, so he’s angry. If I were a conspiracy theorist, I’d say there is a secret plot, hatched by Stephen Miller and Steve Bannon, to make sure Great Britain is just as shitty as the United States, so that people like me, who only speak one language, have one place fewer to go.

Inspired Takes

• Look, I’m not going to write a whole thing about the Epstein files just because the “age of consent” is a confusing legal concept for Megyn Kelly. But as The Nation’s Chris Lehmann explains, this should be really, really bad for Trump and the cabal of pedo-curious people who surround him.
• This piece in The Nation, from former John Fetterman consultant Leah Abrams, really captures the utter betrayal that is the Fetterman experience.
• Adam Serwer explains the intersection of Dungeons & Dragons, racism, and Elon Musk. It’s a fantastic piece, and it scratches at something that has been one of the greatest disappointments of my adult life: the way “nerd culture” has been completely co-opted by racists and misogynists. See, when I was a kid, being into things like D&D and Star Wars and video games felt almost subversive. It was, for me, a rejection of toxic masculinity and an opportunity to find community with guys who weren’t on the football team (even though I was totally on the football team) and rejected the prevailing “might makes right” tendencies of adolescent boys. But now, as many of these once-nerds have risen to become captains of industry and the purveyors of culture, I see that the “nerds” were no better or different from the “jocks.” They were not inspired by a greater or deeper respect for women or vulnerable people. They wanted to do all the horrible things the other guys wanted to do; they just weren’t athletic enough to make the football team. There were signs: The emotional climax of the movie Revenge of the Nerds is a literal rape scene. I didn’t understand how horrible it was at the time (in fairness, I was probably 8 when I saw the movie). I didn’t believe “men are shit” when I was 15, or even 25. But I do now.

Worst Argument of the Week

The brain-droppings of Senate Democrats. Specifically the brain-droppings of the eight Democrats who helped the Republicans end the shutdown, but really almost all of them, including leadership. It is difficult to identify a group of people as singularly spineless as Senate Democrats, unless you expand your definition of “people” to include Trump cabinet appointments.

To put everything in the broadest possible context: Senate Democrats refused to give Republicans the votes they needed to fund Donald Trump’s dread priorities unless the Republicans agreed to include basic protections for federal workers and healthcare subsidies. Republicans refused to compromise and shut down the government. After 43 days, with Republicans still refusing to compromise, Democrats gave up the fight, and Republicans got everything they wanted. The end.

The arguments for this feckless display range from “Trump was too strong” to “But the Republicans promised to talk with us in the future.” I’ve fought harder and longer to defend my lunch money than these Democrats fought to defend the country.

Still, I long ago came to expect Democratic cowardice. What’s really shocking here is the political malpractice of it all. Democratic candidates just ran the table in an off-year election. The party achieved major victories up and down ballots all over the country. That is all the political press should be talking about (that and, you know, the president’s close relationship with a pedophile). We should be getting story after story about how Democrats are “on the march” and that the resistance to Trump is stronger than ever.

Instead, we’re being treated to another week of stories about how the Democrats are weak and pathetic. Because they are weak and pathetic. Not all of them, of course, but more than enough to drag the entire project down to their boot-licking level.

When future alien archeologists discover the fall of America in the early 21st century, they will not make a distinction between Democrats and Republicans. They’ll just see the difference between the cowards and the courageous.

What I Wrote

I wrote about how the Democrats’s love of the Senate filibuster was the hidden reason they caved and gave Republicans everything they wanted. After I wrote it, Senator Tim Kaine opened his complicit mouth and pretty much confirmed everything I said. 

In News Unrelated to the Current Chaos

Kim Kardashian failed the California bar exam. There’s no shame in that. The California bar exam is hard: Only 54.8 percent of people who took the July 2025 exam passed. Passing the bar is not an indication of intelligence or of lawyering skills. Instead, like all standardized tests, the test is really about how good you are at taking standardized tests.

I wouldn’t ordinarily note one person’s struggles with a notoriously hard test but for the way Kardashian has approached this particular challenge. Kardashian, who does not have a bachelor’s degree, also did not attend law school. She’s eligible to sit for the bar through California’s “Law Office Study Program.” It allows people to apprentice themselves to a lawyer for a number of hours, and then try to take and pass the test if they can hack it. It’s a very old way of becoming a lawyer, even though the only person I know of who has ever done it that way was Abraham Lincoln. Again, I impute no shame to people who cannot afford to go to law school so they instead try to work themselves into the profession.

But here’s the thing: Kim Kardashian can afford to go to law school! Money is not her problem. She keeps running around social media jabbering about how “committed” she is to following her dream, but somehow that commitment doesn’t extend to… going to class?

Speaking of money, it is wildly unclear why Kardashian needs to become a lawyer in the first place. She can afford attorneys. She can afford armies of attorneys. There is no legal issue she cares about that she cannot hire really good lawyers to pursue. It’s all well and good for a rich person to want to educate themselves, but, again, Kardashian is not willing to educate herself at any of the literally hundreds of schools designed specifically to educate her. The whole thing is this weird vanity project where she seems to want the status of “being a lawyer” without, you know, the education usually associated with that title. It’d be like if I wanted to become an astronaut but didn’t want to learn all that pesky math and physics stuff. “I played 1,000 hours of Kerbal Space Program, now let me fly the rocket ship.”

As my friend Joe Patrice explains, all of this is kind of frustrating, because Kardashian actually does good things in the legal space with her money and celebrity. She has been a stout advocate for criminal justice reform and has literally freed people from prison. I’d take her as a senator any day over, say, Tim Kaine, and I’m not joking about that. She doesn’t need to pass a stupid test to help.

There are thousands and thousands of lawyers who did go to law school, did pass the bar, and do want the same things Kardashian wants. But they can’t make a good living—one that pays for their massive law school debts—while working in criminal justice reform. I know some of these people. They end up as insurance lawyers or bank lawyers or tort lawyers, because that’s where the money is. Kardashian could hire some of these people—at wages that allow them to pay back their debts—and be a more righteous force for good than she ever could be with a silly “Esquire” after her name.
I don’t understand celebrity culture, and I could never put myself in the mental headspace of a person who is famous for being famous. But if you are a wealthy person reading this, and you are thinking of becoming a lawyer to join the front lines in the fight for whatever you care about, my advice is “don’t.” Hire the lawyers. Pay them well. Then tell them what you want them to do. That is the highest, best use of your time and money. Leave studying “law” to those of us whom… nobody wants to see in a sex tape.

***

If you enjoyed this installment of Elie v. U.S., click here to receive the newsletter in your inbox each Friday.

There were only ever two ways the government shutdown was going to end. Option one was for Democrats to cave in and give Trump and the Republicans everything they wanted. Option two was for the Republicans to kill the filibuster and get everything they wanted. Anybody who thought Republicans would compromise some of their positions for the good of the country was foolish. Republicans do not compromise; they do not care about the good of the country. Republicans break things and blame others for the mess they leave behind. That’s all they know how to do.

Somewhat predictably, eight Democrats in the US Senate chose the former option and folded like cheap chairs. The statements drooling out of the mouths from these treacherous Democrats are beyond pathetic. Maine Senator Angus King said, “Standing up to Trump didn’t work.” New Hampshire Senator Jeanne Shaheen said, “Hopefully the Republicans may hear us.” I’m reminded of The Onion’s headline from Trump’s first term “GOP Lawmakers Watch Silently As Trump Strangles Each Of Their Loved Ones In Turn.” The current crop of Senate Democrats makes the Kardashians look like freedom fighters.

On the surface, this latest Democratic capitulation feels like the normal level of political malpractice from a party that seems genetically incapable of fighting fascism. “Democrats Cave In to Republican Demands” is the “dog bites man” story of our broken politics. It’s not even news anymore.

But at a more fundamental level, this catastrophe is born out of the Senate’s simple refusal to allow democracy to take place. It has been brought to us, at least in part, by the Democrats’ allegiance to the antidemocratic Senate filibuster.

The filibuster allows any senator to extend debate on a bill, indefinitely, preventing it from coming up for a vote. To end a filibuster, the Senate must “invoke cloture” on a debate, and for that there needs to be 60 votes. The vote threshold to invoke cloture is not mandated by Article One of the Constitution. It is just some crap the Senate made up to enhance gridlock, avoid democracy, and make senators in the minority party feel like they are super-special snowflakes.

I’ve written before about how the filibuster is antiquated and pointless. People say it’s there to protect the rights of the minority party, but the entire antidemocratic structure of the Senate already does that. The chamber is literally designed to give outsize power to low-population states. The filibuster just takes an antidemocratic body and makes it worse.

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I’ve also written about how the filibuster as currently practiced is the very worst form of the privilege. Back in the day, you could only filibuster by talking on the Senate floor until you were too exhausted to go on. Moreover, a filibuster used to shut down all other business in the Senate: Each filibuster stopped all 100 members of the Senate from debating or voting on any other bill until cloture could be invoked. Today we have what’s called the “procedural filibuster.” The minority party doesn’t have to hold the floor, and the Senate can continue with other business while a filibuster is ongoing. It makes the filibuster cheap. The minority party can always do it, and since its members pay no price for doing it, they almost always do it. It makes 60 votes the de facto requirement to pass a bill, instead of 51 votes as democracy intended.

It is this archaic, antidemocratic, poorly instituted Senate tradition that the Democrats didn’t want to give up during the shutdown. The Republicans have 53 votes in the Senate, plus the senator from Copaganda, John Fetterman, who will vote however the fascists tell him. That is more than enough votes for them to pass whatever legislation and budget they want to without help from the Democrats. The only reason the Republicans needed Democrats to end the shutdown is because of the filibuster, and the Republicans could have gotten rid of the filibuster (via a simple majority vote) at any time they felt like it.

Republicans have done it before. The filibuster can no longer be invoked for Supreme Court appointments. Mitch McConnell killed it (after Harry Reid killed the filibuster for lower-court appointments) to get Neil Gorsuch on the court in the seat McConnell stole from Barack Obama. If Republicans could see their way clear to ending the filibuster in order to give literal lifetime power to Republican operatives on the Supreme Court, they could surely do it to lift the shutdown.

Indeed, Donald Trump ordered Republicans to kill the filibuster just last week. Republican Senators said “no,” because the filibuster is incredibly useful to them when their massively unpopular ideas land them in the minority, but how long would Republican senators have held the line against Donald Trump? Eventually, I believe, the Republicans would have broken. Republicans talk tough when Democrats are involved, but they’ve never stood up to Trump for more than a couple of weeks.

Now we’ll never know. Now, instead of having the Republicans own every awful thing in their budget, Democrats have given them cover. Now, instead of Republicans having to show their belly to Trump, Democrats have once again shown their belly to him.

I know some Democrats are worried about what Trump will do with a Republican Senate unrestrained by the filibuster. Those are legitimate concerns. One maxim I’ve internalized during the Trump era is: “It can always get worse.” Whatever I think the Republican Senate would do is not as bad as what they’d actually do.

But the sad reality of our times is that Democrats would be better off, politically, if Republicans were free to do their absolute worst, instead of Democrats’ meekly running behind them trying to mitigate harm. That is because Democrats are fighting an asymmetric war. Again, all Republicans know how to do is smash things. They don’t need things to “work.” They don’t need to compromise. Republicans are not trying to build a house; they’re trying to burn one down.

The Republican project is a lot easier to accomplish than the Democratic one, and the filibuster only serves to help them do it. When the Republicans have a majority, they can pass what they want with Democratic help—because there are always enough pathetic Democrats willing to play handmaiden to whatever awfulness the GOP can dream up—or they can do nothing and watch the world burn. When they’re in the minority, the Republicans can do nothing and watch the world burn, or they water down whatever Democrats try to pass and prevent them from actually fixing any of the problems the Democrats should be fixing.

The filibuster is just a “win now” button for Republicans. It doesn’t force them to compromise, it instead rewards them for obstinance.

Democrats would be better off without it—even when they are in the minority. Democrats are hanging on to an antidemocratic Senate tradition, and all they have to show for it is continually getting punked by Republicans every time it matters.

Think of it this way: The shutdown ended, and eight useless Senate Democrats had to run onto TV and explain themselves in the most pathetic and ruinous ways possible. You know who didn’t have to run to the talk-box? Republicans. The 53 people who actually wanted to pass Trump’s budget didn’t have to go on TV and explain why and didn’t have to apologize to America for putting us all through their governing tomfoolery. They burnt down the house, and didn’t even have to own the ashes, because Angus King showed up to be a cowardly loser crying about how Donald Trump was just too strong for him.

The filibuster needs to die. I was hoping Republicans would kill it, because I know that Democrats lack the willpower and vision to do what is necessary. But it turns out that Democrats don’t even have the strength to shut the hell up and let Republicans blow themselves up. Democrats are falling on a grenade for the Republicans, and telling themselves they had no choice.

As Voltaire might say: If Democrats didn’t exist, it would be necessary for Republicans to invent them.

The Hatch Act of 1939 prevents employees of the executive branch of government from engaging in partisan political activities while performing their executive functions. To put that more simply, the Hatch Act prohibits campaigning on the people’s time. The law exempts the president and vice president from this restriction (which makes sense, as nearly everything the president says is some form of politicking), but the employees of the federal government, including the political appointees, are supposed to at least try to look like they’re governing instead of pushing partisan propaganda.

It should come as no surprise that the Trump administration repeatedly and flagrantly violated the Hatch Act during its first term in office. It should also come as no surprise that the administration refused to enforce the act when it came to its own people. When he took the helm of the DOJ, Attorney General Merrick Garland could have prosecuted Hatch Act violations from the previous administration, but that would have looked too much like doing something, to ol’ Merrick the Meek.

Freed from the specter of consequence or accountability, the Trump administration 2.0 has paid less attention to the Hatch Act than a NASCAR driver pays to the speed limit. Entire government websites have been turned into Republican state propaganda. And the shutdown has only made things worse. This week, the Department of Agriculture, which oversees the Supplemental Nutrition Assistance Program (SNAP), squarely blamed the Democrats for the impending cancellation of food assistance.

The charge is not true. I wrote last week about Trump’s plans to greatly reduce SNAP benefits— plans Trump put in place long before the shutdown. But the point is that this kind of flagrant partisanship is outlawed by the Hatch Act. The Agriculture Department is not a campaign arm of the Republican Party. It should not be allowed to run an attack ad on a government website.

But nobody is going to hold USDA Secretary Brooke Rollins accountable. Nobody is going to hold Homeland Security Secretary Kristi Noem accountable for her Hatch Act violations either. Nobody is going to apply ethical standards to the Trump administration, and that includes the Democrats (should they ever be allowed to hold power again), who seem to have an aversion to holding previous administrations accountable for their crimes.

We’re not a nation of laws. We’re a nation of suggestions that Republicans are free to ignore.

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The Bad and the Ugly

• With the government still shut down and poised to end SNAP benefits, New York Governor Kathy Hochul declared a state of emergency because millions of New Yorkers are about to lose the ability to adequately feed themselves and their families. This will be the first time ever that a government shutdown has ended food assistance.
• A coalition of 25 states and the District of Columbia sued the Trump administration for withholding SNAP benefits.
• The Urban Justice Center sued the Department of Agriculture over the new work requirements imposed by the Trump administration that were going to kick millions of people off of SNAP anyway, regardless of the shutdown.
• Maybe we need courts to declare food a constitutional right? The First Circuit recently declared that running water is a constitutional right, and that seems like a step in the right direction. At least it is until the Republican Supreme Court tells people to drink sand.
• New York District Court Judge Sidney Stein allowed a copyright infringement claim to go forward against ChatGPT for stealing the work of authors. Apparently, our new AI overlord has been writing unauthorized Game of Thrones sequels. Best believe that if I had access to a dragon I would go full “dracarys” on OpenAI’s entire server farm.

Inspired Takes

• Friends, this Bill de Blasio story is amazing. Essentially, The Times of London conducted an entire e-mail interview with “Bill de Blasio” in which he slammed New York mayoral candidate Zohran Mamdani. But the de Blasio they spoke to was just some guy from New York, not former New York mayor Bill de Blasio. That actual Mayor de Blasio wrote about it for The Nation, because, here at The Nation, we know who we are talking to.
• Speaking of the New York City mayor’s race, The Nation’s Jeet Heer absolutely slams Andrew Cuomo’s bigoted last gasp.
• The billionaire class has figured out that we love our pets. And so the prices of keeping our furry companions alive are going up. Chuck Collins writes about it for The Nation.

Worst Argument of the Week

Texas Attorney General Ken Paxton has sued Johnson & Johnson and Kenvue Brands, the former and current makers of Tylenol, claiming they knowingly hid the link between the medication’s use during pregnancy and the development of autism and ADHD in children.

I’ll keep this short. This is a terrible argument because there is not currently a scientifically confirmed connection between Tylenol and autism. There are a few observational reports that suggest there may be associations, but those studies fail to take a number of variables into account, and there’s nothing conclusive. There’s nothing for Tylenol to “knowingly hide” because there’s nothing the scientists “know.”

The crux of Paxton’s complaint is that “the Tylenol labels on these products contain no warning that there is any risk of ASD or ADHD if a woman ingests the drug while pregnant.” The problem is, you can’t sue people for refusing to put things that are not known to be true on their warning labels. It would be like Paxton saying, “Tylenol labels contain no warning that there is any risk of having an alien Xenomorph burst out of your stomach if a woman ingests the drug while pregnant.” Warning labels do not have to contain notes regarding mere conjecture.

If there were a link between Tylenol and autism, Paxton’s focus on the warning label would still be barking up the wrong tree. It’s the Food and Drug Administration that can require Tylenol to update its label, not the Texas AG. Indeed, the FDA recently required all opioid medications to contain warning labels mentioning the risks of misuse and addiction from taking those drugs. We have a system for handling this stuff, and Ken Paxton is not part of it.

In closing: This lawsuit is stupid. Ken Paxton is stupid for filing it. And because I just had to read about this stupidity, I now need to take a Tylenol to deal with my headache.

What I Wrote

Can Trump run for a third term in office? Legally, no. But then why are so many people talking about it as if it might happen? Well, I have a theory about that, and I wrote it down.

In News Unrelated to the Current Chaos

This newsletter should be hitting your inbox on Halloween, which gives me an opportunity to remind you that Halloween is the worst holiday on the calendar, and I hate it with a blinding passion.

I hated it as a kid. I didn’t like “scary” things to start with. Then, one year, I dressed up as Ted Kennedy (you read my stuff, right? Don’t act like you’re surprised) and the neighborhood kids jumped me and stole my candy. Even though I now realize that the neighborhood kids were totally in the right, it still soured my impression of the festivities.

I also hated the holiday as a young adult. The way Halloween has been turned into some kind of bacchanalian hookup festival has always struck me as… odd.

But it’s as a parent that I hate the holiday the most. I do not like sending my ridiculously privileged kids out into the streets to beg for candy. I do not like the fact that I can spend 364 days a year telling them to “not take candy from a stranger” as a foundational principle of basic childhood safety, but on one day of the year I’m supposed to just ignore that and let them take whatever some random neighbor drops into their bucket. It’s not that I’m one of those “oh noes, there could be hypodermic syringes or fentanyl in the candy” parents. I’m not, you know, Ken Paxton. I just think that sending your kids out to beg for treats is… gauche.

And while we’re here: I don’t like dressing up as whatever cartoon/anime character my kids have chosen to torture me with each year. I don’t like random people coming to my house. I don’t like white people trying to find an excuse to wear blackface. I don’t like anything in the entire gourd family. I don’t like bats, spiders, or anybody wearing a sheet for any reason. I don’t like pets wearing clothes. And the next person who puts a pumpkin in my coffee better be prepared to wear my coffee.

I do not like green eggs and ham, I do not like it, Sam-I-Am.

Which isn’t to say that if you like it (like my kids and my beloved ultra-Halloween mother do) that you are wrong. Enjoy your day of adult dress-up. May all your apples be candied. Just, please, leave me out of it. I will be hanging out with the Grinch hoping all the goblins and ghosts have the good sense to pass me by.

***

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Can Donald Trump legally run for a third term as president of the United States? No. Can Trump serve as president for a third term? No. Is there some untried or untested constitutional theory that could potentially allow Trump to serve again? No. Can he run for vice president? No. Can he run for Congress, get elected as speaker of the House, and serve as president after the president and vice president resign? Well, he can run for speaker but he’d be ineligible to assume the presidency through succession. Can Trump delay or cancel the 2028 federal elections and serve indefinitely? No. Is there any legal way Trump can be president again in 2029? No.

Will Trump still be the president in 2029? I don’t know. Because laws do not matter to dictators.

Convicted criminal Steve Bannon touched off the latest round of discussion regarding a potential third term for Trump when he told The Economist: “Well he’s going to get a third term. So, Trump ’28, Trump is going to be president in ’28 and people ought to just get accommodated with that.” When informed that the 22nd Amendment explicitly prevents Trump from running again, Bannon said: “There’s many different alternatives.… At the appropriate time, we’ll lay out what the plan is.”

Again, there are no alternatives, much less “many,” to get around the 22nd Amendment. The language is clear. It reads, in pertinent part: “No person shall be elected to the office of the President more than twice, and no person who has held the office of President, or acted as President, for more than two years of a term to which some other person was elected President shall be elected to the office of the President more than once.”

Trumpian scholars have tried to zero in on the word “elected,” with the implication being that while Trump can’t be elected as President again, he could serve through some other means. That has led many, including Trump, to theorize that he could run for vice president and then succeed to the presidency. He can’t. The 12th Amendment explains this clearly: “But no person constitutionally ineligible to the office of President shall be eligible to that of Vice-President of the United States.”

After the vice president, the line of succession to the presidency is determined by Congress, not the Constitution. The current line was established by the Presidential Succession Act of 1947, and it places the speaker of the house as second in line to the presidency. Given that the 12th Amendment established that no person who is ineligible to be president can even run for VP, it would be legally and constitutionally incongruous for a person ineligible to be president to succeed to the presidency under the Succession Act. Making an end run around the Constitution through legislation is usually frowned upon by the Supreme Court.

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Of course, all of that “law” presumes there are still people who care about it. Trump doesn’t. Steve Bannon doesn’t. And the Supreme Court cares about it only when it helps Republicans. If Trump wants to be president again, and all the other Republicans, including the ones on the Supreme Court, want him to be president again, and the military wants him to be president again, all the laws in the world will not stop him from being president again. Every republic in history that no longer exists failed when some guy in power decided he didn’t want to give up power. Ours will be no different. Our little experiment in democracy will end the way they all do: when a man who has access to more guns than any of the other guys decides he doesn’t want to go away.

The threshold question on Trump’s third term, then, is not “what laws prevent Trump from seeking a third term”—the question is, “does Trump want to end the republic to get a third term?” And the answer to that question appears to be… not really? Trump has been repeatedly asked about this during his trip to Asia this week, and his answers have been surprisingly reasonable. He said that he could run for vice president (again, he cannot), but that he doesn’t want to because it would be “too cute.” On Wednesday, Trump said it was “too bad” that he can’t run again, which seemed to acknowledge that he knows he cannot.

Of course, that’s what he said this week. Next week, he’ll be back to hawking Trump 2028 hats. The week after, he’ll be saying he has “no choice” but to run again. Six months from now, he’ll say he “hasn’t thought” about running again but “many people” are saying he should.

We’re going to be in this “will he, won’t he” phase for the rest of his term, notwithstanding the fact that the law is clear. Trump is an aging narcissist dictator. Those people don’t cede power willingly. One of the things these types of people fear most is irrelevance and obscurity, and Trump is nearly there already. He’s just a few years away from eating McDonald’s in his “executive chair” by himself while watching NCIS and wondering why nobody calls him anymore.

Beyond his own psychological makeup, there are political reasons that explain the footsy he’s been playing with another run. Trump is a lame-duck president. The mere thought of his all-caps Twitter/Truth Social posts have been terrorizing the country for a decade, but, as Maximus might say: The time for honoring himself will soon be at an end. He’s an 80-year-old man who can now see clearly the end of his public life and relevance. He’s detested and reviled by half of his own country, and he’s transactional enough to know that most of the people who “like” him are just kissing his ass for the boons of cruelty he provides. Soon, very soon (though it can’t be soon enough), nobody will care what he thinks or who he threatens, because he will be out of power, unable to return.

Unfortunately, there are other people who want Trump to be president for life: the evil apparatchiks around him who need the demented man nominally “in charge” to allow them to continue doing their awful work. Trump’s impending political irrelevance hurts them the most. It is not an accident that Bannon, not Trump, was the person to start off this round of dictatorial talk. Trump’s power is the last shred of relevance Bannon enjoys.

As Trump’s power wanes, so too does the power of all his henchmen. In a normal lame-duck administration, this is about the time when those powers behind the throne start looking for their next meal ticket, or start preparations to reenter civil society, usually with a hefty pay increase. But is that going to happen for Trump’s people? Is JD Vance promising power and a fresh supply of human plasma to chief Trump ghoul Stephen Miller? Does anybody have to pretend to like Lara Trump’s singing once Trump is gone? Is there a job Lindsey Halligan can get after her series of malicious and buffonish prosecutions? Fox News can’t hire all of them.

A lame-duck Trump means downballot Republicans don’t have to fear him. It means every Republican presidential hopeful starts clamoring for Trump’s base. It means fracture and division in the Republican Party. It means that all of the people stomping around like they own the place under the cover and protection Trump provides are suddenly exposed. It means Lindsey Graham has to start looking for a new daddy.

Keeping the specter and threat of a Trump third term alive keeps all these cowardly and complicit Republicans in line. The Republican Party is the Trump party now, and there’s nobody who really knows what happens to that party once Trump himself is gone. The only way for Republicans to delay that reckoning is to keep Trump in power, or threaten to do so, for as long as he’s alive. The people around Trump will be threatening a third Trump term for as long as other Republicans believe that threat is credible. It is their only way to hold on to power.

Is it a credible threat? Should other Republicans believe it? Should we all fear an eternal Trump presidency and his Thousand-Year Reich?

No. Legally no. It’s not even a serious proposition.

However, as we near All Hallow’s Eve and All Saint’s Day, I am reminded that sometimes believing a person has power gives them a form of power. If the entire society operates like witches are real, then real people are harmed even though witches do not exist.

The only way Trump can run for another term is if everybody acts like he can. The only way the threat of him running holds any power is if people are irrationally afraid that he might. We will collectively manifest a Trump third term if we do not hold fast to the reality of its impossibility.

Trump cannot legally be president again. Remember that when bad people with evil intentions try to scare you into thinking he can. Trump is not magic. He’s an old man wearing the costume of a president hoping to trick you into giving him what he wants.

The question of whether Donald Trump has the authority to deploy federal troops in American cities—in violation of the Posse Comitatus Act—is heading to the Supreme Court. This week, Trump asked his complicit Supreme Court justices to overturn a restraining order barring him from waging war on Chicago. The appeal was placed on the court’s shadow docket, meaning the court can review the case and issue a ruling at any time, without a hearing and without the Republicans’ having to explain themselves. The court can give Trump the authority to “temporarily” attack American cities, pending a full hearing at a later date, by which point the devastation from his actions will already be complete.

Georgetown Law professor Steven Vladek calls the case a “make or break moment” for the Supreme Court. He writes: “For the Supreme Court to issue a ruling that allows the President to send troops into our cities based upon contrived (or even government-provoked) facts…would be a terrible precedent for the Court to set—not just for what it would allow President Trump to do now, but for the even more grossly tyrannical conduct it would allow him and future presidents (assuming we have any) to undertake later. If factually and legally unpersuasive domestic deployments of troops aren’t going to be a red line for the Supreme Court, what the heck will be?”

My guess is that there is no “red line” for the Christofascist extremists running the Supreme Court. They will give Trump what he wants, as they always do, and continue to let him trash the Constitution to satisfy his whims.

In a separate case, a three-judge panel, randomly stacked with two Trump judges from the Ninth Circuit Court of Appeals, gave a preview of what the Supreme Court’s eventual argument will look like. That panel removed a restraining order imposed by a district court judge (who was also a Trump appointee, for what it’s worth) preventing Trump from sending troops into Portland. The panel took Trump’s lies about the situation on the ground in Portland at face value. The Ninth Circuit said that the district court did not give appropriate “deference” to Trump’s “assessment of the facts.” They further said that the district court placed too much emphasis on the words Trump used to justify his invasion of Portland.

I expect that the panel’s ruling will soon be overturned by the full Ninth Circuit, but it doesn’t matter. Their reasoning will be aped by the Supreme Court. This is the classic Republican judicial dance to justify anything that Trump does. First, the judges say that the president might be right, even in the face of demonstrable evidence that he’s wrong. Then, they say that we cannot use Trump’s own (illegal, unconstitutional, abhorrent) words against him, and have to pretend that he didn’t literally confess to his own illegal motivations for doing a thing. Lastly, they’ll say that their order authorizing Trump to do whatever violent thing he wants to do is “temporary” and promise a full hearing “on the merits” at some point in the future, by which time whoever it is Trump wanted to kill or deport will already be dead or gone.

Republican justices essentially tell us to ignore Trump when he’s telling the truth about himself, but listen to Trump when he’s lying about the rest of us. They will again. Chief Justice John Roberts and his Republican cabal first used this move way back in 2018 in Trump v. Hawaii, when Roberts authorized Trump’s Muslim ban, and since nobody ever punished Roberts for his legal vandalism, he’s been using the same playbook ever since.

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Trump is a dictator. The Supreme Court is there to help him.

The Bad and the Ugly

• The federal government is still shut down. The judiciary is now operating on emergency backup funding. The judges are still there, and they’re still being paid, but most other people who are working for the courts are either being furloughed or asked to continue working for free. Cases will be delayed. Iowa Senator Chuck Grassley expressed surprise at how the shutdown is affecting the judiciary, saying he “hadn’t thought about” how it would impact people waiting for rulings from court. Chuck Grassley IS THE CHAIRMAN OF THE SENATE JUDICIARY COMMITTEE. Nice to know that he has no freaking clue what he’s doing.
• The fallout from the Supreme Court’s pending decision to gut the Voting Rights Act has already started, and the court hasn’t even issued its ruling yet: On Wednesday, North Carolina adopted a new, racist gerrymander aimed at taking away two majority-minority districts in the state.
• The Trump administration is murdering civilians on boats in the Caribbean. Reports indicate that 34 people have been killed in the past 50 days. Just thought you’d like to know.
• House Democrats have launched a probe into Trump’s attempt to extort $230 million from the Department of Justice.
• Bigoted functionary Kim Davis, who claims a religious right to refuse to click her little screen on marriage applications filed by gay couples, is trying to get her case heard by the Supreme Court. The court will consider whether to hear her appeal when it next meets, on November 7. I’m not sure if this is the case that the court will use to overturn marriage equality—Davis’s arguments are more stupid than most—but if it’s not this one, it’ll be some other one. This day is coming.

Inspired Takes

• Whenever I read The Nation’s Michael Klare, I get scared. His new post on Trump’s embrace of AI is, well, terrifying.
• Democrats who would like popular support from young Democrats need to get the memo on Gaza. Y.L. Al-Sheikh explains in The Nation.
• Adam Serwer explains how we’re all paying the “anti-woke” tax now.

Worst Argument of the Week

It turns out Maine Senate candidate Graham Platner has a Nazi tattoo. And has said horribly bigoted things on Reddit. He’s, uhh, since covered up his Nazi tattoo. And he’s totally very sorry about his past unhinged bigotry. He’s a better man now (he claims), which is nice, I guess. Yay? Let he who has not emblazoned a Nazi insignia on their chest or written homophobic rants on social media cast the first stone.

Luckily, as I have not done either of those things, I am in the morally superior position, and I have a lot of fucking rocks. The new revelations about Platner’s body art and past beliefs caused a lot of people, including me, to hastily retract support for his candidacy. But other liberals are still supporting this guy—I have only seen other white liberals continuing to defend him, but I don’t spend a lot of time in Black, blue MAGA spaces so my own bubble may be biased on that front.

The absolute worst version of this defense was penned by Jon Lovett, host of Pod Save America. He took to Twitter to say: “Only perfect candidates off the harvard law conveyor belt pls, highly disciplined, all boxes checked, well liked and humble, absolutely no spiritual connection to having a physical body except for severe IBS, volunteered at a soup kitchen in high school, signs email ‘cheers,’ etc.”

Nearly every word of this Tweet is an exceptional piece of trash, even when you adjust for its dog-whistle attempts at sarcasm. His overall point is that Democrats should not abandon candidates like Platner just because they’re imperfect in some way. His suggestion is that “perfect” candidates are inauthentic, as opposed to a guy like Platner who is a real guy, warts and all.

That’s the takeaway. But what’s truly wild about it is the implication that getting Nazi tattoos and spewing anti-gay garbage is just being “authentic,” while volunteering at soup kitchens and being disciplined in how you talk about other people is somehow woke BS from people with irritable sphincters. Lovett is acting like being generous, educated, and NOT GETTING NAZI SYMBOLS ETCHED ONTO YOUR BODY is somehow incongruous with being a red-blooded American guy and showing the voters your true self.

I reject Lovett’s bullshit at every conceivable level. I consider myself an “authentic” American cis-hetero male. The fact that I take my children to volunteer at a soup kitchen does not make me less of a man, nor does it make me fake. The fact that I can spell “cis-hetero” and use it appropriately does not make me weak. The fact that I went to Harvard Law School suggests I may be qualified to speak about how the laws of this country could be made to work better for all the people living here. But maybe I need to put this in “authentic” male language that Lovett can understand: Kiss my Black ass, punk.

In any event, my take on Platner is that he’s probably not a Nazi. And he probably has learned and grown over the course of years. But, as a voter, I probably cannot take the chance that I’m wrong about his best intentions.

Platner is an unproven, neophyte candidate with no public record (other than on Reddit) running for an office with a six-year term. He’s saying many of the right things now, but he’s asking people to trust that what he’s saying now is the truth and that he will stick to it once he’s ensconced in power for more than half a decade. Literally, anybody can talk a good game during a campaign. (See: Sinema, Kyrsten. See also: Fetterman, John.) Does anybody truly know what Platner, a literal [checks notes] former mercenary will do once Pfizer starts coming at him with money? I don’t.

I was willing to give Platner the benefit of the doubt before, but new information has come to light. I can no longer trust him. Updating one’s opinions based on new information is a sign of intelligence.

Then again, I learned that at Harvard. So, you know, my ability to process and integrate new information will never be authentic enough for Jon Lovett.

What I Wrote

The Supreme Court is taking up a major gun case. It involves disarming people who smoke weed, so a lot of people on the left want the court to reverse the law in question and expand gun “rights” to weed smokers. That would be a mistake. I explain why here.

In News Unrelated to the Current Chaos

I’m a little late to the party, but I have recently been watching Avatar: The Last Airbender. The cartoon. Which last aired in 2005. So, OK, I’m a lot late to the party.

Avatar has essentially been my eldest child’s entire personality for a couple of years, so I am generally familiar with the story and its characters. I even dressed up as one of the protagonists for Halloween last year (Uncle Iroh). But I never really sat down and watched it.

Folks, this show is amazing. It’s surprisingly dark for a “kid’s show,” even though it’s full of light, funny moments. It’s deep. There’s a terrible father involved—voiced by Luke Skywalker himself, Mark Hamill. (I kind of have a thing for shows with absolutely godawful fathers because they make me feel good by comparison.) But there are also great fathers involved—like Uncle Iroh. It’s a show about defeating an evil empire. It’s a show about kids defeating an evil empire. It feels incredibly on-point, given [gestures broadly] the world my kids find themselves in.

Not since I went through Steven Universe have I been this happy with a piece of media aimed at my children. If you’ve got some tweens in your house, and you haven’t seen it yet, give it a try. You won’t be disappointed.

Now, if only I could get the younger one off of Bluey.

* * *

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This week, the Supreme Court agreed to hear oral arguments in a huge gun case, and in the process laid a trap for the progressive left that too many people are stumbling into. The case has always-online lefties arguing that an expansion of gun rights is the correct political and legal outcome, but that is getting things all twisted.

The case is called US v. Hemani, and it revolves around the application of a federal statute—18 USC Section 922(g)(3)—that prohibits gun ownership for any person who is “an unlawful user of or addicted to any controlled substance.” This is the exact law that Hunter Biden was convicted under—and that led Joe Biden to pardon his son.

The hypocrisy of this law is flagrant. Alcoholics are allowed to own guns. In some counties, you can stumble from your local bar to your local gun shop and be strapped before closing time. It is absurd that a person who is too drunk to operate a car is allowed to carry a gun on their person, but a weed smoker is not allowed to keep a gun in their house. Do you know how many mass shootings have been committed by people who were high on weed? My guess is zero… they all decided to shoot up the place tomorrow.

Ali Danial Hemani challenged the hypocrisy of this law. Hemani’s home in Texas was searched by the FBI in August, 2022. The feds found a Glock 9mm, 60 grams of marijuana (roughly equivalent to two ounces), and 4.7 grams of cocaine. I am going to assume that the FBI was looking for something a little more incriminating than some recreational drugs and a handgun, but, like Hunter Biden, the only thing the government was able to charge Hemani with was this violation of Section 922.

Hemani was able to get his case dismissed. The government could not show that Hemani “was presently or even recently engaged in unlawful drug use.” The government busted this guy for having a gun while possessing drugs, but they couldn’t even prove that he was on the drugs he had in his house. On appeal, the Fifth Circuit affirmed the dismissal of Hemani’s case.

But then, the Trump administration got involved. Solicitor General John Sauer asked the Supreme Court to overturn the dismissal of Hemani’s case, and affirm Section 922 and the government’s right to harass recreational drug users who have guns.

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I cannot prove that the Hunter Biden situation had anything to do with the Trump administration’s decision to appeal this case. But everything I know about this small, petty, vindictive administration tells me that it’s pursuing this case to make it look like there was some deep legal principle behind its persecution of the former president’s son. Call it a hunch. Without Hunter, it makes no sense for this administration to appeal a ruling from the most conservative appellate court in the country that further extends Second Amendment rights in Texas.

The Supreme Court’s decision to hear the Trump administration’s appeal makes more sense. That’s because the lower courts are all over the map on how to apply Section 922 nowadays.

There is legitimate legal chaos when it comes to applying this rule, and it all stems from the Supreme Court’s second-worst opinion from 2022, New York State Rifle & Pistol Association v. Bruen (the worst case from that term was, of course, Dobbs v. Jackson Women’s Health Organization). Bruen articulated the absolutely insane proposition that for a gun law to be applicable in the 21st century there needs to be a “historical analogue” from the 18th century. What counts as a historical analogue? Nobody really knows! Since the Republicans on the Supreme Court are making this crap up as they go along, nobody can know if some random piece of parchment Nic Cage found in the basement of the Washington Monument counts as enough of an “analogue” to ban tactical nuclear weapons for home defense.

Solicitor General Sauer believes that he has an appropriate analogue that allows the government to keep guns out of the hands of drug users. He cites (wait for it) 18th-century restrictions on gun possession by “habitual drunkards.” That’s right: To support a law that bans drug users, but not alcoholics, from owning guns, the Trump administration is citing laws that banned alcoholics from owning guns. I honestly don’t know how Republicans even write these things down without their brains exploding from the cognitive dissonance.

Between the blatant hypocrisy of conservative lawyers, the stupidity of the law at issue, and the possible anti-Biden motivation, you can see why a lot of people on the left want the court to resolve this case in favor of Hemani and drug users everywhere. But that would be a mistake.

I mentioned that Section 922 G-3 is the statute that bans guns for drug users and people with drug addictions. Anybody want to know what some of the other numbers in that section of law address? The law is part of the Gun Control Act of 1968. It was passed as a response to all of the political assassinations of the 1960s (there was a time in this country when we addressed political violence by strengthening gun laws instead of going on podcasts). Subsection G creates categories of people prohibited from owning firearms. G-2 bans guns for fugitives from justice. G-6 bans people who were dishonorably discharged from the military from continuing to own guns. G-8 deals with the people subject to restraining orders. G-9 bans guns from people convicted of domestic violence. Having the Supreme Court throw out G-3 opens the door for them to throw out a whole bunch of stuff in that law, and given this court, that result would be exceptionally bad.

Lots of people should not own guns, including many people on this list. That is the principle we should be fighting for. While I don’t have any fear of Matthew McConaughey owning a gun in Texas even though he was arrested while smoking a joint and playing the bongos, any decision that restores gun rights to harmless habitual drug users will open the way to restoring gun rights to people who have committed more sinister crimes. We narrowly dodged this bullet 18 months ago in US v. Rahimi. In that case, an 8–1 court ruled that guns can be taken away from domestic abusers under a restraining order. The Republican justices went out of their way to make the Rahimi ruling as narrow as possible (I explained their bonkers reasoning at the time), so the specter of violent or unhinged people getting their hands on weapons is always at the door. If disarming Hunter Biden is the price we have to pay to disarm a convicted felon like… Donald Trump, then so be it.

The way to deal with the dripping hypocrisy of drug users having their guns taken away is for Congress to repeal the section, not the courts. Congress, the people we elect to do this work for us and the people we can recall every two years if we don’t like what they’re doing, is the place to right this wrong.

We should stop criminalizing drug use and drug addiction. That is the foundational problem. If you solved for that, you’d solve the whole problem here, without having to go back to 1791 to figure it out. It is this country’s puritanical obsession with recreational drug use that is the problem, not the legal principle that says “convicted felons should probably not have weapons.”

Will this Republican Congress repeal the Hunter Biden law? No, certainly not. But why didn’t Democrats repeal it when they controlled Congress? Why didn’t Biden pardon everybody who was convicted under this stupid law, instead of only his son? I know I’m crying over milk that spilled, curdled, and got stepped on so much it’s now cheese, but when I say I want Democrats to run on a decriminalization platform, this is what I’m talking about. There is a solution to this problem; it just requires Congress to do its job.

This is not the job for the courts. The Supreme Court should follow the law, even this part of this law which is demonstrably dumb and ill-conceived. The last thing we should want is for Clarence Thomas to invent some ahistorical claptrap for why another group of people must have unfettered access to weapons just because some knight of the Round Table was getting high on nightshade before going out to joust.

The expansion of gun rights is never the right answer. The decriminalization of drug addiction usually is. Let’s keep our eyes on the eight ball.

The New York Times reports that the Trump administration is considering proposals to radically reshape the US refugee system, denying entry to Black and brown refugees the world over while opening up the borders for white people from South Africa and Europe who claim they are being politically persecuted. Trump is planning to slash the number of refugees admitted into the country each year to 7,500, a drastic decrease from the 125,000 let in under the policies of the Biden administration last year. Apparently, those few spots are now reserved for white people who espouse Nazi beliefs, as both Trump and Vance have made a point of defending neo-Nazis in Germany and have been apparently making plans to bring them over here.

None of this is surprising to anybody who has done the work of actually listening to what Trump and his MAGA supporters have been talking about for years. The Trump administration is an openly white supremacist regime, and they’ve been acting like it, in both word and deed, since he returned to office. These people are terrified of the browning of America, terrified that white folks will lose their numeric majority in this country in the coming decades, and terrified of the declining white birth rate.

Welcoming white refugees is all of a piece. It fits neatly with bombing boats full of innocent brown people, authorizing Gestapo-style tactics by ICE, taking away birthright citizenship from people actually born here, sending in the military to police brown cities, eviscerating the voting rights of non-white people, and trying to turn white women into brood mothers through the revocation of their reproductive rights. If you believe that America exists for the benefit and glory of white folks, and if you believe that non-white folks don’t “deserve” to be here unless they are working to increase the profits of white people, then every single thing the Trump administration is doing makes sense. It’s how you resurrect white supremacist rule over this nation if white supremacy is your one true calling.

I’ve just about lost my capacity to be horrified by any of it. It’s not that I’m numb to it. Instead, as Django said: “I’m just more used to Americans.” This is just what majorities of white folks do. This is what majorities of white folks have always done whenever their power is left unchecked. And the only reason they’re afraid of losing their majority is that they assume other people will do to them what they’ve done to everybody else, just as soon as we get a chance.

We won’t, of course. Because we’re better than that.

The Bad and the Ugly

• The government is still shut down. Trump is offering to bail out the country with $40 billion in federal spending. Wait, no, that’s Argentina.
• Florida-man Representative Cory Mills had a restraining order taken out against him by his ex-girlfriend. Mills has long been problematic. But so have voters in Florida.
• “The Washington Post Is Running Out Of Readers Willing To Pay,” reports Forbes. I’m not mentioning this as a plug for the paper. I’m just putting this here to remind people to unsubscribe from The Washington Post (and, perhaps, subscribe to The Nation instead).
• Alleged attempted rapist Brett Kavanaugh’s endorsement of racial profiling—in a September shadow docket decision in which he affirmed the government’s ability to stop anyone who is brown and speaking Spanish on suspicion of being an immigrant—has Sheriff Joe Arpaio feeling vindicated. He should. His racism was both behind and ahead of its time.
• Speaking of Kavanaugh’s racial profiling decision, ProPublica reported that more than 170 US citizens have been detained by ICE. In his decision, Kavanaugh suggested that such illegal kidnappings would be a minor inconvenience, but the actual facts show that Kavanaugh was, as usual, lying.

Inspired Takes

• Like everybody else, I read the hell out of this Nation piece about the evolution of the Cybertruck.
• In The Nation, Kate Wagner explains why the University of Chicago stopped admitting PhD candidates in the humanities.
• Liz Dye, who is one of my favorite legal writers, takes a deep dive into all the defects with the Comey indictment.
• This podcast makes a really good point about why the No Kings protest (another one is happening Saturday) bothers MAGA so much. Basically, they thought that Black people would be on the front line of protests—Black people they could brutalize while whites watched in satisfaction. It’s a little different when the Trump administration has to beat up somebody’s white grandma.

Worst Argument of the Week

Politico gained access to a text chain of “young” Republican leaders (some of them were 40) where they talked like… Republicans talk when they think only other Republicans are listening. They used racial slurs about non-white people and Jews. Denigrated women and the LGBTQ community. And, as is standard with them these days, praised Hitler.

Vice President JD Vance, who once likened Trump to Hitler but now has decided that’s a good thing, defended his young Republican bros. Vance dismissed all the sexism and bigotry as “edgy jokes” and said “I refuse to join in the pearl clutching.”

I… do not own pearls. As I said already, I am no longer horrified when white people act like white people. But giving these people license for their hate and vitriol is beyond gross. It’s not a defensible position; it’s just a racist one.

I was going to dance an entire tarantella on Vance’s head, but The Nation’s Joan Walsh beat me to it. I cosign everything she said here. Joan pointed out that Vance’s wife, Usha, is Indian, and Vance is defending people who are saying the worst possible things about Indian women like his wife.

But here’s the thing, Vance knows what Trump knows, which is also what Mitt Romney knew and John McCain knew and every other Republican since Richard Nixon has known: They cannot win without these people. They can’t make the numbers work any other way. And so every Republican, every single one, must play nice with these hateful neo-Nazis, if they want to win political contests.

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Vance is willing to throw his wife under the bus to make sure there is no distance between him and his base of support. Thing is… so is his wife. Usha is not captured. She’s a partner in this. They have both decided that they’d rather throw in with the racists and win than stand against them and lose.

Couldn’t be me. I have this thing called “self-respect.” Apparently, it is a burden in American politics.

What I Wrote

• Welp, the Supreme Court seems just about ready to throw out Section 2 of the Voting Rights Act and allow white state legislatures to gerrymander away Black political power. I spent two-and-a-half hours listening to their oral arguments and then wrote about it so other good people don’t have to.
• I also wrote about Trump’s accelerated timeline for taking away food stamps. I guess the thought of people having enough to eat this Thanksgiving just angered the ketchup man.

In News Unrelated to the Current Chaos

If you ever wondered why I don’t stream or have a YouTube channel—and instead just try to do my job and go home—just take one look at what’s happening to Hasan Piker right now.

The popular YouTube personality ended up embroiled in controversy when his dog yelped during a video. Without more information, it looked like the dog had been outfitted with a shock collar (I believe shock collars are very bad and should not be used).

Piker later clarified that he does not use a shock collar for his dog. He does use a vibration collar (which is a different thing) for long walks, but was not using one that day. I have not looked into vibration collars (my dog stays mainly in the house, sitting on my feet, criticizing my sentence structure, and questioning how I can possibly be employed as a professional writer). I understand them to be OK, and I take Piker’s explanation at face value.

Of course, I am a normal, rational person. Many are not. Piker reports that since the incident, he has received death threats, as well as threats to kidnap his dog.

I understand that there is a lot of money to be made and influence to be had on the streaming circuit. But, at least as of now, I just can’t. Writing on the Internet is bad enough. But at least I have an editor. At least I have the time and repose to consider the words I’m putting out into the world and how I’m framing them and myself. Streaming is just… raw. Exposed. And you’re exposing yourself to a group of people primed to take everything you say out of context, with your enemies hunting around in bad faith.

Now if you’ll excuse me, I have to go get my dog to stop barking at the squirrels outside our window with my preferred training technique of telling her to “shut the hell up.” Then I will feed my children a nutritious meal of pizza and mozzarella sticks. I will do it all while ingesting brown liquor and playing a video game that involves shooting enemies to death with a gun. But millions of people will not be watching me and judging me while I do these things.

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The Supreme Court heard oral arguments on Wednesday in Louisiana v. Callais, a case about whether Section 2 of the Voting Rights Act prevents white people from overrepresenting themselves in Congress. Oral arguments can sometimes sound like the justices are deliberating great and technical points of law, but the outcome in this case was decided long before the lawyers arrived at the courthouse. The six Republican justices are going to declare the Voting Rights Act inert and allow the dilution of Black voting rights through racist gerrymandering. Oral arguments were largely an exercise of the Republicans justifying their racist positions.

At issue were maps for congressional districts in Louisiana. The state has six congressional districts. After the 2020 Census, the state produced a map where five of those districts were majority white. But Louisiana is only 57 percent white, and 31 percent Black. Simple math should tell you that there should be at least two districts in Louisiana that are majority-minority.

That said, if math is not your thing (and it never is for Republicans when the math doesn’t result in their supremacy over others), then the Voting Rights Act and the 15th Amendment should be. Section 2 of the VRA allows the federal courts to intervene when a state discriminates against the voting rights of Black people. Louisiana was sued by the NAACP after the 2020 census, and a court ordered the state to redraw its maps, producing two majority-minority districts.

A group of white plaintiffs in Louisiana then countersued the state over its new, less racist maps, arguing (wait for it) that this application of the VRA violated their constitutional rights. The white litigants were arguing that their overrepresentation in Congress is permissible and that attempts to use the VRA to stop them is the real constitutional violation.

As I explained in my Supreme Court preview, the fact that the court agreed to hear this case at all is an indication of how the Republicans intend to rule. Louisiana v. Callais was first argued in the last term, but the justices could not reach a decision and scheduled a rare reargument for this term. The case is itself a carbon copy of a 2023 case, called Allen v. Milligan, in which the court ruled that Alabama could be forced to draw a second majority-minority district under the Voting Rights Act. The fact that the court was unwilling to apply its own precedent in Milligan to the case in Louisiana tells you that the court does not want to uphold the VRA.

Oral arguments on Wednesday functionally removed all doubt. Chief Justice John Roberts and alleged attempted rapist Brett Kavanaugh, the two justices who broke with their normal white supremacist positions and voted to uphold the VRA in Milligan, were both eager to treat the Louisiana case as a completely different thing. Roberts essentially argued that, in Milligan, the state all but conceded that it was in violation of the VRA, and asked the court to do away with it, while in Louisiana, the state argued that it would still be in compliance with the VRA even if it reduced minority representation to one majority-minority district—an argument that, if accepted, would render the VRA functionally meaningless. This is a common peg for Roberts to hang his hat on. As long as litigants aren’t coming to his court openly saying, “I want to do some racism,” Roberts loves to pretend that racism doesn’t exist.

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Roberts’s moral obtuseness here isn’t just annoying (though it is that); it’s also a mischaracterization of the VRA. Section 2 of the Voting Rights Act does not require discriminatory intent in order to work. To win, plaintiffs literally do not have to prove that a state discriminated against Black people on purpose. Section 2 is concerned only with discriminatory outcomes. So if a state produces a map that discriminates against people trying to vote, that state is in violation of the VRA, even if the state “doesn’t have a racist bone in their body” or has “lots of Black friends” or whatever else it claims.

It’s a point that the liberal justices returned to again and again at oral arguments, which lasted over two and a half hours, but that Roberts seemed to ignore.

The lawyer representing the state of Louisiana—Louisiana Solicitor General J. Benjamin Aguiñaga—argued that Louisiana’s intent was not to discriminate on the basis of race but to discriminate on the basis of party. This argument is also Roberts’s fault. In 2019, in a case called Rucho v Common Cause, Roberts declared political gerrymandering “nonjusticiable,” which has turned out to mean that white state legislatures can discriminate against Black voting rights as much as they want as long as they claim to be discriminating against people who vote for Democrats. Section 2 of the Voting Rights Act was supposed to be the last line of defense against that kind of racism-by-another-name, because, again, the VRA is not concerned with intent, just outcomes. But Roberts and the other Republicans seemed poised to ignore that, and give Louisiana a license to discriminate.

Roberts flipping his position from Milligan to Louisiana would be enough to give the racists the win, but the second Republican in the Milligan majority, Kavanaugh, also appears set to abandon his position from just two years ago. Kavanaugh was fixated on what has come to be my least favorite white argument in any hearing about race: Surely racism has been solved by now. He wanted to know when we can declare that Louisiana and all other states have solved their racism problem sufficiently so that Section 2 of the Voting Rights Act is no longer necessary, and he was disappointed when Janai Nelson, the head of the NAACP Legal Defense Fund, couldn’t give him a hard-and-fast date for when racism will be solved.

Again, I hate this argument. White people enact racist policies, we make laws to try to stop them from enacting racist policies, those laws kinda, more or less, work sometimes, and then white people say, “See, we’ve solved it. We don’t need the law anymore.” As Ruth Bader Ginsburg once said, the Republican argument amounts to throwing away your umbrella in a thunderstorm because you’re not wet yet. Racism will be over when white folks stop doing it. And you’ll know they’ve stopped doing it when we no longer have white lawsuits aimed at overturning the laws meant to stop white folks from being racist!

In any event, while Roberts and Kavanaugh twisted themselves into pretzels to go back on their previous rulings, the other conservatives, who were all in the dissent in Milligan, reprised their feigned abhorrence at considering race to counteract racism. The best way I can describe the arguments from Justices Thomas, Alito, Gorsuch, and Barrett is to say that they think it is OK for white folks in Louisiana to use race to draw discriminatory maps, but it’s not OK for Black folks to use race to draw inclusionary maps. As always with these people: White makes right.

If you’re looking for a silver lining, I can at least report that the white-people argument the plaintiffs were trying to make—“inclusive maps violate our equal protection rights”—got absolutely no play from the Supreme Court. The Republicans are going to allow Louisiana to discriminate, but they’re not going to say discrimination is required by the 14th Amendment in order to make white folks feel “more equal” than everybody else (at least, they’re not going to say that in this case). The lawyer representing the white plaintiffs, Eddie Greim, was… I believe the scientific term is “dog-walked” by the Democratic justices. Usually, when one of their boys is getting humiliated by the liberal women, one of the white guys on the court pipes up to throw their brother a lifeline. But not this time. The Republicans remained silent as Mr. Greim got all that was coming to him. He was only at the podium for 15 minutes, but 15 minutes is a long time when you are getting repeatedly run over by a bus.

Unfortunately, the fact that the white plaintiffs who brought the case got stomped by the liberals will not matter one whit when it comes to decision time. I believe Kavanaugh articulated what will be the court’s eventual 6–3 holding. He essentially said that Section 2 of the Voting Rights Act is constitutional, but the application of Section 2 to a map where the intent to discriminate cannot be shown is unconstitutional. They’ll avoid the headline “Supreme Court overturns the Voting Rights Act,” but they will neuter the VRA to the point that it’s no longer allowed to function.

If that is indeed the decision that comes down from the Supreme Court in June 2026, I’m sure Louisiana will try to redraw its congressional maps to go back to only one majority-minority district ahead of the 2026 midterms, netting Republicans an additional seat in Congress. Some analysts believe that this Supreme Court ruling could result in as many as 19 congressional seats being shifted to the Republicans by means of racially gerrymandering away Black voting power.

The question I’m always asked in these situations is, “OK so what can the Democrats do about this horrible Supreme Court ruling?” At this point, my answer is basically, “I dunno, go back to 2021 and expand the court when you had the chance, like I told you to do.” Leaving Republicans in charge of the court is and always has been an existential threat to the Democratic Party, and cases like Louisiana v. Callais are the reason why. The Democratic Party cannot survive the loss of Black voting rights, and so when the party refuses to protect those voting rights when it can, the party is ensuring its future defeat. We are now suffering the consequences of the Democrats’ past inaction.

Given what has come to pass, the only real option for the Democrats is to gerrymander the states they control to the absolute maximum, hope that the Republicans in their hubris allow there to be an election in 2028, hope that Republicans lose that election, hope that Republicans don’t use the military to steal an election they lost, and then use tiny Democratic majorities to completely remake the electoral system and the Supreme Court. There’s nothing I know about establishment Democrats that tells me they have the will to do that, even if they are allowed to take power again, but that’s the play.

The solution, if there is one, is political, not legal. “The law” is of no more use here. The Republican Supreme Court is about to overturn a Republican ruling the Republicans made only two years ago. That alone should tell you that the law, as it is practiced by the Supreme Court, is utterly useless. The Republican justices have the power to do whatever they want. And what they want, today, is to flip Congress in favor of Republicans.

I continue to live in fear of what they’ll want tomorrow.

Donald Trump and the Republican Party have long been at war with poor people. It’s a weird enemy for the allegedly Christian leaders of the white wing to pick, but I guess MAGA Jesus is only capable of turning bread into bullets. In July, Trump’s Dumb Cruel Bill cut over $1 trillion from Medicaid, the Children’s Health Insurance Program (CHIP), and the Supplemental Nutrition Assistance Program (SNAP).

The Medicaid fight makes consistent headlines, with noted “woke” empath—Marjorie Taylor Greene—regularly criticizing her own party for taking away people’s healthcare. The fight over food stamps garners less attention.

SNAP is the current iteration of the Food Stamp program, which first came into being during the Great Depression, was made permanent in 1964, and went nationwide in 1974. Almost ever since, it’s faced attacks—and not just from Republicans. In 1996, neoliberal Bill Clinton announced the “end of welfare as we know it”—which just meant inflicting harsh new work requirements on people in need of government assistance, including food stamps—as he triangulated away the Democratic Party’s soul. Making hungry people performatively dance for their supper is apparently a bipartisan fascination.

The most recent attack came this summer, when Trump and his ex-bestie Elon Musk decided to shrink the country’s social safety net even further by cutting food and healthcare benefits to impoverished Americans. Trump’s changes to the SNAP program are nasty and myriad (yep, he’s cutting off refugees)—but I want to focus on the even stricter “work requirements” he and the well-fed dauphins who run Congress put in place. Among other petty cruelties, veterans, people who are homeless, and young adults transitioning out of foster care are now required to work in exchange for their meager food-stamp allowance. So are older people, younger people with older kids, and more.

The pain of these changes was not immediately felt—but it’s about to be. Twelve states and territories had previously gotten exemptions from the federal government that allowed them to avoid enforcing many of the work requirements. These states, which include New York, where I live, had until February of next year to implement Trump’s demands. But on October 3, the Trump administration simply changed its mind and rescinded the waivers. New York now has to implement the work requirements by November 1. That jeopardizes the food resources of 3 million New Yorkers who rely on the assistance.

It’s hard to overstate how harmful this is. Over 42 million people receive some form of SNAP assistance. Those living in states that previously had waivers account for 36.5 million of those recipients. All those people could now be at risk of losing their benefits. The (Republican-controlled) Congressional Budget Office estimates that at least 4 million people will lose all or part of their SNAP benefits once the changes go into effect, but we will never know the true numbers, because the Trump administration canceled the annual reporting on food insecurity that we use to track the numbers of people who need assistance. Like walking past a homeless person who asks you for change on the subway, the Trump administration wants us to pretend that these people aren’t even here. They want us to be blind, deaf, and dumb to their suffering.

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Whatever the real number is, it’s unconscionable. Many of those people are already about to face the toughest part of their year—winter—and now, suddenly, they will not know where their next meal is coming from. If our government were run by Marie Antoinette, it wouldn’t be as callous.

Thanks to our long, bipartisan, embarrassing history of cruelty toward the needy, we know one thing about work requirements: They don’t work. First of all, most working-age people on SNAP already work. This is a simple fact that consistently gets lost or ignored every time this issue comes up. Most of the adults work, but they work unstable or part-time or simply poorly paid jobs that cannot cover their food needs.

All work requirements do is increase the paperwork necessary to get the benefit, and that means fewer people will be able to access the assistance they need even though they meet the work requirements. It’s not like people on SNAP are likely to have access to a personal assistant or a stay-at-home spouse or a lawyer or a CPA or anybody at all who is able to help them navigate through all the red tape. And it’s not like they have a lot of extra time on their hands, during business hours, to sit on the phone or show up to the government office because, you know, they’re working. Sometimes they’re working jobs that are somewhat reluctant to provide the kind of employment verification the government might be looking for. Sometimes they’re working jobs that don’t give them a lot of time to sit on hold with a government agency.

Moreover, focusing on the adult working requirements misses the fact that nearly two-thirds of the people who get food through SNAP are children. The callous attitude people in this country take toward the reality that the people who benefit most from food stamps are kids would make characters in a Charles Dickens novel blush. “I’m sorry, Tiny Tim, but your dad didn’t spend 80 hours this month begging Scrooge for a job, so you can eat your freaking crutches for all I care.”

I’m focusing on the working poor because they make up the majority of people who receive food stamps. But I also feel compelled to defend what Alfie P. Doolittle would call the “undeserving” poor. Regardless of what you think about any individual person, food assistance should not be predicated on meeting your personal definition of deserving. People shouldn’t have to perform feats of social worth to get food; in our incredibly wealthy society, people should just get food. This wasn’t a controversial position in ancient Rome, and it certainly shouldn’t be one in modern America.

Of course, this country’s war against the poor does not stop at food stamps. In addition to cutting Medicaid and CHIP, the Trump administration is also covertly cutting Social Security Disability Benefits. Over 8 million people receive Social Security Disability Insurance (SSDI) checks. SSDI assistance is available to people with disabilities, regardless of age, but Trump is trying to change the eligibility requirements so that a person’s age is not taken into account when assessing their ability to find another job. I don’t think I’m being “ageist” to say that telling a 60-year-old grandpa to “learn to code, lmao” is not really a practical idea, but that’s pretty much where we are.

For those who need a more selfish reason to defend these programs, you should know that SNAP and SSDI make up part of the safety net for the whole economy in times of recession. When people who are out of work can still buy necessities, like groceries, it props up the businesses who sell those goods, even in times when consumer spending is at a premium. Public benefit programs create a floor that keeps local economies going when whatever bubble we happen to be in at the time bursts.

What’s maddening is that neither Trump, MAGA, mainline Republicans, or some Democrats actually want to do what is necessary so that people don’t have to turn to food assistance. They don’t want to address the underlying, structural factors. They don’t want to address food deserts. They don’t want to provide free childcare. They don’t want to raise wages so that people who have jobs can afford food. They just want to kick people and their children off of welfare, and lie in order to blame the hungry for their suffering. Hunger is a solvable problem. It’s a political problem, not a scarcity problem. We have enough food; we don’t have the political will to get the food to the people who need it.

This Thanksgiving, millions of people will go hungry because Trump wants them to. Clinton wanted them to, before that. We have facts and figures proving that work requirements result in people who are working being denied the food assistance they need. Yet there are still people in both parties who think they are a good idea.

History tells us that when hardworking people don’t have enough to eat, governments fall. Maybe that’s the only way for this to end.

Asad reality of our broken news media is that successful terror plots get all of the coverage. We hear about the violent psychopaths who kill or injure their targets. But when one of these people fails, their story gets relegated to a brief wire-service blurb, and the country proceeds like nothing ever really happened.

A potentially country-changing terror plot was foiled on Sunday, when a New Jersey man was arrested following a disturbance during preparations for the Red Mass. The Red Mass is a Catholic service, offered at St. Matthews Cathedral in Washington, DC, that is open to every member of the legal community regardless of religious affiliation. It’s held on the Sunday before the Supreme Court returns for the start of its new term. All of the Supreme Court justices traditionally attend this event. (For those wondering why the Red Mass doesn’t violate the separation of church and state… it does. But, as The West Wing explained, we have decided to not care about that and pretend that everybody attends in their private capacity.)

This year, a man identified as Louis Geri set up a “tent” on the steps of the church, which he claimed was full of “grenades.” Authorities said they found parts necessary to make an explosive device inside his tent.

As a condition for his peaceful surrender, Geri directed the police to read his nine-page manifesto. In it, he allegedly showed “disdain for Catholicism, Judaism, Supreme Court justices and Immigration and Customs Enforcement (ICE).” Geri was taken into custody, where he is being held without bond. While the Red Mass was allowed to proceed, none of the Supreme Court justices attended the service.

We live in a violent country, one made more so by the actions of this Supreme Court. But—and I can’t believe I even have to write this—violence is not the solution to their actions. The only way to stop the theocrats on the court is to put in the work to pass legislation expanding the court or to ratify a constitutional amendment taking away lifetime appointments—or both. People who threaten the court with violence are being, among many other ugly and obvious things, lazy.

And these lazy, violent people cannot be allowed to succeed. My position on the matter is strident: Should a Supreme Court justice get assassinated in a clear act of political violence, they must be replaced by a justice from the same party, regardless of who is president and who controls the Senate. I know that Trump and the current Republican Senate would never follow this rule should one of the liberals be the victim of violence, and I am usually the last guy to suggest that Democrats should follow a restriction that Republicans will ignore. But this is a red line to me. Supreme Court reform cannot happen via the bullet or the bomb. 

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The very best way to increase the safety of Supreme Court justices is not with more security. These people could drive around in tanks (which I’m sure the conservatives would like) and it wouldn’t help. Good guys with guns do not stop bad guys with guns. The best way to ensure their safety would be for leaders of both parties to lock arms and say that should any one of these people be assassinated, they will be replaced by someone who is politically just like them.

The Bad and the Ugly

• The government is still shut down. Members of the military are about to miss their first paychecks. The already shambolic state of air traffic control is getting worse, leading to increased delays. It would be nice if the Republicans, who control the House, the Senate, the White House, and the Supreme Court, would do something about this.
• New York Attorney General Leitia James has been indicted by the Trump Department of Justice on… whatever, it doesn’t even matter. These people just use indictments to harass those who oppose them. “Mortgage fraud,” is what they’re saying, for a house James helped her niece buy. Someday these people need to be held accountable for malicious prosecution, but it won’t be today.
• A district court judge in Illinois issued a temporary restraining order preventing ICE from using “excessive force” to expel journalists and protesters from one of their concentration camps. Expect the Supreme Court to overturn this ruling soon, without explanation, on the shadow docket.
• A different district court judge in Illinois issued a temporary restraining order blocking Trump from deploying National Guard troops to Chicago. Expect the Supreme Court to overturn this ruling soon, without explanation, on the shadow docket. 
• A district court judge in New York granted a request from The New York Times to see Elon Musk’s security clearances. Expect the Supreme Court to overturn this ruling soon, without explanation, on the shadow docket.
• A district court judge in Illinois ruled that a Republican candidate, Michael Bost, did not have standing to sue the state over its mail-in ballot laws. The Supreme Court actually decided to hear arguments in this one, which is rare for them these days. But, at those arguments on Wednesday, the Republicans made it pretty clear that they will rule for Bost and allow Republicans to take yet another stab at destroying voting rights.
• A district court judge in California ordered Google to make massive changes to its app store following a ruling that Google is in violation of antitrust laws. The Supreme Court declined to hear Google’s appeal, or overturn the ruling. This will come as small consolation to Google, but the Supreme Court’s refusal to do them a solid is a pretty good indication that Google is not a fascist junta hell-bent on destroying democracy. So they have that going for them, at least.

Inspired Takes

• Tennessee state Representative Justin Pearson is running for Congress, and I don’t think I could be more excited. The Nation’s Chris Lehmann explains why.
• This country will never, ever do right by Native Americans. As we hurtle toward Indigenous People’s Day, it’s worth re-reading this 2017 piece by Rebecca Claren explaining the crisis in Native American education, caused by the US government.
• The indispensable Radly Balko draws a straight line from the “War on Drugs” to the “War on Terror” to the Trump administration’s murder of immigrants in a boat while nobody does anything to stop it.
• I have to shout out my man Jay Willis from Balls and Strikes. Last week, I wrote about Clarence Thomas’s abandonment of stare decisis and, instead of just repeating what I said, this madman went back and listened to Thomas’s and the other conservatives’ confirmation hearings to illustrate how their current position is a direct contradiction of what they said when they were applying for the job.