In what may be its most reactionary ruling since Plessy v. Ferguson, the Supreme Court decided on Sept. 8 to allow the Trump administration and Immigration and Customs Enforcement to resume overt racial profiling in immigration raids in Los Angeles. The raids, which began in June under the title of Operation At Large, have resulted in some 5,000 arrests.

The order was handed down in the case of Noem v. Perdomo on the court’s emergency, or “shadow,” docket, which consists of cases decided on an expedited basis — without comprehensive briefing and without oral arguments — outside of the normal “merits docket.” The order lifts a lower-court injunction that had barred the administration from detaining suspected undocumented immigrants based solely on their ethnicity, language, geographic location and occupations.

Like most shadow docket rulings, the Perdomo order is bare-bones, comprising a single paragraph that fails to explain the court’s rationale for its decision. Nonetheless, it sends a clear message: If you are Latino, you’d better start carrying your identification papers with you — and they had better be in order. Otherwise, you will be subject to detention, and you might just find yourself on a deportation flight to El Salvador, South Sudan or Uganda.

The Perdomo litigation originated with a lawsuit filed on behalf of a group of immigration advocacy organizations and five individuals, including two U.S. citizens who contend they were detained by ICE during Operation At Large in violation of their Fourth Amendment rights to be free from unreasonable searches and seizures. On July 11, Los Angeles District Court Judge Maame E. Frimpong issued a temporary restraining order against the administration, finding that a “mountain of evidence” supported the plaintiffs’ claims that “roving patrols” of masked federal agents were conducting indiscriminate and sometimes violent dragnet-style immigration raids of workplaces and communities.

It sends a clear message: If you are Latino, you’d better start carrying your identification papers with you.

The court’s quick overturning of Frimpong’s TRO comes as no surprise. Although the court has a long history of entertaining emergency appeals that bypass the normal appeals process — such as last-minute requests for stays of execution in death penalty cases — no president has relied on the shadow docket more than Donald Trump. According to Georgetown University law professor and shadow docket scholar Steve Vladeck, the first Trump administration sought emergency relief 41 times. By comparison, the George W. Bush and Obama administrations filed a combined total of eight emergency relief requests over a 16-year period while the Biden administration filed 19 applications across four years.

During its recently completed 2024-25 term, the court’s shadow docket exploded to more than 100 cases, fueled by the second Trump administration’s authoritarian power grab. In addition to Perdomo, the court has issued pro-Trump shadow docket orders permitting noncitizens to be deported to third-party countries with histories of egregious human rights violations; barring transgender people from serving in the military; withholding $65 million in teacher training grants to states that include diversity, equity and inclusion initiatives in their operations and curriculums; and endorsing the Department of Government Efficiency’s access to Social Security Administration records, to cite just a few instances.

And while shadow docket decisions are technically “interim” in nature — operating to remand cases to the lower courts for additional proceedings and leaving space for a possible return to the Supreme Court — they have enduring practical consequences. Unless and until the Supreme Court takes up the Perdomo case again, for example, ICE will be free to ramp up its roving masked raids in Los Angeles and other cities like Chicago, Baltimore and Washington, D.C. There are no longer any safe zones.

Of the high court’s six Republican ideologues, only Brett Kavanaugh explained his reasoning in Perdomo. In a poorly crafted opinion filled with misstatements of fact and law, Kavanaugh cited provisions in the Immigration and Nationality Act and a 1975 Supreme Court case (United States v. Brignoni-Ponce) that authorize immigration agents to briefly detain and question individuals if they have a “reasonable suspicion” (less than probable cause but more than a hunch) that the person being questioned is an alien illegally in the country. From there, however, Kavanaugh dropped the proverbial ball by remarking, without any citations to the trial court’s evidentiary record:

The Government estimates that at least 15 million people are in the United States illegally. Many millions illegally entered (or illegally overstayed) just in the last few years.
Illegal immigration is especially pronounced in the Los Angeles area, among other locales in the United States. About 10 percent of the people in the Los Angeles region are illegally in the United States—meaning about 2 million illegal immigrants out of a total population of 20 million.
Not surprisingly given those extraordinary numbers, U.S. immigration officers have prioritized immigration enforcement in the Los Angeles area. The Government sometimes makes brief investigative stops to check the immigration status of those who gather in locations where people are hired for day jobs; who work or appear to work in jobs such as construction, landscaping, agriculture, or car washes that often do not require paperwork and are therefore attractive to illegal immigrants; and who do not speak much if any English. If the officers learn that the individual they stopped is a U. S. citizen or otherwise lawfully in the United States, they promptly let the individual go. If the individual is illegally in the United States, the officers may arrest the individual and initiate the process for removal.

Given what he took for granted as the outsized illegal alien population in greater Los Angeles, Kavanaugh reasoned that it is “common sense” (his words, trust me) for ICE agents to detain any Latinos who fit the government’s criteria of suspicion based on their race, language or employment in low wage jobs.

In a blistering 21-page dissent, Justice Sonia Sotomayor, joined by fellow Democrats Elena Kaga and Ketanji Brown Jackson, took Kavanaugh to school, instructing the former Yale frat boy that the reasonable suspicion standard requires …

“… an individualized suspicion that a particular citizen was engaged in a particular crime” beyond just a “demographic profile.” …
The Fourth Amendment thus prohibits exactly what the Government is attempting to do here: seize individuals based solely on a set of facts that ‘describe[s] a very large category of presumably innocent’ people. … As the District Court correctly held, the four factors [the administration relies on]—apparent race or ethnicity, speaking Spanish or English with an accent, location, and type of work—are no more indicative of illegal presence in the country than of legal presence.

Sotomayor also educated Kavanaugh on the harsh on-the-ground realities of Operation At Large, noting several examples from the trial court record of violence and intimidation. In the L.A. suburb of Glendale, for instance …

… nearly a dozen masked agents with guns “jumped out of … cars” at a Home Depot, and began “chasing and tackl[ing] Latino day laborers without “identify[ing] themselves as ICE or police, ask[ing] questions, or say[ing] anything else. … In downtown Los Angeles, agents “jumped out of a van, rushed up to [a tamale vendor], surrounded him, and handled him violently,” all “[w]ithout asking … any questions.

In still another Home Depot encounter drawn from the evidentiary record, masked agents wearing bulletproof vests got out of a car and tear-gassed a crowd that had gathered to witness a raid. Far from being polite and respectful, Sotomayor continued, Operation At Large has sparked “panic and fear” across Los Angeles and its surrounding areas. “Countless people in the Los Angeles area,” she observed, “have been grabbed, thrown to the ground, and handcuffed simply because of their looks, their accents, and the fact they make a living by doing manual labor.”

The Fourth Amendment, she reminded her Republican colleagues, “protects every individual’s constitutional right to be free from arbitrary interference by law officers.” Sadly, she concluded, after the Perdomo ruling, “that may no longer be true for those who happen to look a certain way, speak a certain way, and appear to work a certain type of legitimate job that pays very little.”

As a Supreme Court justice constrained by the need for collegiality on the bench, Sotomayor stopped short of denouncing Kavanaugh and the court’s Republicans as enablers of racism. There is no reason for the rest of us to feel so reserved.

With the midterms more than a year away, US President Donald Trump and his enablers have launched a new war on voting rights. Its immediate target is November 2026; its ultimate goal is the institutionalization of one-party control of the federal government. This political “final solution” is the last step in MAGA’s quest to extinguish liberal democracy in America.

The war is being fought along legal and political fronts that stretch across the marble halls of the Supreme Court, Trump’s executive orders, Steve Bannon’s seedy podcast, the transformation of Immigration and Customs Enforcement (ICE) into a latter-day Praetorian Guard, and threats to invoke the Insurrection Act.

The Supreme Court, the Voting Rights Act, and Racial Gerrymandering

When it comes to voting rights, no single institution has been more destructive than the nation’s top judicial body under the hypocritical leadership of Chief Justice John Roberts.

In his 2005 Senate confirmation hearing, Roberts promised to serve as chief justice in the fashion of a baseball umpire, calling “balls and strikes, and not to pitch or bat.” That was nonsense then, and it’s nonsense now.

Roberts has always been a Republican insider and activist, dating back to his stint in the early 1980s as a crusading young lawyer in the Justice Department, where he wrote upward of 25 memos, suggesting strategies to limit the scope of the Voting Rights Act (VRA), the landmark legislation passed by Congress in 1965 to outlaw racial discrimination in voting.

Redistricting experts predict that if the GOP gambit in Texas and elsewhere succeeds, the party could hold the House until 2050.

In 2013, he made good on his lifelong mission by authoring the infamous 5-4 majority opinion in Shelby County v. Holder, one of the most regressive rulings in Supreme Court history. Shelby gutted sections 4 and 5 of the VRA, which had required state and local jurisdictions, mostly in the South, with histories of egregious voter suppression, to obtain advance federal approval—a process known as “preclearance”—before making changes to their election procedures. Roberts declared in Shelby that “things have changed dramatically” since the passage of the VRA and that racial discrimination in voting no longer took place.

Shelby left Section 2 of the VRA as the last remaining bulwark of the law. That section prohibits voting practices that discriminate on the basis of race, color, or language. Both the Supreme Court and the lower federal courts have long recognized the right of private parties and organizations to file lawsuits under Section 2 to challenge “racial gerrymanders,” which occur when a state uses race as the primary factor in redistricting to dilute the voting power of minority populations. Civil rights groups like the American Civil Liberties Union and the NAACP Legal Defense Fund have used Section 2 litigation to force the creation of numerous majority-Black or “majority-minority” voting districts to give minorities a fair chance to elect candidates that reflect their views.

All that could change when Roberts and his Republican benchmates hear oral arguments in Louisiana v. Callais on October 15. The case stems from a complaint brought by a group of individuals who describe themselves in court filings as “non-Black voters.” They contend Louisiana violated their 14th Amendment rights to equal protection when it created a second Black-majority voting district in 2024 to give Black voters, who comprise nearly a third of the state’s electorate, proportional representation in the state’s six-member congressional delegation. If the court agrees with them, it could gut Section 2, leading to the elimination of an estimated 11 Black-majority districts, all held by Democrats, across GOP-controlled Southern states. Such a decision would neuter what little remains of the VRA.

Political Gerrymandering, Texas and California

Even if the court rules against the “non-Black” plaintiffs in Callais, it has given its blessings to another method of election rigging known as “partisan gerrymandering”—the practice of drawing state voting districts to benefit the political party in power. In 2019, by way of a 5-4 majority opinion penned by Roberts, Rucho v. Common Cause, the court held that partisan gerrymandering, no matter how disproportional or extreme, presents a “nonjusticiable political question” that lies beyond the jurisdiction of federal judges to alter or correct.

Both parties have traditionally engaged in partisan gerrymandering, but the GOP has perfected the technique in the wake of Rucho, with Texas as a prime example. Responding to a direct demand from Trump, the state has drafted a new congressional voting map designed to give Republicans an additional five House seats. Other Republican states, including Florida, Indiana, Missouri, and Ohio, are likely to heed Trump’s plea and revise their voting maps before the midterms.

The GOP’s moves have finally awakened a fighting spirit among Democrats, but the outcome of the counterattack is uncertain. Led by Gov. Gavin Newsom, California has set a special election for this November to consider a ballot proposition that would suspend the state’s current congressional map, which was drawn by an independent commission, and replace it with one that could give Democrats a five-seat boost to match the Texas power-grab. Democrats in New York, Illinois, and Maryland reportedly are exploring ways to follow Newsom’s lead.

Meantime, the Texas redo is a done deal, offering Trump and the GOP a clear path to retaining their stranglehold on federal power. Redistricting experts predict that if the GOP gambit in Texas and elsewhere succeeds, the party could hold the House until 2050.

Trump’s Executive Orders, Proclamations, and Rants

Emboldened by the Supreme Court’s 2024 Roberts-authored decision on presidential immunity (Trump v. United States), Trump has made good on his pledge to be a “dictator on Day One” of his second term, releasing a torrent of autocratic executive orders and proclamations. These include an executive order issued on March 25 with the Orwellian title of “Preserving and Protecting the Integrity of American Elections.” Among the order’s many directives is a requirement for voter ID to prove citizenship, and a prohibition on counting mail-in ballots that are sent in by Election Day but delivered afterward.

On April 24, federal district court judge Colleen Kollar-Kotelly, a Clinton appointee who sits in Washington, DC, issued a preliminary injunction, blocking the ID requirement and other provisions, noting that “Our Constitution entrusts Congress and the states—not the president—with the authority to regulate federal elections.” Unfortunately, the judge’s order failed to address the constitutionality of the Safeguard American Voter Eligibility (SAVE) Act, which in many respects tracks the executive order. The SAVE Act was passed by the House on April 10 and is now pending before the Senate.

A permanent one-party state controlled by Trump and the GOP will set back women’s interests indefinitely.

Undeterred by the courts, Trump has doubled down on his demands, vowing to impose nationwide voter ID by presidential fiat, ban mail-in ballots and replace voting machines with hand counting. In remarks delivered at the White House on August 18, he claimed that “mail-in ballots are corrupt,” and no other country permits them. In fact, some 34 countries allow them.

Trump has also demanded a new census that would exclude undocumented aliens to be conducted as soon as possible. The census is mandated every 10 years by the Constitution and is used to determine how many House seats are apportioned to each state. To date, no census has been conducted mid-decade, and never have the undocumented been excluded.

The Impact on Women

The election law changes demanded by Trump and the GOP will also undermine the voting power of women.

According to the Pew Research Center, despite the Democratic Party’s declining approval ratings, women remain 12 percentage points more likely than men to affiliate with the Democrats. Exit polling conducted by CNN after the last election found a similar gender gap, showing that women nationwide voted for former Vice President Kamala Harris over Trump by a 10% margin. Black women in particular have been the most reliable supporters of the Democratic Party. In 2024, a whopping 92% of Black women opted for Harris, continuing a decades-long trend.

Women also hold more liberal values than men on a variety of key political issues, such as abortion access, gun control, environmental protection, and racial justice. This is especially true of younger women between the ages 18 and 29. A permanent one-party state controlled by Trump and the GOP will set back women’s interests indefinitely.

Steve Bannon and ICE

On his War Room podcast on August 19, right-wing fulminator Steve Bannon upped the ante in the voting rights war, calling for the deployment of ICE to monitor polling places to ensure that “If you don’t have an ID—if you’re not a citizen—you’re not voting.”

It is, of course, illegal under federal law to deploy the military or armed federal troops to patrol polling places as monitors or observers unless they are needed to repel an armed invasion. A section of the US Code makes it a felony punishable by up to five years in prison to do so. The Voting Rights Act also prohibits federal agents from intimidating voters, and the Posse Comitatus Act of 1868 generally proscribes using the military as civilian law enforcement.

These safeguards could easily be circumvented by an ICE army that will be 10,000 strong by the midterms simply by staging high-profile immigration enforcement operations anywhere in blue cities on Election Day. The intimidation effect would be palpable.

The Insurrection Act and the Final Solution

Should all other options for election-rigging appear unavailing by 2026, Trump will have one final card to play: declaring a national emergency and invoking the Insurrection Act of 1807 to delay or even suspend the elections. The act provides an exception to the prohibitions of the Posse Comitatus Act, and as Attorney General Pam Bondi and the Justice Department will no doubt argue, all other federal statutes.

Trump threatened to invoke the Insurrection Act in 2020 in response to the George Floyd protests, and again this past June in response to protests in Los Angeles. Never in American history has the act been invoked to disrupt an election. But if Trump feels sufficiently threatened by a potential loss of power, there is little reason to believe he would not choose to become the first. Nor could we count on the Supreme Court to try to stop him.

In the end, as always, the fate of the American experiment with democracy will depend not on our institutions, but on our collective will to preserve it at the ballot box and beyond. Each of us has an obligation to spread the word and peacefully resist in whatever way we can.

NOW READ: Trump isn’t just axing the Constitution — he’s axing something we all love

There are nearly 25 million naturalized citizens in the United States, accounting for 7% of the total population. Each and every one of them should be laser-focused on the Trump administration’s plans to denaturalize and deport as many of them as possible.

This story originally appeared at Truthdig.

Denaturalization is the process by which the federal government revokes the citizenship of persons born outside of the country who became citizens by meeting the standards set by Congress in the Immigration and Nationality Act, which include swearing an oath of allegiance to the United States, and demonstrating “good moral character.”

Although denaturalization rates have declined over the past several decades, there is ample historical precedent for the revival President Donald Trump is planning. Between 1906 and 1967 — when the Supreme Court stepped in to tighten the legal requirements — more than 22,000 Americans were denaturalized. Many were left-wing activists who were singled out during the two Red Scares of the 20^th century. A common method to denaturalize them was to accuse them of fraud in taking their oaths of allegiance. In 1919, in perhaps the most famous case of all, the government deported Emma Goldman to Russia under the Anarchist Exclusion Act after revoking her naturalized citizenship. In the 1950s, the government tried but failed to denaturalize labor leader Harry Bridges.

On June 11, Assistant Attorney General Brett Shumate wrote a memorandum that lists denaturalization as one of the Department of Justice’s top legal objectives to further Trump’s political goals. The memo was directed to the DOJ’s Civil Division, the department’s largest litigating component, which represents the United States and its executive agencies, members of Congress, cabinet officers and other federal employees in thousands of legal matters each year. It instructed the division’s attorneys to “prioritize and maximally pursue denaturalization proceedings in all cases permitted by law and supported by the evidence,” focusing on 10 broad categories of enforcement actions:

1. Cases against individuals who pose a potential danger to national security, including those with a nexus to terrorism, espionage, or the unlawful export from the United States of sensitive goods, technology, or information raising national security concerns;
2. Cases against individuals who engaged in torture, war crimes, or other human rights violations;
3. Cases against individuals who further or furthered the unlawful enterprise of criminal gangs, transnational criminal organizations, and drug cartels;
4. Cases against individuals who committed felonies that were not disclosed during the naturalization process;
5. Cases against individuals who committed human trafficking, sex offenses, or violent crimes;
6. Cases against individuals who engaged in various forms of financial fraud against the United States (including Paycheck Protection Program [“PPP”] loan fraud and Medicaid/Medicare fraud);
7. Cases against individuals who engaged in fraud against private individuals, funds, or corporations;
8. Cases against individuals who acquired naturalization through government corruption, fraud, or material misrepresentations, not otherwise addressed by another priority category;
9. Cases referred by a United States Attorney’s Office or in connection with pending criminal charges, if those charges do not fit within one of the other priorities; and
10. Any other cases referred to the Civil Division that the Division determines to be sufficiently important to pursue.

The first nine categories are generally consistent with the government’s existing powers, reflecting Trump’s penchant for exploiting the loopholes and weak links in current law whenever feasible. The 10th category, however, is a wildcard that could expand those powers exponentially and lead to a Red Scare encore.

And as dark and dangerous as that possibility sounds, it may be perfectly legal.

Article I, Section 8, Clause 4 of the Constitution grants Congress the power to establish a “uniform Rule of Naturalization.” Pursuant to this authority, Congress passed the first naturalization act in 1790, and ratified additional acts well into the late 19^th century. But it was not until the passage of the Naturalization Act of 1906 that Congress federalized naturalization procedures. The act incorporated earlier race-based legislation that limited naturalization to white people and those with African origins. It also created the Bureau of Immigration Services, the precursor of the present-day U.S. Citizenship and Immigration Services agency, which promulgated uniform application forms, and began the process of moving naturalization jurisdiction to the federal courts. (Prior to 1906, immigrants were able to apply for citizenship before any court of record, including state and municipal courts. In 1990, Congress shifted jurisdiction from the federal courts to the executive branch, where it remains to this day, although naturalization ceremonies are still conducted by federal district court judges.)

The Naturalization Act of 1906 was also the first federal law that provided for denaturalization, centered on individuals who had obtained citizenship by fraud, were racially ineligible and lacked “good moral character.” The act was amended on several occasions, most notably in 1952 by the McCarthy-era McCarran-Walter Act, which added provisions for denaturalization based on activities deemed subversive or connected to communist or communist-front organizations.

Today’s denaturalization procedures are set forth in two sections of Title 8 of the U.S. Code. Section 1451 authorizes the Department of Justice to institute civil proceedings, alleging that citizenship was “illegally procured” or obtained “by concealment of a material fact or by willful misrepresentation.” The section also mandates denaturalization for individuals who refuse to testify before a congressional committee concerning their alleged subversive activities in cases where they have been convicted of contempt for such refusals.

Section 1425 of Title 8 authorizes criminal prosecutions, making it a felony punishable by 25 years in prison to knowingly procure, “contrary to law, the naturalization of any person.” A conviction results in automatic denaturalization.

Once denaturalized under either section, a person returns to their immigration status before becoming a citizen, rendering them vulnerable to deportation.

It’s easy to see why Trump and his advisers have opted to emphasize civil denaturalization proceedings over criminal prosecutions. In civil cases, there is no right to a jury trial or court appointed counsel, and there is no statute of limitations. The standard of proof is also lower. According to the Supreme Court’s precedent decisions, to prevail, the government must present “clear, convincing and unequivocal evidence” that the targeted individual obtained citizenship illegally or willfully misrepresented a material fact during the naturalization process. That is a rigorous test, but one far lower than the “beyond a reasonable” doubt standard for criminal prosecutions.

The first Trump administration attempted to make denaturalization a priority, launching an initiative dubbed “Second Look,” which built upon a similar Obama administration program called “Operation Janus” to identify alleged terrorists and fraudsters who had naturalized. In the end, however, Trump 1.0 filed a mere 102 denaturalization cases, amounting to an annual rate higher than the 16 cases per year filed under Obama, and eclipsing the total of 24 cases filed under Biden, but still miniscule. This time around, Trump 2.0 is pledging to bring the resources of the entire DOJ civil division behind the effort, reviving the specter of mass denaturalization.

The Shumate memo had largely flown under the media’s radar until Trump started talking in early July about deporting former best bro Elon Musk and New York City mayoral candidate Zohran Mamdani, and stripping comedian and longtime celebrity nemesis Rosie O’Donnell of her citizenship.

O’Donnell, who is seeking dual citizenship in Ireland, appears safe from Trump’s clutches as she was born in Commack, New York, and enjoys birthright citizenship under the 14^th Amendment. Even Trump’s January executive order attacking birthright citizenship for the children of undocumented immigrants would leave her unscathed.

Musk and Mamdani are another story, as both are naturalized citizens. Musk, born in South Africa, naturalized in 2002. Mamdani, born in Uganda to Indian parents, naturalized in 1998. Musk allegedly worked illegally in the U.S. in violation of his student visa after leaving Stanford University in 1995. Mamdani has been accused of posting comments on X quoting rap lyrics suggesting support for Hamas.

Even if Trump’s threats against O’Donnell, Musk and Mamdani are basically performative, thousands of less affluent naturalized citizens will likely be caught up in the coming denaturalization dragnet. Millions more who are not targeted will be intimidated from exercising their First Amendment rights to free speech and full political engagement. The net result will be a society less diverse and less free for the vast majority, exactly what Donald Trump and his cohorts want.

John Roberts came to the U.S. Supreme Court professing the best of intentions. In his 2005 Senate confirmation hearing, he promised to serve as chief justice in the fashion of a baseball umpire, calling only “balls and strikes, and not to pitch or bat.” Two years later, in an interview with law professor Jeffrey Rosen, he mused that the court’s many acrimonious 5-to-4 decisions could lead to “a steady wasting away of the notion of the rule of law” and ultimately undermine the court’s perceived legitimacy as a nonpartisan institution.

This story first appeared at The Progressive.

Roberts said that as the court’s leader, he would stress a “team dynamic,” encouraging his colleagues to join narrow, unanimous decisions rather than sweeping split rulings.

“You do have to put [the Justices] in a situation where they will appreciate, from their own point of view, having the court acquire more legitimacy, credibility, that they will benefit from the shared commitment to unanimity in a way that they wouldn’t otherwise,” he reasoned.

Today, that reasoning is on the cutting-room floor. Although the court’s conservatives today outnumber its liberals by a 6-to-3 margin, the tribunal remains fractured and is widely regarded as just another political branch of government. According to a Reuters/Ipsos poll released in mid-June, neither Republicans nor Democrats see the nation’s top judicial body as neutral. Just 20% of respondents to the poll agreed that the Supreme Court is unbiased while 58% disagreed.

Instead of healing divisions on the bench, Roberts and his Republican confederates old and new, including three justices nominated by Donald Trump, have issued a blistering succession of polarizing and reactionary majority opinions on voting rights, gerrymandering, union organizing, the death penalty, environmental protection, gun control, abortion, affirmative action, campaign finance, the use of dark money in politics, equality for LGBTQ+ people, and perhaps most disastrous of all, presidential immunity.

The court’s reputation has also been tainted by a series of ethics scandals involving its two most right-wing members, Justices Clarence Thomas and Samuel Alito, over the receipt of unreported gifts from Republican megadonors. Alito came under added fire for flying an American flag upside down (sometimes used as a symbol of distress at mostly left-wing protests) outside his Virginia home just a few months after the insurrection on January 6, 2021.

The court’s lurch to the far-right accelerated in the recently concluded 2024-2025 term, driven in large part by the immunity ruling — Trump v. United States, penned by Roberts himself — and the authoritarian power grab that it has unleashed. The decision effectively killed special counsel Jack Smith’s election-subversion case against Trump. It also altered the landscape of constitutional law and the separation of powers, endowing presidents with absolute immunity from prosecution for actions taken pursuant to their enumerated constitutional powers, such as pardoning federal offenses and removing executive officers from their departments; and presumptive immunity for all other “official acts” undertaken within the “outer perimeter” of their official duties.

Seemingly emboldened by the ruling, Trump has made good on his boast to be a “dictator on day one” of his second stint in the White House, releasing a torrent of executive orders and proclamations aimed at dismantling federal diversity, equity, and inclusion (DEI) programs; eviscerating environmental regulations; imposing sanctions on liberal law firms and elite universities; creating the so-called Department of Government Efficiency (DOGE); authorizing mass deportations; and ending birthright citizenship under the Fourteenth Amendment, among dozens of other edicts.

Trump’s executive orders have generated a myriad of legal challenges, some of which reached the Supreme Court this past term as emergency, or “shadow docket,” appeals. The challenges placed Roberts and his conservative benchmates in the uncomfortable but entirely predictable position of balancing the judiciary’s independence as a co-equal branch of government with their fundamental ideological support of Trump’s policy agenda. By the term’s end, it was clear that ideology had won the day.

One of the first signs that Trump 2.0 would cause renewed headaches for the court occurred at the outset of the president’s March 4, 2025, address to a joint session of Congress. As he made his way to the podium, Trump shook hands with retired Justice Anthony Kennedy and with Justices Brett Kavanaugh, Amy Coney Barrett, and Elena Kagan. Nothing appeared out of the ordinary until he approached Chief Justice Roberts, whose hand he took, and with a pat on the shoulder could be heard saying, “Thank you again. Thank you again. Won’t forget.”

Donald Trump greets John Roberts at the U.S. Capitol. Win McNamee/Pool via REUTERS

Whether Trump was thanking Roberts for his immunity ruling was ambiguous, but on March 18, Roberts was compelled to issue a rare public rebuke of the president after Trump called for the impeachment of U.S. District Judge James Boasberg for issuing two temporary restraining orders (TROs) that halted the deportation of alleged Venezuelan gang members under the Alien Enemies Act of 1798. “For more than two centuries, it has been established that impeachment is not an appropriate response to disagreement concerning a judicial decision. The normal appellate review process exists for that purpose,” Roberts said in a statement released by the court.

The rebuke, however, came too late to stop the removal of two planeloads of Venezuelans to El Salvador in apparent defiance of Boasberg’s TROs, sparking concerns that Trump might ultimately defy the high court as well, and trigger a full-scale constitutional crisis.

The deportation controversy, along with several others, quickly came before the Supreme Court. On April 7, by a 5-to-4 vote with Justice Barrett in dissent, the majority granted the administration’s request to lift Boasberg’s TROs and remove the cases for further proceedings to the Fifth Circuit Court of Appeals, which covers Texas, where the named plaintiffs and other potential class members in the litigation (who had not yet been deported) were being detained under the Alien Enemies Act (AEA). The court’s four-page per curiam order (Trump v. J.G.G.) was unsigned, and, in a small defeat for the administration, also instructed that the detainees had the right to receive advance “notice and an opportunity to challenge their removal” by means of habeas corpus petitions.

In a related unsigned eight-page ruling (A.A.R.P. v. Trump) issued on May 16, this time by a 7-to-2 vote with Justices Thomas and Alito in dissent, the court blocked the administration from deporting alleged Venezuelan gang members held in northern Texas under the AEA, but also held that the detainees could be deported “under other lawful authorities.”

In another unsigned immigration decision released on April 10 (Noem v. Abrego Garcia), the court ordered the Trump administration to “facilitate” the return of Kilmar Armando Ábrego García, a resident of Maryland married to a U.S. citizen who had been sent to his native El Salvador because of an “administrative error.” Ábrego García was brought back to the United States in early June, and was indicted on charges of smuggling migrants and conspiracy.

The court waited until June 23 to release its most draconian immigration decision of the term (DHS v. D.V.D.), holding 6 to 3 that noncitizens under final orders of removal can be deported to third-party countries, even ones with records of severe human-rights violations. And on June 27, in a highly technical but very important procedural ruling (Trump v. CASA) on Trump’s birthright citizenship order, the court held 6 to 3 that district court judges generally lack the power to issue nationwide injunctions. Although the decision did not address the constitutionality of the executive order or the substantive scope of the 14th Amendment’s provision extending citizenship to virtually all persons born in the country, it sent three legal challenges to the order back to three district court judges who had blocked the order from taking effect. The litigation continues.

The immigration cases were decided on the court’s “shadow docket,” a term of art coined by University of Chicago professor William Baude in a 2015 law review article. It describes emergency appeals that come before the court outside of its standard “merits” docket that are typically resolved rapidly, without complete briefing, detailed opinions, or, except in the CASA case, oral arguments.

The Supreme Court has a long history of entertaining emergency appeals—such as last-minute requests for stays of execution in death penalty cases—but emergency requests in high-profile cases proliferated during Trump’s first presidency. According to Georgetown University law professor and shadow-docket scholar Steve Vladeck, the first Trump Administration sought emergency relief 41 times, with the Supreme Court granting relief in 28 of those cases. By comparison, the George W. Bush and Obama administrations filed a combined total of eight emergency relief requests over a16-year period while the Biden administration filed 19 applications across four years.

Fueled by Trump’s authoritarian overreach, the court’s shadow docket exploded to more than 100 cases in 2024-2025 while the merits docket shrank to 56. Not surprisingly, the upsurge has generated significant pushback, with a variety of critics contending the shadow docket diminishes the court’s already limited transparency, and yields hastily written and poorly reasoned decisions that are often used by the conservative wing of the bench to expand presidential power, essentially adopting the “unitary executive” theory as a basic principle of constitutional law. Popularized in the 1980s, the unitary theory posits that all executive power is concentrated in the person of the president, and that the president should be free to act with minimal congressional and judicial oversight.

Although shadow-docket rulings are preliminary in nature, they sometimes have the same practical effect as final decisions on the merits. For example, on May 22, in an unsigned two-page decision (Trump v. Wilcox), the Supreme Court stayed two separate judgments issued by two different U.S. District Court for the District of Columbia judges that had blocked the Trump administration from firing members of the National Labor Relations Board (NLRB) and the Merit Systems Protection Board (MSPB) without cause. The decision remanded the cases back to the D.C. Circuit and the district courts, but even as the board members continue to litigate their unlawful discharge claims, they remain out of work.

Shadow-docket rulings also have an impact on Supreme Court precedents, often foreshadowing how the court will ultimately rule on the merits of important issues. The Wilcox decision called into question the precedential effect of Humphrey’s Executor v. United States, decided in 1935, which held that Congress has the constitutional power to enact laws limiting a president’s authority to fire executive officers of independent agencies like the NLRB, which oversees private-sector collective bargaining, and the MSPB, which adjudicates federal employee adverse-action claims.

The three appointed to the court by Democrats dissented. Writing for herself and Justices Sonia Sotomayor and Ketanji Brown Jackson, Justice Kagan accused the Republican-appointed majority of political bias and acting in bad faith. “For 90 years,” she charged, “Humphrey’s Executor v. United States... has stood as a precedent of this court. And not just any precedent. Humphrey’s undergirds a significant feature of American governance: bipartisan administrative bodies carrying out expertise-based functions with a measure of independence from presidential control.”

Quoting Alexander Hamilton, she added, “To avoid an arbitrary discretion in the courts, it is indispensable that they should be bound down by strict rules and precedents.” She castigated the majority for recklessly rushing to judgment, writing, “Our emergency docket, while fit for some things, should not be used to overrule or revise existing law.”

The court also issued other pro-Trump emergency shadow-docket rulings in the 2024-2025 term, permitting the administration to bar transgender people from serving in the military and to withhold $65 million in teacher training grants to states that include DEI initiatives in their operations and curriculums. The court similarly used shadow-docket rulings to endorse DOGE’s access to Social Security Administration records and to insulate DOGE from a Freedom of Information Act lawsuit brought by the watchdog group Citizens for Responsibility and Ethics in Washington (CREW).

Yet despite the court’s deference, Trump complained about his treatment at critical junctures throughout the term. After the shadow-docket ruling blocking deportations under the Alien Enemies Act in May, he took to Truth Social, his social media platform, writing in all caps, “THE SUPREME COURT WON’T ALLOW US TO GET CRIMINALS OUT OF OUR COUNTRY!” It also has been widely reported that Trump has raged in private against his own appointees—especially Justice Barrett—for not being sufficiently supportive of his executive orders and initiatives, and his personal interests.

Meanwhile, back on the merits docket, with Roberts at the helm and with Barrett and the conservatives united, the court has continued to tack mostly to the right, giving Trump nearly everything he wants. On June 18, Roberts delivered a resounding victory to the Make America Great Again movement with a 6-to-3 opinion (United States v. Skrmetti) that upheld Tennessee’s ban on gender transition medical care for minors. The decision will have wide-ranging implications for 26 other states that have enacted similar bans. Echoing the sentiments of many liberal legal commentators, Slate writer Mark Joseph Stern described the ruling as “an incoherent mess of contradiction and casuistry, a travesty of legal writing that injects immense, gratuitous confusion into the law of equal protection.”

Joe Biden delivers remarks on Ketanji Brown Jackson’s confirmation to the Supreme Court. REUTERS/Kevin Lamarque

In other high-stakes merits cases, the court, by a vote of 6 to 3, approved South Carolina’s plan to remove Planned Parenthood from its Medicaid program because of the group’s status as an abortion provider; and held 6 to 3 that parents have a religious right to withdraw their children from instruction on days that “LGBTQ+-inclusive” storybooks are read.

Progressives searching for a thin ray of hope for the future might take some solace in the spirited performance of Justice Jackson, the panel’s most junior member, who has become a dominant force in oral arguments, and a consistent voice in support of social justice. Dissenting from a 7-to-2 decision (Diamond Alternative Energy LLC v. Environmental Protection Agency) that weakened the Clean Air Act, she ripped the majority for giving “fodder to the unfortunate perception that moneyed interests enjoy an easier road to relief in this court than ordinary citizens.”

Eras of Supreme Court history are generally defined by the accomplishments of the court’s chief justices. The court of John Marshall, the longest-serving chief justice who held office from 1801 to 1835, is remembered for establishing the principle of judicial review in Marbury v. Madison. The Court of Earl Warren, whose tenure stretched from 1953 to 1969, is remembered for expanding constitutional rights and the landmark Brown v. Board of Education decision.

The Roberts Court will be remembered for reversing many of the Warren era’s advances. But unless it suddenly changes course, it will also be remembered as the court that surrendered its independence and neutrality to an authoritarian president.

NOW READ: The deep state is real — and it works for Donald Trump

Just how bad is the Supreme Court’s June 27 decision on birthright citizenship? Among progressive and liberal commentators, the thinking is surprisingly mixed. Some assert that Trump v. CASA “couldn’t be more disastrous” and will leave the Trump administration with “blood on its hands”; others see “silver linings” in the ruling.

This article originally appeared on Truthdig.

The reason for the diverse reactions is simple: The 6-3 majority decision written by Justice Amy Coney Barrett didn’t address the underlying issue in the case—the constitutionality of President Donald Trump’s executive order ending birthright citizenship under the 14th Amendment for the children of undocumented immigrants. Instead, Barrett and the conservative majority produced a complicated and confusing procedural ruling that leaves the executive order in legal limbo, intact for now but subject to further litigation.

As I have written before, Trump’s birthright order defies the plain text of the very first sentence of the 14th Amendment. Known as the “Citizenship Clause,” the sentence reads: “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.”

Had Barrett and her confederates not ducked the underlying issue of the executive order’s constitutionality, they would have been forced either to rewrite the Citizenship Clause to uphold the order—a step even they apparently are not yet prepared to take—or invalidate a centerpiece of the MAGA mass deportation agenda.

The executive order stunningly disregards these easily understood words, proclaiming that the amendment “has never been interpreted to extend citizenship universally to everyone born within the United States,” but was adopted only to repudiate the Supreme Court’s infamous Dred Scott decision that denied citizenship to Black Americans.

But while repudiating Dred Scott was the immediate impetus for crafting the Citizenship Clause, the Senate and the House debates in 1866 extended far beyond that notorious decision.

The clause was introduced in the Senate by Jacob Howard of Michigan on May 30, 1866, as an add-on to the draft of the 14th Amendment formulated by the House. The clause tracked similar language contained in the Civil Rights Act of 1866 and followed the general principles of English common law and the ancient doctrine of jus solis (the “law of the soil’’)—the principle that all those born within the geographic boundaries of a nation are citizens at birth. (More than 30 countries today recognize the doctrine, including the United States, Canada, and Mexico. Great Britain modified its nationality law in 1981.)

In his introductory remarks, Howard noted the phrase “subject to the jurisdiction” of the United States meant that the citizenship clause would not apply to the children of ambassadors or foreign ministers, the children of occupying foreign soldiers, or to the offspring of Native Americans who claimed allegiance to tribal governments, but that the clause would “include every other class of person,” regardless of race or descent. (Native Americans were accorded citizenship by legislation passed in 1924.)

The citizenship clause, Howard said, “settles the great question of citizenship and removes all doubt as to what persons are or are not citizens of the United States.”

Trump’s executive order also contradicts the court’s precedent opinions dating back to the landmark 1898 case of United States v. Wong Kim Ark, which recognized the citizenship of a man born in the U.S. to parents who at the time were subjects of the Chinese Emperor but domiciled in California. That case and other later decisions demonstrate the inclusive nature of the Citizenship Clause.

Had Barrett and her confederates not ducked the underlying issue of the executive order’s constitutionality, they would have been forced either to rewrite the Citizenship Clause to uphold the order—a step even they apparently are not yet prepared to take—or invalidate a centerpiece of the MAGA mass deportation agenda.

In the end, they chose to do neither.

But they still managed to hand Trump the next best thing to a total victory. Barrett’s ruling granted the administration’s request for a “partial stay” (or pause) on three nationwide preliminary injunctions that had been issued by three federal district court judges—which blocked the birthright order from taking effect anywhere in the country—and sent the cases back to the district judges for further consideration to weed through and apply the jurisprudential mess that Barrett left behind.

In a tortured analysis that New York Magazine’s Chas Danner called “an originalist fever dream,” Barrett limited the court’s review to the sole question of whether, under the Judiciary Act of 1789, federal courts have the authority to issue nationwide, or “universal,” injunctions. The act was one of the first laws passed by Congress after the ratification of the Constitution, and in modified form remains on the books in Title 28 of the United States Code. And as Barrett noted, it is the Judiciary Act that has endowed federal courts with jurisdiction over “all suits… in equity,” and that “still today… authorizes the federal courts to issue equitable remedies,” such as injunctions.

As an originalist, Barrett interprets the Constitution and federal statutes rigidly according to their text and their “original public meaning,” discounting evolving legal norms and practices as well as contemporary social values and needs. When it comes to universal injunctions, however, originalists have a problem. No federal statute, including the Judiciary Act, explicitly authorizes judges to issue nationwide injunctions, but no statute prohibits them from doing so.

In the absence of any guidance from the 1789 act, Barrett and the majority revved up their originalist wayback machine to examine how the English High Court of Chancery operated at the time of the founding, asking if that court issued forms of equitable relief analogous to contemporary universal injunctions. “The answer,” she wrote, “is no.” Equitable remedies at the time of the founding, she concluded, could provide “complete relief between the parties” to a lawsuit, but “complete relief is not synonymous with universal relief” that applies throughout an entire country.

But then, in another confusing twist, Barrett offered the aforementioned silver linings, writing that legal challenges to Trump’s birthright order might proceed under the Administrative Procedures Act, or as class actions, or in lawsuits brought by individual states seeking relief on behalf of their own residents, which 22 states to date have joined. Barrett left it to the district courts to determine which of these alternative legal avenues might suffice, and she gave them 30 days to do so before the executive order takes effect.

In a blistering dissent, Justice Sonia Sotomayor charged that Barrett’s opinion “kneecaps the Judiciary’s authority to stop the Executive from enforcing even the most unconstitutional policies” and that “newborns subject to the Citizenship Order will face the gravest harms imaginable,” jeopardizing their “chance to participate in American society… unless their parents have sufficient resources to file individual suits.”

In another scathing dissent, Justice Ketanji Brown Jackson blasted Barrett’s opinion “as an existential threat to the rule of law.”

Trump, by contrast, hailed the court’s decision, boasting that it will unblock other items on his political agenda that have been stymied by district court injunctions.

In the meantime, attorneys in the CASA case have amended their complaint to proceed as a class action, and New Jersey Attorney General Matthew Platkin has expressed confidence that broad injunctions stopping Trump’s executive order can still be enforced in lawsuits filed by state governments.

Whether the new legal maneuvers succeed remains to be seen. None would be necessary if the Supreme Court had stood up to Trump and done its job in the first place.

In an unsigned two-page decision (Trump v. Wilcox) released on May 22, the Supreme Court upheld the Trump administration’s move to fire members of the National Labor Relations Board and the Merit Systems Protection Board without cause and in the middle of their designated terms. The decision reversed two separate judgments issued by two different D.C. District Court judges that had blocked the firings as unconstitutional.

The Supreme Court’s ruling was issued on an expedited basis as part of a rapidly expanding and highly controversial set of truncated decisions known as the “shadow docket,” a term coined by University of Chicago professor William Baude in a 2015 law review article to describe emergency appeals that come before the court outside of its standard “merits” docket and that are typically resolved without complete briefing, oral arguments or detailed opinions. Although shadow-docket rulings are frequently used to lift, or “stay,” lower-court injunctions while further litigation continues, they often have the same practical effect as final decisions.

The two officials involved in the Wilcox case, Gwynne Wilcox of the NLRB and Cathy Harris of the MSPB, were nominated to their positions by President Joe Biden and were confirmed by the Senate. Before their dismissals, they were set to serve fixed terms, with Wilcox’s tenure expiring in 2028 and Harris’ in 2029.

The NLRB’s five-member governing board is charged with enforcing U.S. labor law and collective bargaining, and adjudicating alleged unfair labor practices. The MSPB has a three-member board and adjudicates federal employee challenges to adverse employment actions. Both agencies were established by Congress to operate as independent, nonpartisan overseers free from presidential interference.

Donald Trump has long railed against agency independence. In a 2019 speech at Turning Point USA’s Teen Action Summit, he declared, “I have an Article 2, where I have the right to do whatever I want as president,” referring to the second article of the Constitution and the “unitary executive” theory, which contends that all executive power is concentrated in the president. Trump is also a proponent of the goal of “deconstructing the administrative state,” a phrase popularized by Steve Bannon and more recently promoted by Project 2025.

Donald Trump has long railed against agency independence.

Sensing an opportunity to strike, Trump fired Wilcox, a career labor attorney, on Jan. 27, a week after his second inauguration. Harris was sent packing a month later. The lower-court orders mandating their reinstatements were issued in March. But on April 9, Trump’s solicitor general and former criminal defense attorney D. John Sauer requested the Supreme Court to intervene and put the district-court judgments on hold, allowing the dismissals to take effect while returning the cases to the district courts and the Court of Appeals for additional hearings, a process that could easily take more than a year.

In his petition to the Supreme Court, Sauer implored the justices to disregard the court’s 1935 precedent decision in Humphrey’s Executor v. United States, which held that Congress has the constitutional power to enact laws limiting the president’s authority to fire executive officers of independent agencies that exercise quasi-legislative or quasi-judicial functions. Sauer asked the justices to put the lower-court reinstatement orders on hold or, alternatively, issue a final decision on the merits, endorsing the administration’s actions.

Although the firings of Wilcox and Harris clearly ran afoul of Humphrey’s, the Supreme Court granted a stay, and both women were sacked. Just as shocking, the court did so without hearing oral arguments, and without citing Humphrey’s a single time in its decision.

The three Democratic-appointees on the court dissented. Writing for herself and justices Sonia Sotomayor and Ketanji Brown Jackson, Justice Elena Kagan blasted her Republican colleagues for their bad faith and bias in favor of the president. “For 90 years,” she charged, “Humphrey’s Executor v. United States … has stood as a precedent of this Court. And not just any precedent. Humphrey’s undergirds a significant feature of American governance: bipartisan administrative bodies carrying out expertise-based functions with a measure of independence from presidential control.”

Quoting Alexander Hamilton, she continued, “To avoid an arbitrary discretion in the courts, it is indispensable that they should be bound down by strict rules and precedents.” Without mentioning the shadow docket by name, she castigated the majority for rushing to judgment, “unrestrained by the rules of briefing and argument — and the passage of time — needed to discipline our decision-making.”

Although the Supreme Court has a long history of entertaining emergency appeals — such as last-minute requests for stays of execution in death penalty cases — emergency requests in high-profile cases proliferated during Trump’s first term, earning the shadow-docket sobriquet. According to Georgetown University law professor and shadow-docket scholar Steve Vladeck, the first Trump administration sought emergency relief 41 times, with the Supreme Court granting relief in 28 of those cases. By comparison, the George W. Bush and Barack Obama administrations filed a combined total of eight emergency relief requests over a 16-year period.

In December 2017, the Supreme Court issued a shadow-docket ruling allowing the third and final version of Trump’s racist Muslim travel ban to move forward pending further appeals. The court ultimately approved the ban in a 2018 merits decision. Later in Trump’s first go-round, the court used the shadow docket to uphold Trump’s executive actions calling for the diversion of federal funds to construct the southern border wall, prohibiting transgender people from openly serving in the military and restricting the ability of Central American refugees to seek political asylum.

During Biden’s presidency, the shadow docket shifted to emergency requests filed by red state governments and private parties, but the court maintained its rightward bias. Among other shadow-docket decisions, the court ended Biden’s COVID-19 eviction moratorium; permitted the new six-week Texas abortion ban to take effect (it would later approve the ban in a final decision that overturned Roe v. Wade); and reinstated a first-Trump-term policy that made it easier for companies to pursue projects that pollute U.S. waters.

“What we are seeing are the consequences of a deeply conservative court.”

Kagan is not alone in her critique that the shadow docket undermines precedent and lacks transparency. At times the criticism has become heated. In September 2021, Atlantic staff writer Adam Serwer triggered an open feud with Justice Samuel Alito, penning a column that accused the court’s right-wing majority of publishing its ruling on Texas’ abortion law in the middle of the night to minimize public outcry. In response, Alito excoriated the media during an hour-long live-streamed speech delivered at Notre Dame University for portraying the court’s majority as “a dangerous cabal that resorts to sneaky and improper methods to get its ways,” and for feeding “unprecedented efforts to intimidate the court or damage it as an independent institution.”

Fortunately, not every shadow-docket order has leaned in the direction of Trump and the MAGA movement. One notable exception was the court’s May 16 ruling that extended an earlier ban on the deportation of undocumented Venezuelan men in immigration custody in Texas under the Alien Enemies Act of 1798. But even that decision ended with a note of encouragement for Trump, advising that “The Government may remove the [men] … under other lawful authorities.” There was also an impassioned 14-page dissent written by Alito and joined by Justice Clarence Thomas.

On May 30, the court issued another pro-Trump shadow-docket order, allowing the Trump administration to revoke the temporary legal status of more than 500,000 immigrants from Cuba, Haiti, Nicaragua and Venezuela that had been granted by the Biden administration. And in the coming weeks and months, the court can be expected to return to the shadow docket again in cases involving the deportation of undocumented migrants to South Sudan, the operations of the Department of Government Efficiency (DOGE) and possibly the legality of Trump’s tariffs.

Given the court’s overall jurisprudence, there is scant reason to be optimistic that it will openly repudiate or substantially limit the president’s authority in these or other cases critical to the nation’s future. As Elizabeth Wydra, president of the liberal Constitutional Accountability Center, told Reuters in a 2021 interview, “What we are seeing are the consequences of a deeply conservative court, with the added travesties of the shadow docket.”

NOW READ: The question no one is asking

If you’re counting on the 2026 midterm elections to wrest control of Congress from the GOP, be forewarned. The party is taking no chances on the upcoming plebiscite and has hatched a plan to rig all future federal elections with the goal of transforming the United States into a one-party state.

This article originally appeared on Truthdig.

At the center of the plan is the Safeguard American Voter Eligibility Act, passed on April 10 by the House and pending before the Senate, and an executive order issued by President Donald Trump on March 25 with the Orwellian title of “Preserving and Protecting the Integrity of American Elections.” And looming in the background, with the final word on either measure’s constitutionality, is the Supreme Court, packed with three Trump appointees and holding a long and sorry record of hostility to voting rights.

The SAVE Act would require all Americans to provide a birth certificate, passport or some other documentary proof of citizenship in person every time they register or re-register to vote; require each state to take affirmative steps on an ongoing basis to ensure that only U.S. citizens are registered to vote; and remove noncitizens from their official voter lists. It would also create a private right of action, after the fashion of the Texas anti-abortion law, to allow disgruntled individuals to sue election officials who register voters without obtaining proof of citizenship and establish criminal penalties of up to five years in prison for election officials who violate the act.

The dangers posed by the SAVE Act cannot be understated.

Trump’s executive order is no less extreme. Among its directives is a mandate for the Election Assistance Commission, an independent nonpartisan agency created by Congress, to require voters to submit documentary proof of their citizenship when using national voter registration forms. It would also stop states from counting mailed-in ballots votes that are sent in by Election Day but are delivered afterward, require recertification of all state voting systems to meet new security standards set by the EAC and halt election assistance funding to states that do not comply with the terms of the order within 180 days. Perhaps most alarming, the order would allow the Department of Government Efficiency and the Department of Homeland Security to subpoena state records and use federal databases to review state voter registration lists.

There is some good news amid the darkness. On April 24, federal district court judge Colleen Kollar-Kotelly, a Clinton appointee who sits in Washington, D.C., issued a 120-page opinion and preliminary injunction, blocking the EAC from adding documentary proof of citizenship to the national voter registration form. “Our Constitution entrusts Congress and the states — not the president — with the authority to regulate federal elections,” Kollar-Kotelly wrote, holding that Trump’s order violated the separation of powers and referring to Article I, Section 4, Clause 1 of the Constitution, which states:

The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of chusing [original text] Senators.

But while voting-rights groups have praised Kollar-Kotelly’s opinion, the judge left the rest of the executive order in place. More concerning, the ruling did nothing to derail the SAVE Act. As the judge noted, “Consistent with [the separation of powers doctrine], Congress is currently debating legislation that would effect many of the changes the president purports to order.”

“Congress has never passed a voter-suppression law like this before.”

The dangers posed by the SAVE Act cannot be understated. According to a survey conducted by the Brennan Center and affiliated organizations, more than 9% of American voting-age citizens, or 21.3 million people, don’t have a passport, birth certificate, naturalization papers or other proof of citizenship readily available. “Voters of color, voters who change their names (most notably, married women), and younger voters would be most significantly affected,” the Brennan Center has warned.

In an article posted after the House approved the act, Democracy Docket, the digital election news platform founded by attorney Marc Elias, featured the views of a group of distinguished historians and voting experts on the act.

“There’s never been an attack on voting rights out of Congress like this,” Alexander Keyssar, a professor of history and social policy at the Harvard Kennedy School, told the Docket. “It’s always been the federal government trying to keep states in check on voting rights, for the most part.”

“Congress has never passed a voter-suppression law like this before,” Sean Morales-Doyle, the director of the Brennan Center’s voting-rights program, said. “When it has exercised its power to regulate federal elections, Congress has usually done so to protect the freedom to vote. If this becomes law, it will be a new low for Congress.”

Princeton professor Sean Wilentz also weighed in with a dire assessment. “It’s the most extraordinary attack on voting rights in American history,” Wilentz said, characterizing the act as “the latest attempt to gut voting-rights advances that were made in the 1960s,” one more dangerous than the Jim Crow-era laws used in the South, because it is national in scope. “This is an attempt to destroy American democracy as we know it.”

All eyes now turn to the Senate, where Democrats have the power to filibuster the SAVE Act to prevent its passage unless 60 members vote to invoke cloture. Thus far, the Democrats seem to be holding the line, even in the face of persistent propaganda spewed by Trump, Elon Musk and other Republicans that election fraud is rampant and that Democrats are “importing [undocumented] voters” to swing elections. In truth, of course, election fraud in the U.S. is miniscule, with some long-range state-by-state studies finding it occurs at rates between 0.0003% and 0.0025% of total votes cast.

Should any part of the SAVE Act pass and be signed into law, it will likely come before the Supreme Court, where its fate may turn on Chief Justice John Roberts, who along with Amy Coney Barrett, sometimes aligns with the panel’s liberals in big cases.

Roberts, however, has a long history of undermining voting rights that stretches back to his stint as a young lawyer in the Reagan administration and his role as a behind-the-scenes GOP consultant, lawsuit editor and prep coach for oral arguments before the Supreme Court in the run-up to Bush v. Gore, the case that decided the 2000 presidential election.

“This is an attempt to destroy American democracy as we know it.”

In 2013, as chief justice, he composed the disastrous majority opinion in Shelby County v. Holder, which gutted the Voting Rights Act. In 2019, he continued his anti-voting-rights crusade, writing the majority opinion Rucho v. Common Cause, which removed the issue of political gerrymandering (the practice of designing voting maps to benefit the party in power) from the jurisdiction of federal courts. And in 2021, he joined a 5-to-4 majority ruling penned by Justice Samuel Alito that upheld Arizona laws prohibiting out-of-precinct voting and criminalizing the collection of mail-in ballots by third parties.

In the meantime, hundreds of lawyers have resigned from the Justice Department, repelled by Trump’s reactionary policies. As the New York Times has reported, the exodus has been especially felt hard at the department’s civil rights division, whose mission Trump has transformed from one of opposing voter suppression to stamping out phony claims of rampant election fraud.

All of this is happening step by step, setting the stage for what could turn out to be the final chapter for American democracy. Not only is it not too early to start thinking about the midterms, it may already be too late.

NOW READ: Ask yourself what would have happened if Barack Obama said this

For the first time since 2014, and the last time until 2087, Easter Sunday will fall on April 20. The 20th will also mark the last day of Passover, Chinese Language Day, International Cannabis Day and the 136^th anniversary of the birth of Adolf Hitler. There’s a lot going on.

This article originally appeared on TruthDig.

But of all the observances and events that will take place, only one has the potential to alter the course of American democracy. April 20 is the deadline Defense Secretary Pete Hegseth and Homeland Security Agency head Kristi Noem have for submitting a joint report to President Donald Trump about conditions at the southern border, along with their recommendations for invoking the Insurrection Act of 1807 and the National Emergencies Act of 1976.

Hegseth and Noem were given this task by a presidential proclamation declaring a state of emergency at the border, and an accompanying executive order (EO No. 14159) that Trump issued on Jan. 20. The edicts gave the department leaders 90 days to reach their conclusions. Both are based on the theory that the U.S. faces an invasion of undocumented migrants on its southern flank, and are part of a larger set of 51 executive orders, 12 memorandums and four proclamations Trump promulgated on the first day of his second term.

There are some fine distinctions between EOs, presidential memoranda and proclamations — principally, that EOs are directed specifically at federal agencies and must be published in the Federal Register while the others need not be — but the order and the emergency proclamation work as a package and must be read in tandem. EO 14159 is entitled “Protecting the American People Against Invasion.” It begins, in the histrionic fashion of the 47^th president, blaming Joe Biden for the breakdown of our immigration system, declaring,

Over the last 4 years, the prior administration invited, administered, and oversaw an unprecedented flood of illegal immigration into the United States. Millions of illegal aliens crossed our borders or were permitted to fly directly into the United States on commercial flights and allowed to settle in American communities, in violation of longstanding Federal laws.

Many of these aliens unlawfully within the United States present significant threats to national security and public safety, committing vile and heinous acts against innocent Americans. Others are engaged in hostile activities, including espionage, economic espionage, and preparations for terror-related activities. Many have abused the generosity of the American people, and their presence in the United States has cost taxpayers billions of dollars at the Federal, State, and local levels.

To combat the invasion, the EO calls for the formation of joint interagency task forces to expand the use of expedited removal (deportations without hearings) of the undocumented, deny federal funding to “sanctuary” jurisdictions, impose criminal and civil penalties on undocumented persons who fail to register with the federal government, and to devise a plan to carry out such measures within 90 days.

The EO does not specifically mention the Insurrection and National Emergency acts, but the proclamation cites both statutes as sources of presidential power. In addition to the 90-day reporting deadline, the proclamation authorizes the Defense Department to complete construction of the border wall, and to deploy the Armed Forces and National Guard to assist Homeland Security to obtain “operational control” of the border.

Although the proclamation and order seem limited on their face to the immediate southern border, legally they apply to a much broader geographical area. Even without the new initiatives, federal law gives U.S. Customs and Border Patrol the power to conduct searches and make arrests within an “expanded border zone” that extends 100 miles from any external international boundary. According to the ACLU, some 200 million people live within the expanded zone, including everyone residing in New York City, Los Angeles, Chicago and the entire state of Florida. In the interior of the country as well as in the expanded zone, Immigration and Customs Enforcement (ICE) wields the power of arrest.

There have been other periods of immigrant scapegoating and persecution in U.S. history, but this is the first time that immigration enforcement has been officially linked by presidential decrees to the Insurrection Act.

Originally adopted in 1792 as the “Calling Forth Act,” the Insurrection Act on the books today authorizes the president to deploy the Army and deputize the National Guard to suppress insurrections, rebellions, instances of civil disorder and unlawful “combinations or assemblages” that obstruct the authority of the United States or the ability of any state to enforce the law.

The Insurrection Act operates as an exception to the prohibition of the domestic deployment of federal troops, as codified in the Posse Comitatus Act of 1878. It has been invoked 30 times. In the 19^th century, Abraham Lincoln utilized the act in response to southern secession at the outset of the Civil War; and Ulysses S. Grant used it during Reconstruction to respond to the rise of the Ku Klux Klan. In the 20^th century, Woodrow Wilson used the act against striking Colorado coal miners; Herbert Hoover used it against “Bonus Army” protesters in Washington, D.C.; Dwight D. Eisenhower used it to enforce the integration of public schools in Little Rock, Ark.; and George H.W. Bush used it in response to the 1992 riots in Los Angeles.

Trump threatened to invoke the Insurrection Act in 2020 to quell mass demonstrations related to the murder of George Floyd, but reportedly was restrained from doing so by former Joint Chiefs Chairman Gen. Mark Milley and other “grown-ups” in his first administration. This time around, the grown-ups have left the building. There are no restraints.

Invoking the National Emergencies Act poses additional dangers in Trump’s hands, allowing him to unilaterally activate an estimated 150 statutory powers. These include the authority to waive the minimum comment periods for proposed regulations, seize American citizens’ assets without due process and, perhaps most alarming of all, shut down or take over private communications systems.

If any of this comes to pass, it won’t just be undocumented migrants, foreign students, asylum seekers and suspected gang members who end up in the crosshairs. We could all be at risk.

“The first thing we do, let’s kill all the lawyers.”
—Dick the Butcher, Henry VI

Donald Trump’s crusade against his opponent’s lawyers represents a new front in his war on the rule of law.

In a series of moves that seem culled from the authoritarian playbooks of Tayyip Erdoğan, Vladimir Putin and Viktor Orbán abroad, and that harken back to the dark days of McCarthyism and the second Red Scare here at home, Trump has slapped three prominent private law firms with longstanding ties to the Democratic Party with executive orders designed to impose crippling sanctions on their operations. The orders charge the law offices with “weaponizing the judicial process” against Trump, and call for terminating their federal contracts; suspending the security clearances of at least some of their attorneys; and limiting their access to federal government buildings, presumably including courtrooms.

In an astonishing development, the New York Times reported last week that one of the firms — Paul, Weiss, Rifkind, Wharton & Garrison LLP (Paul Weiss), headquartered in New York City — has buckled under the pressure and negotiated a deal with Trump to rescind the executive order issued against the firm on March 14. In return, Paul Weiss agreed to end its diversity, equity and inclusion hiring and promotion practices, as well as to represent clients regardless of their political party affiliations. The firm has also agreed to contribute $40 million in legal services to promote causes Trump has championed, such as his presidential task force to combat antisemitism.

What did Paul Weiss do to warrant such humiliation? Its “offense,” as outlined in the March 14 executive order, involved the decision of one of its former partners, Mark Pomerantz, to enlist as a special assistant to the Manhattan district attorney in 2021 to investigate Trump’s hush-money payments to porn star Stormy Daniels and his pre-presidential business practices, a full nine years after Pomerantz had resigned from the firm. Pomerantz abruptly ended his stint with the D.A. in 2022, but subsequently made the talk-show circuit hawking his memoir on the experience, “People v. Donald Trump: An Inside Account,” outraging our thin-skinned president.

Sarah Longwell referred to the settlement as an illustration of “mob boss government.”

The settlement has left legal observers dumbstruck and dismayed, with many describing the outcome as an unethical “shakedown” that will embolden Trump to seek even more revenge in the future. In a post on X, Bulwark editor Sarah Longwell referred to the settlement as an illustration of “mob boss government.”

The two other targeted firms — Covington & Burling of Washington, D.C., and Perkins Coie of Seattle — have so far refused to buckle.

Trump’s beef with Covington was set forth in a presidential memorandum issued on Feb. 25 that directed the attorney general, the secretary of state and five other cabinet officials to investigate the firm for its pro bono (“for the public good”) representation of former special counsel Jack Smith. A financial disclosure filed by Smith in January disclosed that he had received $140,000 in free legal services from the firm to help him prepare for potential investigations launched by the administration and MAGA zealots in Congress.

Trump’s contempt for Perkins Coie, which regularly represents the Democratic National Committee and worked for Hillary Clinton’s 2016 presidential campaign, runs deeper. On March 6, he signed an executive order that referred to the firm as “dishonest and dangerous” and accused it of teaming up with George Soros to fund the opposition research that helped create the controversial “Steele dossier” on Trump’s alleged ties to Russia. At the time, the firm’s election-law practice group was headed by Marc Elias, who left the office in 2021, and has since become the Democrats’ go-to advocate for voting rights and a constant thorn in Trump’s side.

Rather than cave, Perkins Coie filed suit against the administration. On March 12, it obtained a temporary restraining order from District Court Judge Beryl Howell that halts the bulk of the executive order from taking effect pending further litigation. In comments from the bench, Howell denounced the order as an unconstitutional “use of taxpayer dollars and government resources … to pursue a personal vendetta” that “threatens to undermine our entire legal system and the ability of all individuals to access justice in the American judicial system.” In a pointed reference to Lewis Carroll’s “Alice’s Adventures in Wonderland”, she declared, when “the Queen of Hearts yells ‘off with their heads’ for her subjects, that cannot be the reality we are living under.”

And yet, that is indeed fast becoming our reality. No matter how the Covington and Perkins Coie cases are resolved, Trump has signaled his assault on the legal profession is just beginning. In a rambling and sometimes incoherent speech delivered to Justice Department staff on March 14, he reprised his disputes with Elias and Pomerantz, blasting them as “radicals” and “really bad people” who … “tried to turn America into a corrupt communist and Third World country.” He also called Manhattan D.A. Alvin Bragg, New York attorney general and attorneys Norm Eisen and Andrew Weissman, “scum” who “coordinate” their legal work with liberal media outlets like CNN and “MSDNC.” Their work, he warned, is “illegal” and “has to stop.”

As another portent of further reprisals to come, the Equal Employment Opportunity Commission, once a staunch defender of civil rights, has sent letters to 20 major law firms, including Perkins Coie, seeking detailed information about their DEI practices that the agency asserts may violate the Civil Rights Act of 1964, which prohibits employment discrimination.

Trump has signaled his assault on the legal profession is just beginning.

And on March 21, Trump sent a lengthy memo to Attorney General Pam Bondi, instructing her to flag any law firms that have filed “frivolous” lawsuits against his first and second administrations so they can be targeted for penalties like those imposed on Paul Weiss, Perkins Coie and Covington & Burling.

Trump has coupled his assault on the legal profession with heated attacks on federal judges, including a demand for the impeachment of District Judge James Boasberg for issuing a temporary restraining order to halt the deportation of suspected Venezuelan gang members under the auspices of the 1798 Alien Enemies Act. Echoing the president, Elon Musk has called for the impeachment of all federal judges who rule against Trump’s initiatives. The resulting hostility to the courts has become so extreme that some judges have begun to voice concerns for their physical safety.

Trump may not be the sharpest student of history, but he is a master of the art of intimidation, having learned the craft at the at the feet of Roy Cohn, the deeply immoral lawyer who served as Sen. Joseph McCarthy‘s chief counsel during the 1954 Army-McCarthy hearings, and who operated as Trump’s mentor and general consigliere in the 1970s. Trump knows from firsthand experience that intimidation works.

If the past is prologue, Trump will not easily or soon reverse course. If he succeeds in bringing the nation’s biggest law firms to heel, he may well turn his attention to the progressive legal community and organizations like the ACLU, the NAACP Legal Defense Fund and the National Lawyers Guild. We have been there before with McCarthyism and COINTELPRO, when lawyers on the left were routinely surveilled, cited for contempt of court and sometimes jailed simply for doing their jobs. We cannot afford to go back.

You know you are in deep constitutional trouble when your president invokes an apocryphal quote attributed to Napoleon Bonaparte to justify his contempt for the rule of law. On Feb. 15, Donald Trump took to his Truth Social platform and his personal X account to post the quote, “He who saves his Country does not violate any Law.” Later the same day, the official White House X account sent out the same message.

People who imitate Napoleon have long fascinated psychiatrists. In their field, “Napoleonic delusions” are classified as a subtype of the wider emotional disorder known as grandiosity. But whether Trump actually suffers from a definable mental illness or is simply trolling the libs, there is ample reason to believe he thinks he is above the law; or perhaps more accurately, that he is the law.

All of this looks to be pointing directly to a full-blown constitutional crisis.

Since his inauguration on Jan. 20, Trump has undertaken a variety of sweeping Napoleonic actions aimed, among other targets, at rolling back birthright citizenship guaranteed by the 14^th Amendment; impounding and freezing federal funds appropriated by Congress; asserting direct presidential control over independent federal agencies like the Securities and Exchange Commission, Federal Trade Commission, Federal Communications Commission, National Labor Relations Board and U.S. Agency for International Development; pink-slipping thousands of federal workers; expunging all diversity, equity, inclusion and accessibility programs from all federal agencies; removing LGBTQ mandates in government; and creating the Department of Government Efficiency to give Elon Musk and his post-pubescent DOGE minions authority to access confidential Treasury Department, IRS and Social Security databases. Vice President JD Vance has also floated the idea of defying adverse court orders.

Trump has been aided in his power grab by supine Republican majorities that have rubber-stamped his appointment of cabinet members. And while lower-court judges have pushed back against some of Trump’s actions, many of his executive orders appear headed to a Supreme Court firmly in the hands of a six-member MAGA-friendly majority, including three justices nominated by Trump himself.

All of this looks to be pointing directly to a full-blown constitutional crisis.

Although there is no universally accepted definition of a constitutional crisis, experts generally agree the term applies to situations where the Constitution no longer works as designed. In a 2017 essay for LawFare, Princeton political scientist Keith Whittington subdivided constitutional crises into “operational” and “fidelity” categories. The operational type, according to Whittington, occurs “when important political disputes cannot be resolved within the existing constitutional framework.” Crises of constitutional fidelity occur when the Constitution’s meaning is clear, but one or more branches of government or a key political actor willfully defies the national charter’s clear meaning.

Law professors Jack Balkin of Yale and Sanford Levinson of the University of Texas at Austin have added a third type of crisis to the operational/fidelity taxonomy that occurs when a power struggle breaks out between political rivals who allege the other is violating the Constitution and neither is willing to budge.

The archetypal constitutional breakdown, embodying all three dimensions, was the secession crisis that led to the Civil War. By the late 1850s, the slave-based economy of the Southern states had become incompatible with the wage-based industries of the North. The Constitution effectively ceased to function as more territories sought admission to the union and the balance between slave and free states could no longer be maintained.

Some commentators point to lesser historical antecedents such as the disputed election of 1876 that resulted in the election of Rutherford B. Hayes and the end of Reconstruction; Franklin Delano Roosevelt’s conflict with the Supreme Court over the New Deal; and the Watergate scandal of Richard Nixon.

What all constitutional crises share is an attempt to impose a paradigm shift in the practice of governance. And while Trump is no intellectual powerhouse, his narcissism and obsession with revenge make him the perfect instrument for promoting transformative ideas masterminded by others. These include:

The unitary executive theory

Harkening back to Nixon’s infamous declaration that “when the president does it, that means it is not illegal,” the unitary theory was first articulated as an explicit doctrine during the Reagan administration. Among its early proponents were Reagan-era Attorney General Edwin Meese and Samuel Alito, then a deputy in the Office of Legal Counsel.

In a widely cited 2006 essay, professors Karl Manheim and Allan Ides of Loyola Law School in Los Angeles described the doctrine as a theory of presidential supremacy that undermines the constitutional scheme of checks and balances:

The theory of the unitary executive is anything but an innocuous or unremarkable description of the presidency. In its stronger versions, it embraces and promotes a notion of consolidated presidential power that essentially isolates the Executive Branch from any type of Congressional or judicial oversight.

The theory was also championed by Bill Barr during his time as an OLC deputy in the George H.W. Bush administration. In 2018, Barr, then in private practice, restated his views in an unsolicited memorandum he sent to the Justice Department, criticizing the work of Special Counsel Robert Mueller, writing:

The Constitution itself places no limit on the President’s authority to act on matters which concern him or his own conduct. … He alone is the Executive branch [and] the sole repository of all Executive powers.

In February 2019, Trump made Barr his attorney general. The following July, Trump gave a speech, asserting that under Article II of the Constitution [which sets forth the powers of the presidency], “I have the power to do whatever I want.” Barr remained in office, operating in effect as Trump’s personal consigliere until December 2020, when he resigned under duress after failing to find widespread fraud in the 2020 election.

The radical constitutionalism of Russell Vought

A more aggressive version of the unitary theory animated by religious zealotry has been crafted by Russell Vought, recently confirmed for a second stretch as head of the Office of Management and Budget.

Vought is a graduate of the Georgetown University Law Center, a self-described Christian Nationalist, and a founder of the Center for Renewing America, a right-wing think tank dedicated to “forging a consensus of America as a nation under God.” Most importantly, he was one of the prime architects of Project 2025, the Heritage Foundation-sponsored blueprint for Trump’s second term.

There is no question that Vought’s ideas have caught Trump’s attention.

In a 2022 article written for the Claremont Institute, Vought urgently called for the restoration of presidential power as originally envisioned by the founders and for the defeat of progressive “living constitutionalism,” the jurisprudential model that holds the meaning of the Constitution should evolve over time. What is needed, Vought contends, is a form of “radical constitutionalism” committed to bolstering presidential power and curbing the power of the courts to bring the separation of powers back into balance and harmony.

There is no question that Vought’s ideas have caught Trump’s attention, as shown by his second nomination to head OMB and by Trump’s persistent pandering to the religious right.

Common-good constitutionalism

Dissatisfied with both originalism and living constitutionalism, Harvard Law professor Adrian Vermeule has come up with an alternative known as “common good constitutionalism.” Rather than pursue the fruitless quest of trying to discern the original intent of the founders or undertaking an endless quest to expand individual rights, Vermeule argues that judges should promote the “common good.”

Vermeule distilled his theory in the April 2000 issue of the Atlantic, writing that the goal of common good constitutionalism

is not is not to maximize individual autonomy or to minimize the abuse of power (an incoherent goal in any event), but instead to ensure that the ruler has the power needed to rule well … to promote substantive moral principles that conduce to the common good, [such as] respect for the authority of rule and of rulers; respect for the hierarchies needed for society to function … [and] a candid willingness to “legislate morality.”

Analytically, Vermeule fails to adequately define the common good, and to the extent he does in the article and elsewhere, his formulations are infused with the principles of “integralism,” an ideology that calls for subordinating the state to the values of the Catholic Church. Like proponents of the unitary executive theory, Vermeule calls for a strong president who pursues the common-good through “reasoned morality” for the benefit of all. Rather than rebelling, Vermeule suggests:

Subjects will come to thank the ruler whose legal strictures, possibly experienced at first as coercive, encourage subjects to form more authentic desires for the individual and common goods, better habits, and beliefs that better track and promote communal well-being.

Politically, Vermeule has been linked to fellow integralist Vance. In a recent post on X, he praised Vance’s incendiary address on free speech and religious freedom delivered at the Munich Security Conference this month.

The Dark Enlightenment

Still operating on the fringes of mainstream discourse but growing in potency is the Dark Enlightenment, also known as “the neo-reactionary movement,” an informal futuristic community of political theorists, academics, internet bloggers and Silicon Valley investors who believe that democracy has run its course and is no longer compatible with individual liberty.

Most Americans will be loath to hand over their rights and freedoms to a new Napoleon.

The movement emerged in the 2000s, inspired by the work of British philosopher Nick Land and American software engineer Curtis Yarvin. Convinced that democracy inevitably leads to social decline, decadence and deep-state totalitarianism, proponents call for democracy to be supplanted by a technocracy run by a powerful CEO-style monarch. The movement reportedly has influenced the thinking not only of Vance, but also of Musk (note the dark MAGA hats sported of late), tech titan Peter Thiel and Michael Anton, a former speech writer for Rupert Murdoch, Rudy Giuliani and Condoleezza Rice. In January, Trump appointed Anton to serve as director of policy planning in the State Department.

The most important question, of course, is whether the new paradigms and the constitutional crisis they have helped spawn will succeed in ending democracy. Despite the wreckage produced by Trump’s early actions, there is cause for hope. Current polling shows Trump’s approval ratings are tanking. According to the most recent Gallup survey, Trump is the least popular president in more than 70 years.

It will take time for an effective opposition to form. But in the long run, most Americans will be loath to hand over their rights and freedoms to a new Napoleon. The worst thing we can do now is surrender.

“Everything faded into mist. The past was erased, the erasure was forgotten, the lie became truth.“
– George Orwell, “1984”

Birthright citizenship in the United States is guaranteed by the first sentence of the 14^th Amendment. Known as the “citizenship clause,” the provision 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.

Measured against the text of the amendment, Donald Trump’s executive order terminating birthright citizenship for the children of undocumented immigrants is patently unconstitutional. But ultimately that may not matter. With Trump assuming near-dictatorial powers in his second term, we are entering an Orwellian post-constitutional era in which the law is whatever the president and his lackeys on the Supreme Court say that it is at any given moment.

In true Orwellian fashion, the executive order is titled, “Protecting the Meaning and Value of American Citizenship.” It makes no mention of the U.S.-born children it could disenfranchise. According to the Washington Post, more than 150,000 children born in the country each year would no longer qualify for citizenship under the order and could end up stateless.

The order, which takes effect on Feb. 19, begins with a proposition accepted by all constitutional scholars: that the 14^th Amendment was adopted in 1868 to override the Supreme Court’s infamous 1857 Dred Scott ruling, which denied citizenship to Black Americans, even those living in non-slave states. From there, however, the order veers sharply from the current academic and legal consensus, asserting, in highly misleading fashion, that “the 14^th Amendment has never been interpreted to extend citizenship universally to everyone born within the United States,” and that the amendment “has always excluded from birthright citizenship persons who were born in the United States but not ‘subject to the jurisdiction thereof.’”

We are entering an Orwellian post-constitutional era.

Under the order, citizenship will no longer extend to U.S.-born children whose mothers were unlawfully present in the country at the time of birth if their fathers were not citizens or lawful permanent residents, nor to children whose mothers were lawfully present, but whose fathers were neither citizens nor lawful permanent residents. The latter category includes parents in the country on tourist or student visas, or work permits. Such children will not be issued any federal documents recognizing them as U.S. citizens, such as passports.

Trump has long vowed to end birthright citizenship, accusing the undocumented of “poisoning the blood of our country” and turning the U.S. into “the garbage can of the world.” In 2015, he opened his presidential campaign by accusing Mexico of “sending” drug smugglers and “rapists” into the U.S. Then, as now, he wasn’t simply bemoaning the presence of undocumented immigrants or tapping into our long and sorry traditions of nativist scapegoating; he was accusing Mexico — and later, other underdeveloped nations — of deliberately staging an invasion of the United States.

The invasion thesis operates at the heart of the MAGA movement and the legal theory behind the new executive order. Proponents of the theory, such as Texas Gov. Greg Abbott, assert that the country is facing an “invasion” of illegal aliens akin to a state of war. Other proponents, such as Yale Law School professor Peter Schuck, Heritage Foundation senior legal fellow Hans von Spakovsky and Jan. 6 coup-plotter John Eastman, contend that undocumented immigrants are not “subject to the jurisdiction of the United States” within the meaning of the 14^th Amendment because they owe allegiance to foreign powers.

Nothing could be farther from the truth, or our actual history. In addition to contradicting the plain text of the 14th Amendment, the executive order departs from the original intent of the framers of the amendment, as well as the Supreme Court’s precedent decisions on birthright citizenship.

Debates on the 14^th Amendment took place in 1866 in both the House and Senate, and were reported in the Congressional Globe, the precursor of today’s Congressional Record.

The citizenship clause was introduced in the Senate by Jacob Howard of Michigan on May 30, 1866, as an add-on to the initial draft of the 14th Amendment formulated by the House. The clause tracked similar language contained in the Civil Rights Act of 1866 and followed the general principles of English common law and the ancient doctrine of jus solis (the “law of the soil’’) — the idea that all those born within the geographic boundaries of a nation are citizens at birth. (More than 30 countries today recognize the doctrine, including the United States, Canada and Mexico.)

In his introductory remarks, Howard noted the phrase “subject to the jurisdiction” of the United States meant that the citizenship clause would not apply to the children of ambassadors or foreign ministers, the children of occupying foreign soldiers, or to the offspring of Native Americans who claimed allegiance to tribal governments, but that the clause would “include every other class of person,” regardless of race or descent.

The citizenship clause, Howard said, “settles the great question of citizenship and removes all doubt as to what persons are or are not citizens of the United States.”

The Supreme Court has endorsed Howard’s reading of the citizenship clause in at least four decisions: United States v. Wong Kim Ark (1898), dealing with the readmission into the country of a Chinese-American man whom the government sought to exclude because he had been born in the U.S. to parents who were subjects of the Chinese emperor at the time of his birth; Plyer v. Doe (1982), concerning the right of undocumented children to attend public schools; INS v. Rios-Pineda (1985), a deportation proceeding; and Hamdi v. Rumsfeld (2004), in which the court’s plurality opinion noted that a Guantanamo Bay inmate held as an “enemy combatant” was still a citizen entitled to due process because he was born in Louisiana.

He is counting on the Supreme Court to come to his rescue again on the birthright issue.

Trump’s legal game plan is to get his executive order to the Supreme Court, which is now firmly in the hands of a six-member MAGA-friendly majority, including three justices nominated by Trump himself. Last year, the court came to Trump’s rescue in two landmark cases. In the first, it overturned Colorado’s decision to deny Trump a place on its 2024 presidential ballot under the 14^th Amendment’s insurrectionist clause in Trump v. Anderson; the second accorded him unprecedented immunity from criminal prosecution in Trump v. United States. He is counting on the Supreme Court to come to his rescue again on the birthright issue, either by overruling its prior decisions or holding them inapplicable to the current immigration crisis.

Before the executive order reaches the Supreme Court, it will have to be reviewed by the lower federal courts. To date, six challenges to the order have been filed in federal district courts across the country. On Jan. 23, District Judge John C. Coughenour, who sits in Seattle and was appointed to the bench by Ronald Reagan in 1981, granted an emergency motion for a temporary restraining order filed by the attorneys general of Washington, Arizona, Illinois and Oregon. The order enjoins the Trump administration from enforcing the executive order for 14 days, pending another hearing set for Feb. 6 to determine if a preliminary injunction should be issued.

“I’ve been on the bench for four decades, I can’t remember another case where the question presented is as clear as this one is,” Coughenour said during the Jan. 23 hearing, describing Trump’s order as “blatantly unconstitutional,” and adding, “There are other times in world history where we look back and people of goodwill can say, ‘Where were the judges? Where were the lawyers?’ Frankly, I have difficulty understanding how a member of the bar could state that this is constitutional.”

Coughenour is an old-school jurist who still believes in the words of the Constitution and the past decisions of the Supreme Court. Apparently, he doesn’t realize that, as George Orwell warned, the past can be erased.

It’s hard to say who is the worst attorney general in American history. The candidates are many and comprise a veritable rogue’s gallery of sadists, reactionaries and incompetents. They range from A. Mitchell Palmer, mastermind of the original Red Scare that decimated the left in the wake of the First World War, to Jefferson Beauregard Sessions III and William Pelham Barr, who sacrificed the rule of law in service to Donald Trump.

Merrick Garland may not share the malignancies of his fellow train wrecks, but he deserves to be in the discussion. Decades from now, historians will memorialize Garland not as a dedicated public servant and fair-minded federal judge whose nomination to the Supreme Court was torpedoed by Mitch McConnell and Senate Republicans, but as the head of the Justice Department who brought a butter knife to an existential gunfight with Trump, quickening our collective descent into neo-fascism.

After his appointment to helm the DOJ, Garland had one overarching mission: to swiftly convene a grand jury to investigate Trump for his role in inciting the Jan. 6, 2021, insurrection at the Capitol. This was a task a third-year law student could easily have accomplished. Garland failed, abjectly.

This was a task a third-year law student could easily have accomplished.

Probable cause for an early indictment was abundant and obvious. On Jan. 6, millions of Americans watched Trump stand on the Ellipse at the south end of the White House and urge his supporters to march on the Capitol and “fight like hell.” Millions watched the actual assault that followed, blow by medieval blow. Even the corrupt McConnell, who voted to acquit Trump in his second impeachment trial in February 2021, declared on the Senate floor, “There’s no question, none, that President Trump is practically and morally responsible for provoking the events of the day [Jan. 6].”

Instead of targeting Trump and his chief lieutenants immediately, Garland set out to arrest and try the foot soldiers of the uprising. And while he did a commendable job in that respect (eventually charging more than 1,500 with federal crimes), he dithered on Trump until November 2022, when he appointed Jack Smith as a special counsel to probe Trump for the insurrection and absconding from the White House with a trove of highly classified documents.

By then, it was too late.

Although Smith secured an indictment of Trump in Washington, D.C., for conspiracy, obstruction and election subversion on Aug. 1, 2023, the indictment was gutted by the Supreme Court (Trump v. United States) the following July in a decision that granted Trump sweeping and unprecedented immunity from criminal prosecution.

Written by Chief Justice John Roberts, a lifelong conservative activist with an undeserved reputation as a judicial institutionalist, the ruling is arguably the worst edict handed down by the high court since the Dred Scott case of 1857. “Trump v. United States is distinct as a deliberate attack on the core institutions and principles of the republic, preparing the way for a MAGA authoritarian regime much as Dred Scott tried to do for the slavocracy,” wrote Sean Wilenz in a scathing article for the New York Review of Books.

Smith also indicted Trump in Florida in the documents case, but that prosecution was subsequently scuttled by District Court Judge Aileen Mercedes Cannon, an inexperienced MAGA sycophant whom Trump installed on the federal bench in the runup to the 2020 election.

In addition to Garland, the Supreme Court and Cannon, Joe Biden also shares responsibility for letting Trump off the hook. From Day 1, Biden should have used the bully pulpit to attack, isolate and destroy Trump and his MAGA base. Instead, he pursued a politics of accommodation, preaching a return to the false neoliberal normalcy of bipartisanship. Most critically of all, Biden decided to seek a second term, when it was apparent to everyone with two eyes and ears that he was no longer fit, either physically or mentally, for another stint behind the Resolute Desk. With Biden’s approval rating plunging to 40%, Kamala Harris had little to no chance of defeating Trump at the polls.

But standing atop the heap, Garland will forever bear the principal stain of wimping out when courage and — to put it in the vernacular — balls were needed to stop Trump before the forces of reaction had time to regroup and reorganize. They are now in control.

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If we have learned anything about Donald Trump over the past decade, it’s that even his most outlandish threats against democracy should be taken seriously. This applies not only to his promises to exact revenge and retribution on his political opponents and critics, but also to his expressed interest in serving a third term (or more) as president.

Trump has been musing about serving three terms for a long time. In a 2018 fundraiser with donors at Mar-a-Lago, he praised Chinese President XI Jinping for being elected president for life, calling Xi “great,” and suggesting, “Maybe we’ll have to give that a shot someday.” At a campaign rally in Wisconsin in August 2020, he declared: “We are going to win four more years. And then after that, we’ll go for another four years because they spied on my campaign. We should get a redo of four years.”

His latest remarks on the subject were delivered on Nov. 13, when he told a gathering of House Republicans, “I suspect I won’t be running again, unless you say, ‘He’s so good, we’ve got to figure out something else.’

Although widely characterized as a joke, the third-term talk cannot be dismissed as just another zany part of Trump’s rambling standup schtick that has seen him praising Hannibal Lecter, extolling the size of Arnold Palmer’s penis and condemning windmills for driving whales crazy. Nor can it be taken for granted, as is commonly done, that the 22^nd Amendment would preclude Trump from securing a third stint behind the Resolute Desk.

The 22^nd Amendment provides:

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.

By its terms, the amendment prohibits presidents from being elected more than twice. It is silent as to whether a president can legally assume office more than twice by other means.

The distinction is critical because the hardcore reactionaries who dominate the Supreme Court, where any 22^nd Amendment challenge involving Trump would wind up, consider themselves to be strict “textualists.” This means that they profess to focus on the plain meaning of the words contained in the Constitution, regardless of the practical consequences. As Supreme Court Justice Amy Coney Barrett put it in her October 2020 Senate confirmation hearing: “I interpret the Constitution as a law and … I interpret its text as text, and I understand it to have the meaning that it had at the time people ratified it. So that meaning doesn’t change over time and it’s not up to me to update it or infuse my own policy views into it.”

Trump has been musing about serving three terms for a long time.

The exact meaning of the 22^nd Amendment, however, has been the subject of academic debate since the measure was ratified in 1951. In a 1999 law review article published well before Trump became a reality TV huckster much less a presidential hopeful, legal scholars Bruce Peabody and Scott Gant argued that a twice-elected president would not be prohibited from joining a new electoral ticket as a vice presidential candidate, and if elected, would not be precluded from ascending to the presidency if the head of the ticket subsequently died or resigned.

Given the degeneration of the Republican Party into a cult of personality, it is not at all unthinkable that if Trump is still physically fit in 2028 that he and JD Vance could switch places on the GOP ticket, with the goal of having Vance elected and then stepping down to allow Trump to return to the helm. There is nothing unconstitutional on its face about such a scheme. And there is no reason to think Trump’s MAGA base would raise any objections to keeping their dear leader in power.

A less likely route back to the Oval would be for Trump to be elected speaker of the House, assuming there is a Republican majority in the lower chamber in 2029. The speaker is second in line to the presidency under the Presidential Succession Act of 1947, and does not have to be a member of the chamber. There was considerable chatter in 2023 about Trump running for the speakership, and that talk could easily be revived to facilitate a third Trump term with the proper resignations of newly elected GOP stand-ins as president and vice president.

If both of those scenarios appear beyond reach, Trump could simply declare his candidacy for a third term and defy anyone to stop him. While such a move would be in direct conflict with the 22^nd Amendment and would seemingly require the amendment to be repealed in the fashion of the 21^st Amendment, which negated the 18^th and ended prohibition, some pundits on the radical right are already agitating for “Trump 2028,” contending that the 22^nd Amendment is inherently undemocratic and thus ripe for repeal.

But what if Trump, emboldened by a second term, decides to skip the laborious process of amending the Constitution altogether? Writing last February in the online journal LawFare, former associate White House counsel Ian Bassin asked why we should expect the Supreme Court to step in and declare Trump ineligible to run in 2028 if the court refuses to enforce a state’s decision to remove him from the ballot under the insurrectionist clause of the 14^th Amendment.

The insurrectionist clause is simple and straightforward, and appears tailor-made for Trump, stipulating that “No person shall … hold any office … under the United States … who, having previously taken an oath … to support the Constitution … shall have engaged in insurrection or rebellion.”

Trump could simply declare his candidacy for a third term and defy anyone to stop him.

Bassin’s article was published a month before the Supreme Court answered his question with its disastrous and hypocritical ruling in Trump v. Anderson that overturned Colorado’s decision to deny Trump a place on its 2024 presidential ballot. The court held that only Congress could enforce the insurrectionist clause. And even then, the court explained, Congress would have to enact a new statute to authorize the removal of an insurrectionist.

Prior to Anderson, a broad array of constitutional law experts, including liberal Harvard Law professor Laurence Tribe and retired conservative federal judge J. Michael Luttig, had argued that the insurrectionist clause was “self-executing” and required no enabling legislation, but only action by the courts for implementation. The Supreme Court slammed the door on this argument in Anderson, while potentially opening another on the self-executing nature of the 22^nd Amendment in a future case.

Even if the Supreme Court were to rule against a Trump third-term bid, what would stop Trump from just ignoring the court’s commands? As Alexander Hamilton wrote long ago in Federalist Paper No. 78, “The judiciary … has no influence over either the sword or the purse. … It may truly be said to have neither FORCE nor WILL, but merely judgment.”

Both Andrew Jackson (in a case involving the seizure of Native American lands) and Abraham Lincoln (on habeas corpus) defied the Supreme Court. Trump would no doubt love to outdo them both.

Donald Trump owes the Founding Fathers a deep debt of gratitude for making his past and present election-subversion plots possible. In particular, he should thank them for creating the Electoral College.

This article originally appeared on Truthdig.

Most of the 55 white men of property who convened in Philadelphia in 1787 to revise the Articles of Confederation held a deep distrust of the masses. No less than 25 of them were slave owners. They considered but quickly rejected the possibility of electing the president by direct popular vote as excessively democratic. Instead, the national charter they produced embodied a host of compromises that were at their core profoundly racist and anti-democratic. These “Faustian bargains,” as many legal commentators have called them, included the structural design of the Senate, which accords each state two members regardless of population; the protection of slavery and states’ rights with the notorious “three-fifths” compromise, which allowed three-fifths of the enslaved populations of the Southern states to be counted for purposes of determining representation in the House of Representatives; and above all, the Electoral College.

As set forth in Article II of the Constitution, the Electoral College allocates “electors” to each state based on the size of each state’s House delegation, plus two senators. The three-fifths clause was necessary to secure support for the system from slave states, as it increased their number of electors. The candidate who wins a majority of the college becomes the president.

In the event that no candidate secures a majority, Article II as modified by the 12^th Amendment (ratified in 1804) requires the House to conduct a “contingent election,” in which each state delegation, rather than each individual representative, gets one vote to determine the presidency. And under both the 12^th Amendment and the 20^th (ratified in 1933, and which moved the inauguration from March to January), it is the newly elected Congress, not the outgoing one, that makes the determination.

As Berkeley law school dean Erwin Chemerinsky explains in his latest book, “No Democracy Lasts Forever,” no other putative democracy in the world selects its chief executive in such a blatantly undemocratic manner. Because of the Electoral College, the United States has elected a president who lost the national popular vote five times — in 1824, 1876, 1888, 2000, and most egregiously, in 2016, when Trump claimed the Oval Office despite losing the popular vote to Hillary Clinton by nearly 3 million ballots. The country has conducted contingent elections for the president twice — in 1800, when the House handed the presidency to Thomas Jefferson, and in 1824, when the House selected John Quincy Adams.

Without the Electoral College and its rejection of popular democracy, Trump’s 2020 election-subversion plot, as well as the efforts currently underway, would have been unthinkable. The 2020 plan was built on a series of memos drafted by attorney Kenneth Chesebro and law professor John Eastman that called for the creation of “alternate” slates of Republican electors in swing states where Joe Biden won the popular vote. Under the plan, Vice President Mike Pence as president of the Senate would either accept the alternate slates as genuine during the joint session of Congress convened on Jan. 6, 2021, to confirm the winner; send the election back to state legislatures to reexamine their electoral certifications; or send the election to the House for a contingent ballot that would end in Trump’s favor.

The plan also called for invalidating the Election Count Act of 1887, which Congress adopted in the aftermath of the disputed 1876 contest between Republican Rutherford B. Hayes and Democrat Samuel Tilden. Like 2020, the 1876 election was plagued by allegations of fraud, and dual sets of electors from four states were submitted to Congress. Rather than forward the vote to the House, however, a special commission was appointed to determine the winner. In return for agreeing to end Reconstruction, Hayes was chosen.

The ECA spelled out in greater detail than the Constitution the procedure for tallying electoral votes. Although intended to minimize confusion and subversion, it was poorly drafted and provided inadequate safeguards. It permitted a state’s electoral votes to be challenged at the joint session if just two members of Congress, one from the House and one from the Senate, filed written objections. Once such objections were lodged, the ECA required the session to be suspended while the two chambers separated and debated the merits of the objections. If both chambers sustained the objections to a state’s votes, those votes were to be thrown out and not considered in the final electoral count. If the revised count still showed no candidate winning a majority, a contingent election in the House would ensue.

The plot failed and the ECA survived, but not before the country was nearly brought to its knees with the Jan. 6 insurrection that disrupted the joint session and the peaceful transfer of power. Pence held firm to his position that the vice president had a ministerial role limited to opening and counting electoral votes, and that he lacked the unilateral power to invalidate votes. Although objections were made to Arizona’s electoral certification, the Senate rebuffed the challenge by a vote of 93-6, and the House by a margin of 303-121.

Hoping to avoid another insurrection, Congress passed the Electoral Count Reform Act in 2022, correcting some of the ECA’s massive deficiencies. Among other provisions, the reform act clarifies the vice president’s role as strictly ministerial and provides that states may only submit a single, conclusive slate of electors certified by the governor or other designated executive official. The new act also raises the objection threshold from one representative of each chamber to one-fifth of the members of each body and it offers expedited review in federal court of election lawsuits.

The reform act will make it harder, but by no means impossible, for Trump’s current subversion scheme to work. The new plan is unfolding before our eyes, paralleling the 2020 plot with a flood of litigation contesting voting procedures in swing states, with the ultimate aim of getting at least one case before the Supreme Court, which has moved ever more sharply to the right and become little more than a tool of the MAGA movement.

Compounding the danger of renewed subversion, there is nothing in the Reform Act to prevent a far-right governor from colluding with similarly extreme state legislators to overturn the will of state voters and send a single fake slate of electors to the next joint session in 2025. Nor will the GOP be hard-pressed to meet the new 20% objection threshold if it controls both chambers of Congress come January. Most foreboding, the reform act also does nothing to alter the rules governing contingent elections in the House.

With the polls showing the race between Trump and Kamala Harris coming down to the wire, no amount of subversion from Trump and his party can be ruled out. The plot this time is far more sophisticated and informed than its 2020 predecessor. If it succeeds, we can blame the Founding Fathers for creating a system that contained the seeds of its own destruction with the deeply anti-democratic Electoral College.

The fix was in even before Chief Justice Roger Tane announced the Supreme Court’s decision in the case of Dred Scott v. Sandford on March 6, 1857. Of the nine Justices on the bench, seven had been appointed by pro-slavery Presidents, and five, including Taney, were either current or former slaveholders. Dred Scott, the enslaved Black man who sought his freedom before the highest tribunal in the land, never had a fighting chance.

This article originally appeared on The Progressive.

Reading in a barely audible voice before a packed audience in the Court’s old chamber at the U.S. Capitol, the frail seventy-nine-year-old Taney surprised no one when he announced the panel’s 7-2 majority opinion, proclaiming that Black people could never be citizens of the United States. Only two days earlier, the nation’s new President, James Buchanan, devoted a considerable portion of his inaugural address to the case, urging the Court to resolve the issue of slavery’s constitutionality once and for all, and imploring the nation to accept the Court’s resolution. Behind the scenes, Buchanan had been communicating directly with at least two Justices to pressure them and their colleagues to rule against Scott, and give their imprimatur to the doctrine of “popular sovereignty” that would leave slavery’s future to be determined by the states.

The pressure campaign resulted in a decision that went well beyond the boundaries of popular sovereignty. In words that have reverberated through the ages, Taney held that Black Americans, no matter where they resided, had “no rights which the white man was bound to respect.” Dred Scott is widely regarded as the single worst ruling in the history of the U.S. Supreme Court. It fractured an already divided country, set the stage for the election of 1860 as a battle between slavery and democracy, and helped precipitate the Civil War. The decision was roundly denounced in the North, undermined the Court’s legitimacy, and sparked a Constitutional crisis that was only resolved with the ratification of the Thirteenth, Fourteenth, and Fifteenth Amendments.

Some 167 years later, the fix was also in before Chief Justice John Roberts announced the Supreme Court’s decision on presidential immunity on July 1 in Trump v. United States, which may well be the Court’s worst ruling since Dred Scott.

Trump had been charged in the case with four felony counts by Justice Department Special Counsel Jack Smith for attempting to subvert the results of the 2020 election. Trump lost a motion to dismiss on grounds of immunity before District Court Judge Tanya Chutkan, and came up short on an appeal to the D.C. Circuit Court of Appeals. Desperate to avoid trial and a possible prison sentence, he turned to the Supreme Court.

At first considered a legal longshot, the immunity claim resonated with the Court’s six Republican Justices during the oral arguments held on April 25. Roberts disparaged the D.C. Circuit’s ruling that Presidents were not above the law or beyond prosecution as a mere “tautological statement.” Justice Neil Gorsuch, the first of Trump’s three appointees to the panel, declared that the case required an opinion “for the ages” that would extend beyond the specific allegations alleged against the former President. Justice Brett Kavanaugh, Trump’s second appointee, criticized the history of independent counsel investigations for hampering the operations of several Presidents. Justice Samuel Alito worried that without immunity, former Presidents would become victims of partisan warfare waged by their successors.

The Court’s decision—released on July 1, the final session of the October 2023 term—rewarded Trump with an unprecedented victory. All six Republican-appointed Justices joined a majority opinion, authored by Roberts, that conferred “absolute immunity” on Presidents for exercising their “core powers” (those specifically enumerated in Article II of the Constitution, such as the pardon power), and “presumptive immunity” for all other “official acts.” Although the opinion permits prosecution for unofficial acts, Roberts offered no clear guidance on the dividing line between official and unofficial conduct. Acknowledging that the distinction between the two “can be difficult,” the closest he came to a definition is a sentence describing an unofficial act as one that is “manifestly or palpably beyond [the President’s] authority.” To complicate matters further, Roberts also held, incomprehensibly, that in determining whether an act is official or unofficial, courts “may not inquire into the President’s motives.”

All three Democratic-appointees dissented. In her dissent, Justice Sonia Sotomayor blasted the majority on both technical and substantive grounds. Attacking Roberts’s craftsmanship, she charged that “the majority’s dividing line between ‘official’ and ‘unofficial’ conduct narrows the conduct considered ‘unofficial’ almost to a nullity.” She also accused Roberts and the majority of inventing “an atextual, ahistorical, and unjustifiable” concept of immunity. “The Constitution’s text contains no provision for immunity from criminal prosecution for former Presidents,” she wrote, citing the famous Watergate tapes decision of United States v. Nixon. She concluded in a sad and angry lament, “The relationship between the President and the people he serves has shifted irrevocably. In every use of official power, the President is now a king above the law.”

Whether the Supreme Court’s decision will completely derail the Special Counsel’s election-subversion prosecution or just severely limit it remains to be seen. The case was remanded to Judge Chutkan in early August, who has been given the Herculean task of deciding whether, and to what extent, the case can move forward. In the meantime, she has delayed the trial until after the election.

Although history, as Mark Twain is credited with saying, never exactly repeats but rhymes, there are indeed unmistakable parallels between Dred Scott and Trump v. United States. Whereas the Dred Scott bench was dominated by slaveholders, the current Supreme Court is controlled by six appointees of Republican Presidents, all of whom are either current or former members of the ultra-right Federalist Society. Like the Taney Court, the Roberts Court is on a mission to use its extraordinary judicial powers to move the country in a radical rightward direction.

And the parallels do not end there. The majority opinions in each case were written by Chief Justices who had spent their early careers as zealous political advocates. Before ascending to the Supreme Court in 1836, Taney was elected to the General Assembly of Maryland, and later served as a loyal foot soldier to President Andrew Jackson, first as Secretary of War and then as Attorney General. Taney backed Jackson in his battle to destroy the Second National Bank. And as Attorney General, he penned an advisory opinion that prefigured his Dred Scott ruling, arguing that the Constitution and the Bill of Rights were inapplicable to Black people, even those living in free states.

Similarly, as a young lawyer, Roberts established himself as a dependable rightwing operative, clerking for the late Supreme Court Chief Justice William Rehnquist, and continuing in his work for the Reagan and senior Bush Administrations, where he honed his skills as an ardent opponent of the Voting Rights Act. Later, as an attorney in private practice, he played an important role as a consultant, lawsuit editor, and prep coach for the GOP’s legal arguments in the run-up to Bush v. Gore, the case that decided the 2000 presidential election.

Just as Taney destroyed his reputation as a strict constructionist with Dred Scott, Roberts has forever altered his image as an institutionalist committed to promoting judicial minimalism and preserving the Court’s integrity. In fact, Roberts’s tenure as Chief Justice has been marked by an extraordinary degree of judicial activism. Most notably, he invented the theory of “equal state sovereignty” to gut the Voting Rights Act with his majority opinion in Shelby County v. Holder (2013). He has also used the once-obscure “major questions” doctrine—which holds that regulatory actions that affect issues of “great social importance” are invalid unless they are precisely authorized by Congress—to strike down environmental programs and dismantle what conservatives call the “administrative state” (See sidebar: “Deconstructing the Administrative State”).

But according to historian Sean Wilentz, “Until Trump v. United States, no one decision by the Roberts Court carried significance comparable in magnitude to that of Dred Scott . . . Trump v. United States is distinct as a deliberate attack on the core institutions and principles of the republic, preparing the way for a MAGA authoritarian regime much as Dred Scott tried to do for the slavocracy.”

Wilentz also argues that the Roberts Court deployed fake history and phony originalism to come to Trump’s rescue in Trump v. Anderson. Decided on an expedited basis in March, Anderson, Wilentz writes, “brazenly gutted Section 3 of the Fourteenth Amendment” to permit Trump to remain on the presidential ballot in Colorado by “inventing the idea that the power to disqualify insurrectionists from office lay entirely with Congress” rather than also residing with the states, as the framers of the Amendment intended.

Wilentz further contends the Court abandoned “textualism”—the idea popular especially on the right that statutes must be read strictly according to the plain meaning of their terms—with Roberts’s majority opinion in Fischer v. United States. The Court in Fischer held that the federal statute criminalizing obstruction of Congress applies only to the destruction of documents and not to any violent acts perpetrated by the January 6 insurrectionists. Some 330 alleged insurrectionists who stormed the Capitol have been charged under the same statute, and could have their sentences reversed by this decision.

In yet another echo of Dred Scott, the Roberts Court’s decisive lurch to the right has undermined the institution’s public standing and perceived legitimacy. Recent polling reveals that only 36.5 percent of the public approve of the Court while 54.7 percent disapprove. Seven in ten Americans think the Justices are motivated more by ideology than a commitment to impartiality.

At the same time, the Roberts Court has been besieged by an embarrassing ethics crisis fueled primarily by Justices Clarence Thomas and Samuel Alito. Both men have been accused of failing to report luxurious vacations paid for by rightwing billionaires on their federally mandated financial disclosure forms. Both men have refused to recuse themselves from cases involving the January 6 insurrection despite their spouses’ links to the insurrectionist and MAGA movements.

Alito brought additional disgrace to the Court when he was secretly recorded by a liberal filmmaker in June at a meeting of the Supreme Court Historical Society, weighing in on the nation’s ongoing culture wars, and remarking: “One side or the other is going to win. I don’t know. I mean, there can be a way of working, a way of living together peacefully, but it’s difficult, you know, because there are differences on fundamental things that really can’t be compromised.”

In response to mounting public concern, the Court adopted an ethics code for the first time in its history last November. The code, however, has been criticized as “toothless,” as it lacks any enforcement mechanism.

All this has given new purpose and energy to the call for wide-ranging Court reform. In a June op-ed for The Washington Post, President Joe Biden joined the chorus, calling for legislation to impose term limits on Supreme Court Justices, a binding code of ethics and a Constitutional amendment to override Trump v. United States, re-establishing the principle that no one—including the President—is above the law. All three proposals . Biden stopped short, however, of advocating for Court expansion, which see as the only sure way to wrest control of the Court from the radical right (see sidebar: “Fixing the Supreme Court”).

Sadly, as justice correspondent for The Nation Elie Mystal noted in a July article, “There’s no legislative fix for the problems the Court has created . . . . The conservative Justices fear nothing: not the people, not the Congress, and certainly not the Democrats. They are drunk on their own power because nobody will cut off their supply.”

Like Wilentz, Mystal asserts that the Court’s just-completed term “will have a bigger impact on the rule of law and our political future than anything the Court has done since 1857’s Dred Scott decision.” Long an advocate for getting tough on Roberts and his GOP confederates, Mystal sees expansion as the best, and perhaps the only, peaceful alternative to the other option—open defiance of the Court’s rulings, likely leading, in his estimation, to a new civil war—exactly where Dred Scott took us all those years ago.

As nearly everyone living above ground now knows, the U.S. Supreme Court has granted Donald Trump and future Presidents broad immunity for official acts they commit while in office. The Court’s 6-3 majority opinion in United States v. Trump, written by Chief Justice John Roberts, confers “absolute immunity” on Presidents for exercising their “core Constitutional powers,” such as the authority to confer pardons, and “presumptive immunity” for all other acts within the “outer perimeter” of their official duties.

This article originally appeared on The Progressive.

The ruling will effectively delay Trump’s trial on the indictment brought against him by Justice Department Special Counsel Jack Smith until after the November election. In the longer term, the ruling clears the way for the establishment of an imperial presidency that, despite Roberts’ protestations to the contrary, operates above the law. If American democracy somehow survives, the opinion will go down as one of the most regressive in the Supreme Court’s history, taking its place alongside Dredd Scott, Plessy v. Ferguson, and Bush v. Gore.

But as reckless as the ruling is on its face, it is even more dangerous when its depths are plumbed. Here are five truly awful things you may have overlooked about the case on an initial reading:

1. The opinion doesn’t change the definition of federal crimes, but it gives Presidents a license to commit crimes.

The opinion does not change the definition of any federal offense. Nor does the opinion hold, as Richard Nixon remarked in his infamous 1977 interview with British journalist David Frost, that “when the President does it, that means that it’s not illegal.”

“Crimes are still crimes . . . [a]nd criminals are still criminals,” as Quinta Jurecic and Benjamin Wittes noted in a recent Lawfare article. If Trump is reelected and orders Seal Team Six to assassinate a political rival, for example, he would still be breaking the law. He just could not be prosecuted. The immunity granted by the Supreme Court would provide Trump with legal protection from criminal liability and punishment, but it would not otherwise sanitize his conduct.

2. The pardon power opens the door to criminal conspiracies.

While the majority opinion immunizes Presidents for their official acts, it does not directly protect subordinates who carry out their orders. Nonetheless, Trump’s potential henchmen would not be left out in the cold. The opinion recognizes the pardon power as a core constitutional function that is beyond the scope of judicial review. As a result, future presidents will be able to pardon their accomplices, sparing them from any criminal punishments.

Long before John Roberts penned his majority opinion, Trump was aware of the broad reach of the pardon power. In 2019, he reportedly told Customs and Border Patrol Commissioner Kevin McAleenan that he would pardon him if he were sent to jail for illegally blocking asylum seekers from entering the country. At the time, it was unclear if Trump was joking. Now, courtesy of Roberts and the Supreme Court’s ultra-right majority, the only joke is on the American people, who expect their chief executive to “take care” that the laws of the United States are faithfully executed, as the Constitution commands.

3. The opinion guts the Constitution’s impeachment judgment clause.

Roberts’ majority opinion rejected Trump’s outlandish claim that the indictment brought against him must be dismissed because the Constitution’s “Impeachment Judgment Clause” requires that Presidents be convicted of an impeachable offense in a Senate trial as a precondition to being prosecuted criminally in federal court.

What the opinion doesn’t say, however, is that by granting Presidents absolute immunity for exercising their core constitutional powers, Presidents will be forever shielded from criminal prosecution for official acts, whether for treason, bribery, or “other high crimes and misdemeanors.”

As Justice Sonia Sotomayor noted in a blistering dissent:

“The majority ignores . . . that the Impeachment Judgment Clause cuts against its own position. That Clause presumes the availability of criminal process as a backstop by establishing that an official impeached and convicted by the Senate ‘shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law’ . . . . That Clause clearly contemplates that a former President may be subject to criminal prosecution for the same conduct that resulted (or could have resulted) in an impeachment judgment—including conduct such as ‘Bribery.’”

4. As always, Clarence Thomas pushes the envelope.

Not content with joining Roberts’ majority opinion, Justice Clarence Thomas added a concurrence in which he called on his bench-mates to declare the Department of Justice’s special counsel regulations unconstitutional.

The regulations were put into effect by the DOJ in 1999 to fill a void left by Congress’s decision to allow a federal statute for appointing “independent counsels” to expire. The regulations have been upheld by two federal appellate courts—the D.C. Circuit in 2019 with regard to the appointment of Robert Mueller, and the Third Circuit with regard to the appointment of Robert Hur to investigate Hunter Biden. The Supreme Court, however, has yet to review the regulations.

Thomas’s concurrence is seen by some commentators as an open invitation to Federal District Court Judge Aileen Cannon, who is overseeing the Mar-a-Lago documents case against Trump, to overturn the regulations and set up a test case to come before the Supreme Court. Cannon is currently entertaining a motion from Trump’s legal team to do just that. In the meantime, the case remains stalled with no date set for trial.

5. The opinion exposes originalism as a result-oriented sham.

The reactionary supermajority that controls the Supreme Court has embraced originalism—the view that the Constitution should be understood today as it was understood during the founding era—as an article of faith and practice. Proponents of originalism assert that the doctrine limits the subjectivity of judges and acts as a restraint on judicial activism.

Trump v. United States proves once and for all that originalism is a sham. Nowhere does the text of the Constitution provide for Presidential immunity from criminal prosecution. Nor does a faithful reading of the seminal treatises of the founding era lead to such an outrageous conclusion.

In the Federalist Papers, Alexander Hamilton wrote that Presidents in the newly minted republic would not have unlimited power but could, if need be, be prosecuted in the ordinary course of law. The overriding purpose of the revolution was to free a fledgling democracy from the clutches of absolute monarchy and to enshrine the principle that no one is above the law. To their everlasting shame, John Roberts and his collaborators would have us forget this purpose entirely.

In November 2018, a public spat broke out between former President Donald Trump and Supreme Court Chief Justice John Roberts. It began when District Court Judge Jon Tigar of San Francisco overturned the Trump administration’s new restrictions on political asylum, leading the president to dismiss Tigar as an “Obama judge.” In response, Roberts issued a statement to the Associated Press, declaring, “We do not have Obama judges or Trump judges, Bush judges or Clinton judges. What we have is an extraordinary group of dedicated judges doing their level best to do equal right to those appearing before them. The independent judiciary is something we should all be thankful for.”

This article originally appeared on TruthDig.

Determined to have the last word, Trump tweeted: “Sorry Chief Justice John Roberts, but you do indeed have ‘Obama judges,’ and they have a much different point of view than the people who are charged with the safety of our country.”

The exchange with Trump bolstered Roberts’ image as an institutionalist committed to the fair and impartial administration of justice. But that image was and always has been a chimera.

Roberts’ 6-3 majority opinion in Trump v. United States, which accords Trump broad immunity from criminal prosecution for his “official” acts as president, proves beyond a reasonable doubt that we do, in fact, have Trump judges. And Roberts is the quintessential example. He is the leader of a reactionary judicial junta hellbent on rolling back the Voting Rights Act, gutting reproductive freedom, dismantling the New Deal, and establishing an imperial presidency that is beyond legal accountability.

The immediate effect of Roberts’ ruling is that Special Counsel Jack Smith’s election-subversion indictment of Trump will be stripped of many of its most important allegations, and any trial on the indictment will be delayed until well after the November election. If Trump wins, as he likely would if the election were held today, he would be able to order his new attorney general to dismiss the case, and do the same with the Mar-a-Lago documents prosecution.

Longer term, as Justice Sonia Sotomayor argued in a blistering dissent, Roberts’ opinion will have more dire consequences, as it “invents an atextual, ahistorical, and unjustifiable immunity that puts the President above the law.” The opinion is also, according to Boston University School of Law professor Jed Shugerman, a “constitutional embarrassment … incoherent … [and] hard to decipher.”

But this is the Supreme Court, and decipher it we must.

Distilled to its essence, Roberts and his like-minded benchmates held that the separation of powers mandates immunity. Without presidential immunity, Roberts proclaimed, the executive branch would be unable to take the “bold and unhesitating action” the country demands from its commander-in-chief for fear that his successor would target him for prosecution, turning the executive branch into one that “cannibalizes itself” with every change of administration. This is a novel interpretation of the Constitution, which does not contain text providing for presidential immunity from criminal prosecution. It also deviates dramatically from the founding fathers’ vision of a constitutional republic. In Federalist 69 and 77, two of the most seminal of the founding-era texts, Alexander Hamilton wrote that the presidents of the then-new United States would not have unlimited power but could, if needed, be prosecuted in the ordinary course of law. The entire point of the revolution was to rid the fledgling nation of an absolute monarch and enshrine the principle that no one is above the law.

Contrary to this sacred tradition, Roberts’ ruling endows Trump and future presidents with a monarchical kind of immunity, which he divides into three categories:

1. Absolute immunity for exercising the “core powers” of the presidency that are enumerated in Article II of the Constitution. These involve such matters as, in Roberts’ words, “commanding the Armed Forces of the United States; granting reprieves and pardons for offenses against the United States; and appointing public ministers and consuls, the Justices of this Court, and Officers of the United States.” Henceforth, actions taken pursuant to a core power can never be prosecuted.
2. Presumptive immunity for “official acts” other than those considered core powers that are undertaken within the scope of the president’s official responsibilities and the “outer perimeter” of those responsibilities. The presumption can be rebutted, but only if the government can demonstrate that a given criminal prosecution “does not pose [any] dangers of intrusion on the authority and functions of the Executive Branch.”
3. “Unofficial acts” for which there is no immunity.

This distinction between official and unofficial acts seems to be designed to rescue Trump from the clutches of the special counsel. Prior to the Roberts decision, the Supreme Court had never been called upon to review a criminal prosecution of a former president. Richard Nixon came close, but he had the good sense and just enough residual patriotism to resign and accept a pardon from Gerald Ford to avoid an indictment.

Roberts based his ruling in large part on a 1982 decision involving a wrongful termination lawsuit against Richard Nixon brought by a federal contractor. Nixon v. Fitzgerald held that presidents are entitled to “absolute immunity” in civil cases seeking damages arising from their official acts and “the outer perimeter” of their official duties. But Nixon v. Fitzgerald was explicitly limited to civil litigation, and the concurring and dissenting opinions in that case emphasized that the court’s decision had no application to criminal law. Now, courtesy of Roberts and his collaborators, Nixon v. Fitzgerald is the law of the land in both civil and criminal litigation.

Apart from Roberts’ lack of fidelity to constitutional text, history and precedent, his opinion is conceptually sloppy, poorly organized and incomplete. For example, Roberts concluded that Trump’s discussions with his then-acting attorney general and members of the Department of Justice about overturning the 2020 election were official acts entitled to immunity, but he declined to decide whether Trump’s discussions with Vice President Mike Pence are similarly entitled to protection or unofficial conduct undertaken as a candidate for office. That task — and the job of evaluating every other allegation set forth in Smith’s 45-page indictment — will be assigned to District Court Judge Tanya Chutkan when the case is sent back to her.

Even with the clearest guidance from the Supreme Court, the assignment of separating the official acts contained in Smith’s indictment from the unofficial ones would be time-consuming and daunting. But nowhere does Roberts offer a working definition of an unofficial act. Is an unofficial act one related to a political campaign, or one that is personal or private in nature, as Justice Amy Coney Barrett suggested in her concurring opinion? Although Roberts acknowledged that “distinguishing the President’s official actions from his unofficial ones can be difficult,” the closest he came to a definition is a line describing an unofficial act as one that is “manifestly or palpably beyond [the president’s] authority.”

Assuming that Chutkan can cut through the dense legalese of the majority opinion, she also will have to contend with the section of the ruling where Roberts holds that, “in dividing official from unofficial conduct, courts may not inquire into the President’s motives.” Because motive is often the key to proving criminal intent and intent is an element of the crimes alleged against Trump, it’s hard to see just how much of Smith’s case could survive even if Trump loses in November.

All that has Sotomayor and the dissenting justices outraged. “In fact,” Sotomayor argued in her dissent, “the majority’s dividing line between ‘official’ and ‘unofficial’ conduct narrows the conduct considered ‘unofficial’ almost to a nullity. It says that whenever the President acts in a way that is ‘not manifestly or palpably beyond [his] authority,’ he is taking official action.”

Forecasting nothing less than the demise of American democracy, Sotomayor continued:

The President of the United States is the most powerful person in the country, and possibly the world. When he uses his official powers in any way, under the majority’s reasoning, he now will be insulated from criminal prosecution. Orders the Navy’s Seal Team 6 to assassinate a political rival? Immune. Organizes a military coup to hold onto power? Immune. Takes a bribe in exchange for a pardon? Immune. Immune, immune, immune.

As the chief justice, Roberts could have assigned any other concurring member of the court to draft the majority opinion. That Roberts chose to write the opinion himself rather than farm it out to Clarence Thomas or Samuel Alito — both of whom should have recused themselves due to the conduct of their wives as outspoken supporters of the MAGA movement — or to one of the three younger justices appointed by Trump, is a testament to Roberts’ ego and a final and full revelation of his ideological extremism.

Roberts has spent his legal career as a right-wing political operative, dating back to his stint as a clerk for the late Supreme Court Chief Justice William Rehnquist, continuing in his work for the Reagan and Bush administrations, and into his role as a behind-the-scenes GOP “consultant, lawsuit editor, and prep coach for arguments before the Supreme Court” in the run-up to Bush v. Gore, the case that decided the 2000 presidential election.

His 2013 majority opinion in Shelby County v. Holder, which eviscerated the Voting Rights Act, ranks among the worst decisions in the Supreme Court’s history. His opinion in Trump v. United States deserves the same infamy.

Editor's note: This article originally appeared on The Progressive.

Is Donald Trump immune from criminal prosecution? Any day now, the U.S. Supreme Court is expected to decide that question in the election-subversion case brought by Justice Department Special Counsel Jack Smith.

The Court’s decision has the potential to forever alter the power of the presidency. But no matter how the court rules, the sad reality is that Trump has already won.

By delaying its opinion until the waning days of its current term, the Court will prevent the case from going to trial before the November presidential election. Should Trump win, he will be able to order his new Attorney General to dismiss the case altogether. That’s something you can count on as surely as tomorrow’s sunrise.

As many commentators have argued, Trump’s principal legal strategy in the subversion case, as well as in the Mar-a-Lago documents case and the state prosecutions brought in Georgia and New York, has never been about the merits of the legal issues involved. The game plan has always been about delay. And with the sole exception of the New York hush-money prosecution brought by Manhattan District Attorney Alvin Bragg, the strategy has worked to perfection.

In Georgia, Fulton County District Attorney Fani Willis’s case against Trump has been indefinitely postponedwhile a state appellate court considers whether to disqualify Willis and her office because of a secret romantic affair she had with her top deputy. In the Florida documents case, progress has been stymied by an inexperienced and arguably incompetent judge who appears to be biased in favor of the former President.

But of all the delays, the one in the nation’s highest court is the most unforgivable. On December 1, 2023, federal District Court Judge Tanya Chutkan, who has been assigned to preside over the subversion case in the event it ever goes to trial, rejected Trump’s immunity claim in a blistering forty-eight page opinion, writing:

“Whatever immunities a sitting President may enjoy, the United States has only one Chief Executive at a time, and that position does not confer a lifelong ‘get-out-of-jail-free’ pass . . . . [The] defendant’s four-year service as Commander-in-Chief did not bestow on him the divine right of kings to evade the criminal accountability that governs his fellow citizens.”

Believing that the Supreme Court would eventually take up the immunity question, Smith responded with alacrity. On December 12, he asked the Court to review the immunity issue on an expedited basis and bypass the Court of Appeals in the District of Columbia, which would normally have first crack at reviewing Chutkan’s opinion. His request was quickly denied, causing the first significant delay in the litigation.

The case proceeded to the Court of Appeals, which heard oral arguments on January 9. On February 6, the three-judge panel assigned to the appeal, which included a very conservative Republican jurist first appointed to the bench by Ronald Reagan, voted unanimously to affirm Chutkan’s ruling, holding:

“For the purpose of this criminal case, former President Trump has become citizen Trump, with all of the defenses of any other criminal defendant. But any executive immunity that may have protected him while he served as President no longer protects him against this prosecution.”

The Supreme Court wasted little time in accepting Trump’s petition to review the decision of the Court of Appeals, but in a foreshadowing of further delays to come, it scheduled oral arguments for April 25, the last date for arguments in its 2023-2024 term.

When the arguments finally took place, the Court appeared poised to reject the claim of absolute immunity advanced by Trump’s lawyers. The Court’s six Republican Justices, however, seemed ready to provide Trump with a limited but still significant degree of protection for any “official acts” he may have undertaken as President to contest the results of the 2020 election as opposed to those he undertook in his personal capacity as a political candidate.

The Supreme Court addressed the distinction between a President’s official and personal acts in Nixon v. Fitzgerald, a 1982 decision involving a wrongful termination lawsuit brought by a federal contractor against Richard Nixon. Fitzgerald held that Presidents are entitled to “absolute immunity” in civil cases seeking damages arising from their official acts and acts “within the outer perimeter” of their official duties. Trump’s lawyers urged the court to import the Fitzgerald standard to criminal law.

Whether the court’s rightwing majority ultimately agrees to create a Fitzgerald-type test or some other Trump-oriented standard for the subversion case remains to be seen, but the Court’s foot-dragging is inexcusable.

In a recent article in The American Prospect, Northeastern University law professor Michael Meltzer explained that the court normally waits to issue decisions until each Justice has an opportunity to write a concurring or dissenting opinion of their own. But as Meltzer also explained, the Court can act with urgency when it wants to in cases of extraordinary importance.

Meltzer cited three examples of the Court moving swiftly in pivotal appeals. The first he discussed occurred in August 1958, when the Court convened an emergency session in Cooper v. Aaron to review Arkansas Governor Orval Faubus’s refusal to desegregate public schools in defiance of the court’s landmark ruling in Brown v. Board of Education. Although the court officially opens each new term in October, it issued a unanimous decision in Cooper against the state and its governor on September 12.

In 1971, in New York Times Company v. United States (the Pentagon Papers case), the court took four days to issue a decision upholding the First Amendment rights of the Times and The Washington Post to publish a trove of documents on the Vietnam War leaked to the press by Daniel Ellsberg. And in 2000, the Court took just one day after hearing oral arguments to release its opinion in Bush v. Gore, which handed the presidency to George W. Bush.

Earlier this term, the court took less than four weeks from the date of oral arguments to overturn the Colorado Supreme Court’s decision disqualifying Trump from the 2024 ballot under the 14th Amendment’s insurrection clause.

It has now been more than eight weeks—and counting—since the Court heard oral arguments in Smith’s subversion case. There is only one plausible reason for a delay of such length, and it has nothing to do with the technical and procedural mechanics of Justices writing concurrences and dissents. The reason is political.

As much as the Court’s conservative Justices, who now comprise a six-member majority, may protest that they are fair and impartial arbiters of the law, the majority has swung sharply to the right. Three members of the majority—Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett—were nominated by Trump himself. At least two others—Clarence Thomas and Samuel Alito—are arguably corrupt, having received lavish benefits in the form of free luxury vacations and other benefits from Republican mega donors. If the majority can’t deliver an opinion that explicitly places Trump above the law, it will do the next best thing for the former President—postpone his day of reckoning until the case against him dies from lack of forward momentum.

Barring a last-minute judicial reprieve or an act of God, Donald Trump will become the first former or sitting U.S. president to stand trial on criminal charges when jury selection begins Monday in his “hush-money” case in New York City. Not even Richard Nixon, who was saved from an indictment for his role in the Watergate scandal by a presidential pardon, achieved such ignominy. Whatever its outcome, the trial will make history.

This article originally appeared on TruthDig.

Trump was indicted in New York on March 30, 2023 on 34 felony counts of falsifying business records to cover up a $130,000 payment to porn star Stormy Daniels to prevent her from going public during the 2016 presidential campaign about their alleged sexual encounter a decade earlier. In a “Statement of Facts” filed along with the indictment and in a press release issued the day of Trump’s April 4 arraignment, Manhattan District Attorney Alvin Bragg explained that the payment to Daniels was part of a larger “catch and kill” scheme Trump initiated in August 2015 “to identify, purchase, and bury negative information about him and boost his electoral prospects.”

In addition to the Daniels disbursement, the scheme involved a $150,000 payment to former Playboy magazine “Playmate of the Year” Karen McDougal to cover up an alleged extramarital affair, and a $30,000 payment to Dino Sajudin, a former doorman at the Trump Tower in Manhattan, who allegedly was trying to sell a story about a child Trump had fathered out of wedlock.

What makes Trump’s scheme unlawful, according to Bragg, is that Cohen’s $130,000 payment to Daniels was actually a contribution to Trump’s election campaign.

The scheme was carried out by Trump’s former lawyer and “fixer” Michael Cohen, who made the payment to Daniels on Trump’s behalf and was later reimbursed by Trump. The payments to McDougal and Sajudin came from American Media, Inc., the former publisher of the National Enquirer tabloid, whose then-chairman and chief executive officer, David Pecker, is a long-time Trump associate.

Although evidence of the larger scheme will come before the jury to show Trump’s intent to use the payments to enhance his election prospects, the indictment only charges him with offenses related to Daniels.

There is nothing illegal per se about making hush-money payments. The wealthy often use them to secure nondisclosure agreements to keep embarrassing or confidential information private.

What makes Trump’s scheme unlawful, according to Bragg, is that Cohen’s $130,000 payment to Daniels was actually a contribution to Trump’s election campaign that was both undisclosed and exceeded the 2016 $2,700 limit on individual contributions set by the Federal Election Campaign Act. In addition, the reimbursement checks written to Cohen in 2017 were “illegally disguised [in the records of the Trump Organization] as…payment for legal services rendered pursuant to a non-existent retainer agreement” to hide their actual purpose. Eleven of the 34 counts lodged against Trump involve checks written to Cohen (nine signed by Trump himself); 12 concern false invoices Cohen submitted; and 12 involve false entries in records maintained by the Trump Organization.

Although New York prosecutors routinely litigate business-record frauds, such cases are usually handled as misdemeanors. Offenses become felonies when the intent to defraud includes an intent to commit or conceal another crime. The other crimes implicated in Trump’s scheme include federal election campaign finance violations, parallel state-election law crimes and tax fraud.

As in all criminal cases, Bragg’s legal team will have the burden of proving their case beyond a reasonable doubt. The team has named 11 potential witnesses, headed by Cohen, Daniels and Pecker. Also named are Trump administration operatives Hope Hicks and Madeleine Westerhout, and Trump Organization insiders Rhona Graff, Jeffrey McConney and Deborah Tarasoff, who presumably will be called to help establish Trump’s knowledge of the scheme and his criminal intent.

In addition to the witnesses, the prosecution will present a trove of documentary evidence, including the reimbursement checks written to Cohen, the phony business ledger entries and a taped telephone conversation between Cohen and Trump that Cohen secretly recorded in September 2016. The pair can be heard on the recording discussing how to hide the payments to McDougal.

None of this means that the case is a slam dunk. Cohen will be particularly easy prey on cross examination as a convicted felon. In 2018, he pleaded guilty in federal court to tax evasion, making false statements to banks and campaign finance violations for the Daniels and McDougal payments. He was subsequently sentenced to serve three years in prison.

Each of the 34 counts carries a potential four-year prison term, with a maximum cap of 20 years for convictions on five or more counts.

Trump was never charged with a federal crime, but was named in the pleadings filed against Cohen as “individual 1,” on whose behalf Cohen allegedly acted.

All of this has Trump alarmed that his strategy of delaying his day of reckoning in a criminal trial is coming to an end. The strategy has worked thus far in the two cases brought by Justice Department Special Counsel Jack Smith for election subversion and mishandling classified documents, and in the case brought by Fulton County, Georgia District Attorney Fani Willis for election interference.

But the strategy has run aground in Trump’s former hometown, where he rose to fame as a real estate mogul and a “reality TV” huckster. Last week, his attorneys lost four last-ditch motions to delay the trial.

From a political standpoint, the hush-money prosecution may not be as significant as Trump’s other criminal cases, but apart from its embarrassing and salacious details — all of which will be laid bare in open court — it is no laughing matter. Each of the 34 counts carries a potential four-year prison term, with a maximum cap of 20 years for convictions on five or more counts.

We can’t peek inside Trump’s fevered mind, but it’s safe to assume, as former New Jersey Gov. Chris Christie has said, Trump “goes to bed every night, thinking about the sound of that jail cell door closing behind” him.

Donald Trump’s greatest presidential achievement was remaking the U.S. Supreme Court. By appointing three young and doctrinaire judicial “originalists” to the bench—Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett—Trump ensured that the Court would be dominated by a six-three conservative supermajority for years to come.

The right’s capture of the high court is the result of a longstanding crusade that some commentators date to a confidential 1971 memo authored by the late Justice Lewis F. Powell Jr., entitled “Attack on American Free Enterprise System.” Drafted on behalf of the Chamber of Commerce while Powell was a well-connected partner in a blue-chip law firm in Richmond, Virginia, the memo urged corporations to “recruit” lawyers of “the greatest skill” to represent their interests before the Supreme Court, which had moved steadily leftward under the stewardship of Chief Justice Earl Warren.

The right’s capture of the high court is the result of a longstanding crusade.

The memo was breathtaking in its scope and ambition. In it, Powell argued that “Under our constitutional system . . . the judiciary may be the most important instrument for social, economic, and political change.” It was imperative, in Powell’s view, for the Supreme Court to change course. As writer Steven Higgs noted in a 2012 article published by CounterPunch, the memo was “A Call to Arms for Class War: From the Top Down.”

It was only a matter of time until the Heritage Foundation, founded in 1973, and The Federalist Society, formed in 1982, heeded the call and began to compile lists of acceptable conservative candidates for appointment to the Supreme Court. Both groups were especially active in proposing candidate rosters for Trump, a process that culminated in him choosing Gorsuch, Kavanaugh, and Barrett.

But if you think that Trump is finished remaking the Supreme Court, think again. Supreme Court justices are human, and while they serve for an average of twenty-six long years, they are mortal, just like the rest of us.

Of all the court’s current members, Clarence Thomas is the oldest and the most likely to step down. Nominated by George H.W. Bush in 1991, Thomas will turn seventy-six in June. And he may not be in tip-top medical condition, having been hospitalized for a week with an undisclosed infection in 2022. Thomas isn’t the type to retire early, but if Trump is reelected and is able to nominate his successor, he may just decide the time is right to ride off down Interstate 80 with his wife Ginni in the luxury RV he purchased with a since-forgiven loan from one of his many uber-wealthy benefactors.

If Thomas decides to leave, a worthy successor is waiting in the wings—Fifth Circuit Court of Appeals Judge James Ho, who may just be the most reactionary federal appellate judge in the country. In the words of Vox senior legal correspondent Ian Millhiser, “If you could breathe life into 4chan, the dark corner of the Internet where shitposters, edgelords, Groypers, and trolls of all kinds thrive, and then appoint this new lifeform to the federal bench, you would have created Judge James Ho.”

Just fifty-one years old, a youngster by Supreme Court standards, Ho was born in Taiwan and immigrated to the United States as a child. He grew up in San Marino, California, an upscale suburban community east of Los Angeles. He received his B.A. from Stanford and his law degree from the University of Chicago.

As an attorney, he logged short stints with the U.S. Department of Justice and served as chief counsel to the Senate Judiciary Committee before clerking for Thomas at the Supreme Court from 2005 to 2006. In 2008, Texas Governor Greg Abbott nominated him to replace Ted Cruz as that state’s Solicitor General. Ho held the position until 2010.

In 2017, Trump named Ho to the Fifth Circuit, widely regarded as the country’s most conservative appellate court. He was confirmed by the Senate and was sworn in by Thomas himself in a closed ceremony in 2018 at the Texas mansion of billionaire Republican donor Harlan Crow.

Since then, Ho has carved out a reputation as an unflagging extremist. In a lecture last year at a Heritage Foundation conference in Washington, D.C., he encouraged his judicial colleagues to avoid “fair-weather originalism,” and to steel themselves from the “harsh criticism” they could expect from “elites” displeased by their interpretation of the Constitution’s original meaning. “If you’re an originalist only when elites won’t be upset with you, if you’re an originalist only when it’s easy,” he said, “that’s not principled judging.”

In his first opinion on the bench, a 2018 dissent, he argued that all laws limiting donations to political candidates and campaigns violate the First Amendment. In 2019, he wrote a concurring opinion validating Mississippi’s restrictive abortion law in Dobbs v. Jackson Women’s Health Organization, which subsequently went to the Supreme Court and resulted in the reversal of Roe v. Wade.

A Second Amendment absolutist, he penned another concurrence last year, upholding the right of individuals subject to domestic-violence restraining orders to own guns. The case, United States v. Rahimi, was argued in November 2023 and is currently before the Supreme Court.

In 1993, Clarence Thomas told two of his law clerks that he planned to do his utmost to make the lives of liberals “miserable.”

Ho was also part of a three-judge Fifth Circuit panel last August that curtailed the use of the abortion pill mifepristone. The case, Danco Laboratories v. Alliance for Hippocratic Medicine, will be argued before the Supreme Court on March 24, and will have dramatic effects on the rights of women and pregnant people to reproductive freedom.

Outside of court, Ho has been an equally unflagging activist, writing law review articles and lecturing at law schools about the evils of “cancel culture.”

In 1993, Clarence Thomas told two of his law clerks that he planned to do his utmost to make the lives of liberals “miserable.” No doubt he has succeeded, perhaps beyond his wildest expectations. In any event, if Trump is reelected, Thomas will be able to rest assured that his legacy will live on with the appointment of James Ho, whom Trump named to his last Supreme Court shortlist in 2020, and, from all appearances, is auditioning to have his name called if the opportunity arises.

Did Donald Trump simply tell another whopper at a campaign rally in Cedar Rapids, Iowa on Dec. 2, when he accused Joe Biden of trying to destroy American democracy, or was something more calculating, deliberative and sinister behind the baseless claim?

The article originally appeared on TruthDig.

Trump is an impulsive individual who often “projects” his own shortcomings, failings and misdeeds onto others. But he is also a master propagandist. His decision to label Biden a destroyer of democracy is a classic illustration of what political scientists, human-rights activists and historians of fascism term “accusation in a mirror,” or “mirror-image” propaganda — a technique used by demagogues and dictators the world over to impute to their enemies and opponents exactly what they and their party are planning to do.

Mirror-image propaganda reached its fullest expression during Adolf Hitler’s rise to absolute power in Germany. In “Mein Kampf,” Hitler’s 1925 autobiographical antisemitic screed composed while he was in prison for the infamous “Beer Hall Putsch,” he blamed the Jews for every conceivable evil, describing them, rather than the Nazis, as an existential threat to humanity. “If, with the help of his Marxist creed,” he wrote:

the Jew is victorious over the other peoples of this world, his crown will be the funeral wreath of humanity and this planet will, as it did thousands of years ago, move through the ether devoid of men.”

Fighting against the Jew, he continued, was “fighting for the work of the Lord.”

As the Second World War erupted, the Third Reich’s Minister of Propaganda Joseph Goebbels increased the volume on mirror-image invective, accusing Jews of plotting to exterminate Germans. In a 1941 pamphlet, he asked, “Who should die, the Germans or the Jews? You know what your eternal enemy and opponent intends for you. There is only one instrument against his plans for annihilation…Victory.” (By “victory,” Goebbles was likely making an early allusion to the systematic elimination of Jews.)

Mirror-image propaganda was also utilized in the Rwandan and Bosnian genocides of the 1990s, and can be seen in the conflicts taking place in Ukraine, Gaza and Israel. As American University professor Susan Benesch, who directs the nonprofit Dangerous Speech Project, has written, the technique works in tandem with disinformation campaigns aimed at dehumanizing the enemy.

“Dehumanization…makes genocide seem acceptable. ‘Accusation in a mirror’ goes further by making it seem necessary,” she instructs.

Trump’s dehumanizing rhetoric has grown even more extreme over the past few months.

Trump has long expressed admiration for dictators and strongmen. His political speeches have been littered with dehumanizing diatribes and mirror-image tirades since the day he announced his candidacy in 2015. He kicked off that campaign by stigmatizing undocumented immigrants as rapists and drug smugglers, and later on the campaign trail called for a “total and complete shutdown” of Muslims entering the country. After the election, his first term in office featured an endless string of racist rants not only against immigrants for “invading” the country, but also against Black Lives Matter protesters, whom he labeled “terrorists” and “thugs.” His presidency during the early pandemic similarly was punctuated by descriptions of COVID-19 as “the China virus” and the “kung flu.”

Trump’s dehumanizing rhetoric has grown even more extreme over the past few months. As he seeks to retake the White House, he routinely calls his political opponents “vermin” and vilifies immigrants for “poisoning the blood of our country.”

Facing 91 criminal counts in four separate federal and state prosecutions, Trump returned to mirror-image propaganda at his Cedar Rapids rally, declaring that Biden and his allies “think they can do whatever they want, break any law, tell any lie, ruin any life, trash any norm and get away with anything they want. Anything they want.”

Should he be reelected — and the polls currently show him leading Biden in a head-to-head rematch — Trump promises to go well beyond his rhetoric to transform the presidency into a virtual dictatorship, rounding up undocumented immigrants into mass-detention centers, dismantling civil service protections for government workers, unleashing the Justice Department on his political opponents and invoking the Insurrection Act to quell domestic unrest.

Detailed plans for a second Trump term are set out in Project 2025, an initiative sponsored by the Heritage Foundation and other far-right groups to implement a maximalist version of presidential power. The specific goals of the project are discussed in great detail in the ninth edition of the Heritage Foundation’s “Mandate for Leadership.” First published in 1981, the mandate is designed to serve as a guide for conservative governance; it is updated periodically, usually at the outset of each presidential administration. The current version totals 920 pages.

Prominent Trump surrogates have echoed the Project’s goals. In an appearance on a right-wing podcast in September, Iowa lawyer Mike Davis, believed to be among Trump’s top candidates for attorney general, said he would work to demolish the “deep state,” indict Joe Biden and pardon the Jan. 6 insurrectionists. “We’re gonna deport a lot of people, 10 million people and growing — anchor babies, their parents, their grandparents,” Davis vowed. “We’re gonna put kids in cages. It’s gonna be glorious. We’re gonna detain a lot of people in the D.C. gulag and Gitmo.”

As the campaign heats up, it is important to remember that a second Trump term will have far fewer legal guardrails than the first.

Kash Patel, rumored to be a possible choice to head Trump’s CIA, made similarly disturbing threats in a recent appearance on Steve Bannon’s War Room podcast. “We’re gonna use the Constitution to prosecute those destroying the republic,” he said. “We will go out and find the conspirators, not just in government but in the media. Yes, we’re going to come after the people in the media who lied about American citizens, who helped Joe Biden rig presidential elections — we’re going to come after you. Whether it’s criminally or civilly, we’ll figure that out.”

No surrogate, however, promotes Trump’s dictatorial aspirations more explicitly than Stephen Miller, who served as a policy adviser to the former president in his first term and is considered likely to join a second Trump Cabinet. In a Dec. 2 post on the social media platform X, Miller went full fuhrer. “A president is the embodiment of the state and the voter,” he wrote in response to the criminal prosecutions against Trump. “So when he becomes liable for his exercise of speech as president it is, in fact, the whole American people who have been robbed of their sovereign authority — authority transferred yet again to the unelected, unreformed and unaccountable. Conservatives not speaking out against these travesties are clearly uninterested in conserving this Republic.”

No one in the Trump camp, including the candidate himself, has yet advocated for outright genocide, although the plan for immigrant detention camps smacks of old-school ethnic cleansing. The election season, however, is just getting started. As the campaign heats up, it is important to remember that a second Trump term will have far fewer legal guardrails than the first. And those guardrails barely held the last time.

fter years of public complaints, the United States Supreme Court finally promulgated a code of ethics on November 13. But sadly, the new code will do little to rescue the court from the crisis of legitimacy that has dogged it since it handed the presidency to George W. Bush in 2000 with its transparently partisan decision in Bush v. Gore. In fact, it may only deepen the crisis. In the words of Vox legal correspondent Ian Milheiser, the new code “is literally worse than nothing.”

This article originally appeared at The Progressive.

In addition to publishing the code itself, the court released a one-paragraph introduction explaining its reasons for adopting an ethics policy for the first time in its history. The introduction reads like a clumsily drafted political press release aimed at cover-your-ass damage control rather than a document designed to resolve real concerns about the lack of accountability for the third branch of government.

“The undersigned Justices are promulgating this Code of Conduct to set out succinctly and gather in one place the ethics rules and principles that guide the conduct of the Members of the Court,” the introduction begins. “The Court has long had the equivalent of common law ethics rules . . . . The absence of a Code, however, has led in recent years to the misunderstanding that the Justices of this Court, unlike all other jurists in this country, regard themselves as unrestricted by any ethics rules.”

It’s impossible to know with certainty whether such remarks are the product of the court’s ivory-tower isolation from the rest of society, or if they are a product of deliberate gaslighting. In any event, the Court’s critics have not been laboring under a misunderstanding about the absence of ethical constraints on the nine elite lawyers who preside over the nation’s most powerful judicial body and have the last word on issues affecting nearly every aspect of our lives.

There has been no misunderstanding on the part of the public about the corruption of Clarence Thomas. He has refused to recuse himself from cases involving his insurrectionist wife, Ginni, and failed to disclose years-worth of lavish gifts received from Republican donors like Texas real estate magnate Harlan Crow, as required by the Ethics in Government Act. Nor has there been any misunderstanding about Samuel Alito’s failure to disclose the exclusive fishing trip he took to Alaska in 2008, paid for by GOP billionaire Paul Singer. Both justices are self-described “strict constructionists” who would never excuse similar lapses and derelictions if committed by litigants in cases before them.

The new code is fourteen pages long, including a five-page “commentary” attached as an appendix. In terms of substance, it is no less self-serving than the introduction.

The code is divided into five parts, or “canons,” that declare the justices should uphold the integrity and independence of the judicial; avoid the appearance of impropriety; perform their duties impartially, make all required financial disclosures, and disqualify themselves from hearing cases involving conflicts of interest; limit their engagement in extrajudicial activities to those that are consistent with their judicial offices; and refrain from overtly partisan political activity.

In style and format, the code is modeled after the code of conduct that has been in place for lower-court federal judges since 1973. But there are major differences between these codes that render the SCOTUS version toothless.

One glaring disparity is that the new code imposes no mandatory obligations on the members of the high court. Compliance by the justices of the Supreme Court is entirely voluntary, and there is no enforcement mechanism in place. Each individual justice will get to decide how to comply with the code’s strictures, or whether to comply at all. The net result is that the code will leave the justices exactly where they have been—above the laws and the Constitution that they oversee.

The new code is especially weak on judicial disqualification. The lower-court code of ethics stipulates that “A judge shall [emphasis added] disqualify himself or herself in a proceeding in which the judge’s impartiality might reasonably be questioned.”

By contrast, the new Supreme Court code’s disqualification cannon opens with the preface: “A Justice is presumed impartial [emphasis added] and has an obligation to sit unless disqualified”—that does not appear in the lower-court code. The Supreme Court version goes on to provide that “A Justice should [emphasis added] disqualify himself or herself in a proceeding in which the Justice’s impartiality might reasonably be questioned.”

The differences are not a matter of semantics. The lower-court code uses mandatory language; the Supreme Court version does not.

The Supreme Court code also includes a giant loophole, which instructs that “the ‘rule of necessity’ may override the rule of disqualification.” The commentary following the code explains that because there are only nine justices, it is vitally important to ensure that the entire bench participates in the court’s deliberations. But here again, the court’s reasoning is suspect. While it is true that a full complement is desirable, the court operated with just eight members between the death of Antonin Scalia in February 2016 and the confirmation of Neil Gorsuch in April 2017. There is no reason for a strict rule of necessity.

Unlike Supreme Court justices, lower-court judges are also subject to a public-complaint process that can result in discipline by the Judicial Conference of the United States, the administrative arm of the federal courts. The Conference has the power to censure offending judges, request resignations and recommend impeachment proceedings.

Supreme Court justices are exempt from this process. Some eighty-three ethics complaints were filed against Brett Kavanaugh during his raucous 2018 Senate confirmation hearing, highlighted by the allegation that he had sexually assaulted Christine Blasey Ford. The complaints were summarily dismissed after Kavanaugh was confirmed to the high court.

The Supreme Court is also effectively insulated against recusal motions brought by litigants. When a recusal motion filed against a lower-court judge is denied, appeals can be taken to higher courts. Historically, justices of the Supreme Court have recused themselves on a case-by-case basis, but there is no appeal from their recusal decisions because the Supreme Court is a tribunal of last resort.

Despite the obstacles, however, there are ways to fix the Supreme Court’s ethics problems. One set of solutions is contained in the Supreme Court Ethics, Recusal and Transparency Act sponsored by Rhode Island Democratic Senator Sheldon Whitehouse and other Democrats. The act would establish a randomly selected panel of federal appellate judges to investigate complaints against Supreme Court justices. Another proposal, promoted by Glen Fine, a former Department of Justice Inspector General, would be to establish a permanent inspector general for the court.

Both proposals make sense. All that is lacking is the political will to implement them.

One of the few foreign correspondents to be granted personal access to Adolph Hitler and his inner circle in the dark winter of 1933 was Welsh journalist Garreth Jones. Assigned by his home paper, the Western Mail, to cover Hitler’s push to absolute power, Jones accompanied the newly appointed chancellor and his entourage to Frankfurt for a massive political rally that was held on March 2 of 1933.

This article originally appeared on Truthdig.

Jones’ eyewitness account of the event is bone-chilling because it looks so much like what we are seeing today at Trump rallies.

“For eight hours, the biggest hall in Germany has been packed with 25,000 people for whom Hitler is the savior of his nation,” Jones began his story. “They are waiting, tense with national fervor…I have never seen such a mass of people; such a display of flags up to the top of the high roof, such deafening roars. It is primitive, mass worship.”

Then Hitler took the stage to a “roar of applause and the thumping and the blare of a military band and the thud of marching feet.” Hitler, Jones observed, “is … a master in repeating [his] leitmotiv in many varied forms, and the leitmotiv is: ‘The republican regime in Germany has betrayed you. Our day of retribution has come.’”

As a form of political behavior, discourse and ideology, Trump and the MAGA movement are clearly fascist.

The rally closed with Hitler’s pledge to “complete the work which I began fourteen years ago as an unknown soldier, for which I have struggled as leader of the party and for which I stand today as Chancellor of Germany. We shall do our duty.”

“Again,” Jones wrote, “the hall resounds.”

Three weeks later, Hitler secured passage of the Enabling Act, bringing the Weimar Republic effectively to an end.

Flash forward some 90 years and you can hear echoes of Hitler’s Frankfurt address in the persistent messaging of Donald Trump. Speaking at the ultra-right Faith and Freedom Coalition’s 14^th annual “Road to the Majority” conference in Washington, D.C. on June 24, the former president proclaimed:

In 2016, I declared: I am your voice. Today, I add: I am your warrior. I am your justice. And for those who have been wronged and betrayed, I am your retribution.

Trump delivered a similar message earlier in June, telling an audience of enraptured supporters in Columbus, Georgia, that he was being persecuted by federal and state prosecutors. He insisted that the “deep state” was also out to get those who followed him. “In the end,” Trump complained, “they’re not coming after me. They’re coming after you — and I’m just standing in their way.” This was the usual stuff of Trumpian spectacle. In a rambling tirade delivered on Veterans Day in New Hampshire, Trump vowed to “root out…the radical left thugs that live like vermin within the confines of our country.”

Trump’s fixation on Hitlerian imagery, memes and tropes is not an accident. The orange-haired demagogue has had a longstanding fascination with Hitler. According to a 1990 Vanity Fair article, Trump’s first wife Ivana, who died last year, told her divorce attorney that the former president kept a compilation of Hitler’s speeches in a cabinet by his bed. Wall Street Journal reporter Michael Bender remarked on Trump’s interest in Hitler in his book on the 2020 presidential campaign, “Finally We Did Win This Election.” Bender writes that Trump told his then-chief of staff Gen. John Kelly during a 2018 trip to Europe that “Hitler did a lot of good things,” particularly for the German economy. (Trump vehemently denied Bender’s account.)

The cult-like bond between the movement leader and his most ardent followers, a bond characterized by pledges of mutual aid, threats of revenge and shared delusions of victimization, is one of the bedrock features of fascism. This was graphically illustrated by the ascent to power of the two pillars of 20 ^th-century fascism, Hitler and Bennito Mussolini, whose personal style Trump is often said to emulate.

“Mussolini put his hands on his hips, thrust his chest, jutted his lower jaw,” Jonathan Blitzer wrote in a 2016 New Yorker article that profiled the work of New York University history professor Ruth Ben-Ghiat, one of the fore most authorities on fascism. “It’s all about showing that he cannot be contained,” Ben-Ghiat told Blitzer. “It was the same with Mussolini.”

“I’ve been studying cult leaders for a hundred years’ worth of them,” said Ben-Ghiat in an appearance on Democracy Now last June. Trump “has all the signs. He is not a conventional politician of either the Democratic or Republican [Party]… He is a cult leader. And the GOP has long been…submissive to him. He put them under an authoritarian discipline, and then he made them complicit. And this is what corrupt, violent authoritarians do. They make you part of their crimes.”

As I have written before in this column, fascism is an emotionally loaded and often misapplied term. But if understood correctly, it can never be dismissed as a vestige of the past. As a form of political behavior, discourse and ideology, Trump and the MAGA movement are clearly fascist. There is no longer room for debate.

Fascism has deep roots in the United States, from the resurgence of the Ku Klux Klan in the 1920s, to the rise of the German-American Bund in the 1930s, to the ascendance of Depression-era demagogues, and, fast-forward almost a century, the election of Trump in 2016.

There’s a long-running class factor in the current of American fascism. University of London professor Sarah Churchwell’s June 2020 essay in the New York Review of Books exactly nails it when she quotes rabbi Stephen Wise: “The America of power and wealth is an America which needs fascism.”

Churchwell’s essay, fittingly titled, “American Fascism: It Has Happened Here,” offers a working definition of fascism. She notes that while fascist movements differ from nation to nation, they are united by “conspicuous features [that] are recognizably shared.” These include:

“[N]ostalgia for a purer, mythic, often rural past; cults of tradition and cultural regeneration; paramilitary groups; the delegitimizing of political opponents and demonization of critics; the universalizing of some groups as authentically national, while dehumanizing all other groups; hostility to intellectualism and attacks on a free press; anti-modernism; fetishized patriarchal masculinity; and a distressed sense of victimhood and collective grievance. Fascist mythologies often incorporate a notion of cleansing, an exclusionary defense against racial or cultural contamination, and related eugenicist preferences for certain ‘bloodlines’ over others.”

If he is reelected next year, Trump could make the January 6 coup attempt look mild. The Washington Post and Politico have reported that Trump and his allies on the extreme right hope to transform the federal government into a virtual presidential dictatorship. Trump and his allies, states Politico, are “collecting the ingredients and refining the recipe for an authoritarian regime.”

The fear is that Trump will invoke the Insurrection Act on his first day in office to deploy the military. This vision of horror includes Trump in the Oval Office using his immense power to quash civil unrest and dismantle civil service protections for government workers in order to secure their loyalty. And all this while weaponizing the Justice Department to do his bidding.

The New York Times warns that a second Trump term will be especially dire for undocumented immigrants, with mass arrests and the construction of detention camps on a scale not seen since the racist “Operation Wetback” of the Eisenhower era. The Times also reported that Trump plans to cancel the visas of foreign students who participated in anti-Israel and pro-Palestinian demonstrations.

Fascism thrives in moments of widespread social anxiety and moral panic, when large segments of the population are persuaded that liberal democracy no longer serves their interests. We are living in such a moment now. The urgency we face cannot be understated.

As the war between Hamas and Israel escalates and threatens to spread north to Lebanon, you may be wondering where international law stands amid the death and destruction. The short answer is it has been missing in action. As the latest round of bloodshed illustrates, in times of war, law is subordinate to brute force and vengeance.

This doesn’t mean that international law has become irrelevant. Far from it. In times of war, we need its counsel and wisdom more than ever.

As defined by Cornell University Law School’s Legal Information Institute, “international law consists of the rules and principles governing the relations and conduct of sovereign states with each other, as well as with international organizations and individuals. Issues that fall under international law include trade, human rights, diplomacy, environmental preservation, and war crimes.”

Judged by those rules and principles, both Israel and Hamas are guilty of horrific violations. Decades of Israeli occupation, de facto mass incarceration and apartheid, and scores of lethal military operations (including bombings of apartment buildings, refugee camps, and ambulances just this week) cannot be justified as acts of self-defense. But neither can wanton murders—including the intentional killings of civilians and reported instances of beheadings—and mass kidnappings be deemed legitimate acts of resistance by Hamas.

Under the leadership of Prime Minister Benjamin Netanyahu and the right-wing zealots in his cabinet, Israel has become a terror state. Hamas arguably is even worse. It has revealed itself as little more than an ISIS replicant, not only anti-Zionist, but viciously anti-Semitic to its core.

The problem lies not with the content of international law, but with its lack of enforcement.

The contemporary framework of international law took shape after the Second World War with the ratification of the Geneva Conventions of 1949 and the subsequent amendments, or “protocols,” to the conventions. The post-war period also saw the founding of the United Nations, the ratification of the U.N.’s Universal Declaration of Human Rights, and the formation of the International Court of Justice (ICJ) as a forum for resolving disputes among nations.

Also known as the “World Court,” the ICJ sits in the Peace Palace, a regal red-brick Neo-Renaissance mansion that opened its doors in 1913 in The Hague, Netherlands. The court is the principal judicial organ of the U.N., and is the successor of the Permanent Court of International Justice, which operated under the auspices of the League of Nations from 1920 to 1945. Like its predecessor, the ICJ hears disputes between nations. It does not hear cases involving individuals.

Since convening its first trial in 1947, the ICJ has heard some 190 cases. Many involved boundary, aviation, and fisheries disputes, but a few have addressed weighty charges of genocide and human rights abuses in the former Yugoslavia, Iran, and Ukraine.

Unfortunately, only seventy-four countries have accepted the ICJ’s compulsory jurisdiction and agree to abide by its decisions. They include most of the nations of western and northern Europe. Russia and the United States are not among them. The United States withdrew from compulsory jurisdiction in 1985 after it was sued in the ICJ by Nicaragua for fomenting civil war and mining Nicaragua’s harbors.

The ICJ has considered two cases involving Israel and Palestine: In 2004, it handed down an advisory opinion, finding that the separation wall Israel was constructing along the West Bank violated international law. Currently, the court is reviewing a request from the U.N. for an advisory opinion on the legal consequences of Israel’s policies and practices in the occupied Palestinian territories.

Israel rejected the findings of the first ICJ advisory opinion. It will no doubt reject any adverse findings in the second opinion, if and when it is issued. Both the United States and Israel voted in the U.N. General Assembly against sending the second case to the ICJ.

Israel’s occupation of Palestine is also being investigated by the International Criminal Court (ICC), which began operations in The Hague in 2002 as a forum for trying individuals accused of committing war crimes, genocide and other “crimes against humanity.”

The ICC was founded after a 1998 conference in Rome attended by 160 nations. The conference produced an agreement known as the Rome Statute, which took effect in July 2002, establishing the ICC as the first treaty-based international criminal court for the purpose of investigating and trying individuals—both governmental and non-state actors—accused of genocide, war crimes, crimes against humanity and crimes of aggression, as defined by the Geneva Conventions, the Rome Statute, and other sources of international law. The Rome Statute authorizes the court to impose heavy jail sentences, up to life imprisonment, on those convicted.

Although the ICC is affiliated with the United Nations, it is legally independent. An agreement reached in 2004 permits the U.N. Security Council to refer cases directly to the ICC. The court is also authorized to conduct investigations at the behest of member states, or at the request of a non-member state that willingly submits to the court’s jurisdiction.

Today, 123 nations are parties to the Rome Statute, acceding to the ICC’s jurisdiction. Membership in the court and cooperation with the enforcement of its judgments are voluntary. Like the ICJ, the ICC has no police or arrest powers of its own.

Neither the United States nor Israel have ratified the Rome Treaty. As a result, they are not members of the ICC. The United States signed the Rome Statute in 2000 but withdrew from it in 2002. Russia withdrew in 2016. Palestine, under the auspices of the Palestinian Authority, not Hamas, joined the ICC as a recognized member state in 2015.

In 2019, the ICC opened an investigation into the alleged war crimes committed in Gaza and the West Bank. Both Israel and the United States have condemned the investigation, and it remains stalled.

In the meantime, Hamas has become increasingly extreme, sparking credible charges that its ultimate aim is genocide directed at all Jews.

To punish Hamas, the Israeli government has now imposed a complete blockade on Gaza, leaving Palestinian civilians without access to food, water, fuel, electricity, or sanitation. It is also now calling on 1.1 million people to evacuate Northern Gaza, in what seems to be preparation for a ground invasion. Jewish Voice for Peace calls the war an “imminent genocide of Palestinians.” More than 1,800 have already died in Gaza in this humanitarian crisis.

With no end to the conflict in sight, it’s easy—and indeed natural—to align with one side or the other. But that is a prescription only for continued carnage.

In the long run, as unavailing as it may seem at the moment, we have no other choice but to renew our commitment to international law, and demand that both Hamas and the right-wing government of Israel be held fully responsible and accountable for their crimes against humanity.

If you think the Supreme Court’s assault on voting rights is over, think again. On Oct. 11, as it convenes its new term, the court will hear oral arguments in a “racial gerrymandering” case from South Carolina — Alexander v. South Carolina State Conference of the NAACP — that has the potential to inflict irreparable harm on minority voters.

Last term, the court surprised many observers when it struck down Alabama’s racially gerrymandered congressional voting map in a narrow 5-4 opinion written by Chief Justice John Roberts in Allen v. Milligan that concluded the map ran afoul of section 2 of the Voting Rights Act (VRA). Section 2 prohibits voting practices that discriminate on the basis of race, color or membership in a minority language group. Milligan preserved the validity of section 2, and paved the way, over protests from the Alabama legislature and state officials, for the creation of a new congressional district in which Black residents will have a voting majority.

Although Milligan has been justly praised by voting-rights advocates as a major and rare victory in a court dominated by hard-right Republican justices, it won’t have any direct bearing on the court’s ruling in Alexander. The cases are similar in that the Alabama and South Carolina maps were designed in 2021 after the 2020 census, and both diluted the power of Black voters. But the cases are also distinguishable in important legal respects, and those differences may lead to a dramatically different outcome in Alexander.

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In Milligan, the Supreme Court was tasked with reviewing a lower-court ruling that Alabama’s congressional map violated section 2 of VRA, and determining whether the court’s past precedents interpreting section 2 should be overruled. The court declined to overturn its past decisions.

Alexander, by contrast, is purely a constitutional case, which requires the Supreme Court to review a lower-court ruling that South Carolina’s map violates the 14^th Amendment’s Equal Protection Clause, as well as the 15^th Amendment’s prohibition against racial discrimination in voting. The Supreme Court has not been asked to determine if the South Carolina map also violates the VRA.

Invoking originalist reasoning, Roberts wrote that partisan gerrymandering has existed since the founding of the republic, and that the framers of the Constitution left the practice to the states to regulate.

The claims advanced by South Carolina’s legislature and several right-wing groups that have filed amicus curiae (“friend of the court”) briefs in the Supreme Court are insidious, and appear specifically targeted to appeal to the court’s ultra-conservative majority and its regressive “originalist” view of the Constitution.

To understand those claims requires a brief primer on gerrymandering.

In the most generic sense, gerrymandering refers to the practice of drawing election maps to create an edge for a dominant party, group or socio-economic class. The term is actually a portmanteau coined after the salamander-like voting districts created by Massachusetts Gov. Elbridge Gerry in 1812 to give an advantage to his Democratic-Republican Party. Today, it commonly refers to any abusive form of redistricting.

States with more than one Congressional seat are required to redesign their voting districts every 10 years in accordance with new census data. Because redistricting is so important to the functioning of democracy, it often sparks litigation.

In the 1962 landmark case of Baker v. Carr, the Supreme Court, under Chief Justice Earl Warren, reversed years of precedent, and outlawed population-based gerrymandering, establishing the doctrine of “one man, one vote.” Henceforth, voting districts have had to be roughly equal in terms of overall population.

By the mid-1980s, the Supreme Court also proscribed racial gerrymandering — designing Congressional and state electoral districts to dilute the voting power of minorities by either “cracking” minority voters across a state to diminish their relative strength, or by “packing” them into a few districts to drain their influence in other parts of a state.

In 2019, however, the Supreme Court handed down a 5-4 opinion written by Chief Justice Roberts that held issues of “partisan gerrymandering” — the practice of designing voting districts for purely political reasons — were beyond the jurisdiction of the federal courts to address or remedy. Invoking originalist reasoning, Roberts wrote that partisan gerrymandering has existed since the founding of the republic, and that the framers of the Constitution left the practice to the states to regulate.

This is the argument advanced by South Carolina and its allies in Alexander. Although the state concedes that it purposely moved some 30,000 Black voters out of its first congressional district, it argues it did so not because of their race, but because of their political affiliation as registered Democrats. In 2020, according to exit polls, 90% of Black South Carolina voters cast their ballots for Democrats. By moving Black voters out of the first district, the state hopes to retain the seat for Rep. Nancy Mace in 2024.

Any fair-minded court committed to equal justice would easily see through the state’s specious reasoning. But the Roberts court is anything but fair-minded when it comes to voting rights.

Should the court approve of South Carolina’s end-run on race, the reverberations will be felt nationwide.

Roberts, in particular, has never been an advocate for voting rights. As a young lawyer working in the Reagan administration, he authored several memos harshly criticizing the VRA.

In 2013, as chief justice, he composed the infamous majority opinion in Shelby County v. Alabama (2013), which gutted two other provisions of the VRA that required state and local jurisdictions, mostly in the South, with histories of egregious voter discrimination to obtain advance federal approval — known as “preclearance” — before making changes to their election procedures. Roberts declared in Shelby that racial discrimination in voting practices was essentially over, writing that “things have changed dramatically” since the 1965 passage of the VRA.

Nor should we be lulled into believing that Roberts’ majority opinion in Milligan signals a change of direction in his thinking about the Constitution. While he refrained from rejecting the court’s past precedent decisions on section 2 of the VRA in Milligan, he added a gratuitous observation to the end of the opinion that all but invited future constitutional attacks on voting rights. “The Court’s opinion today does not diminish or disregard the concern that [Section] 2 may impermissibly elevate race in the allocation of political power within the States,” he wrote. “Instead, the Court simply holds that a faithful application of precedent and a fair reading of the record do not bear those concerns out here.”

In his concurring opinion in Milligan, Justice Brett Kavanaugh, the other Republican-appointee who joined the majority along with the panel’s Democrats, issued a more direct warning to voting rights advocates, asserting that the federal protections against racial gerrymandering “cannot extend indefinitely into the future.”

The stage is thus set for exactly the kind of constitutional showdown that Alexander poses. Should the court approve of South Carolina’s end-run on race, the reverberations will be felt nationwide, especially in the South, where other major voting-rights cases remain undecided and are being fiercely litigated. Another critical inflection-point in the history of U.S. constitutional law looms ahead.

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