Amid all the excitement generated by the indictments against Donald Trump in Washington, D.C., and in Fulton County, Georgia, for election subversion, it’s easy to lose sight of the Mar-a-Lago documents case, which is set for trial next May. But of all Trump’s legal woes, that case is the only one that looks like a slam dunk.

Trump stands accused of committing forty felonies for absconding from the White House with a trove of classified and top-secret papers, stashing them at his Palm Beach golf resort, and refusing to return them to the federal government on demand. Two other defendants—Walt Nauta, Trump’s longtime valet; and Carlos de Oliveira, the resort’s property manager—are accused of committing some crimes jointly with Trump and others on their own.

Unfortunately, there is one big problem facing Special Counsel Jack Smith’s team in the Sunshine State: The trial will be presided over by District Court Judge Aileen Mercedes Cannon, who may just be in the metaphorical tank for the former President.

Cannon, who was born in Colombia and grew up in Miami, was nominated by Trump in May 2020 to serve on the United States District Court for the Southern District of Florida. She was thirty-nine-years-old, relatively young by federal judicial standards.

Cannon was confirmed by the Senate on November 12, 2020, nine days after Trump lost the presidential election, despite having only four minor jury trials on her resume as a practicing attorney. Her scant record as a published author at the time of her nomination included a series of human-interest pieces she wrote as an undergraduate for El Nuevo Herald, a Miami-based Spanish-language daily newspaper. Among the topics she covered were prenatal yoga, the health benefits of tomatoes, and Flamenco dance.

By all appearances, Cannon grew more serious in law school at the University of Michigan, joining the Federalist Society and establishing herself as a staunch conservative. She served as an assistant U.S. attorney in southern Florida from 2013 to 2020, and in that capacity, caught the eye of the Trump Administration as a worthy candidate to add to the growing cadre of right-wing judges the ex-President had appointed.

Once enrobed, Cannon was assigned to a courtroom in Fort Pierce, north of West Palm Beach. Under normal circumstances, she would have remained under the radar for years, handling a challenging but standard docket of civil and criminal litigation. The FBI’s search of Mar-a-Lago on August 8, 2022, changed that trajectory in a flash.

Cannon was assigned to hear a highly unusual civil lawsuit Trump’s lawyers filed on August 22, seeking an emergency protective order to block the government from indicting Trump until the propriety of the search could be reviewed by an independent arbiter known as a “special master.” Suddenly, she found herself in the national spotlight.

To the shock and dismay of many legal observers, Cannon ruled quickly in Trump’s favor, issuing an order on September 5, appointing a special master, and reasoning that Trump was entitled to be treated differently than other criminal suspects in order to avoid the “reputational harm” that could have resulted from a hasty indictment. “As a function of Plaintiff’s former position as President of the United States,” Cannon wrote, “the stigma associated with the subject seizure is in a league of its own.”

At the Special Counsel’s request, the 11th Circuit Court of Appeals quickly intervened and rebuked Cannon in a stinging reversal, holding:

"We cannot write a rule that allows any subject of a search warrant to block government investigations after the execution of the warrant."—11th Circuit Court of Appeals

“The law is clear. We cannot write a rule that allows any subject of a search warrant to block government investigations after the execution of the warrant. Nor can we write a rule that allows only former Presidents to do so. Either approach would be a radical reordering of our case law limiting the federal courts’ involvement in criminal investigations. And both would violate bedrock separation-of-powers limitations.”

Incredibly, now that Trump has actually been indicted, Cannon is once again presiding, apparently impervious to demands that she recuse herself due to the appearance of bias. According to the district-court clerk, she was randomly selected to act as the trial judge from a total pool of seven active judges.

Given the broad authority of federal trial judges and her obvious pro-Trump bias, Cannon will be uniquely positioned to help the ex-President as the case unfolds. She will rule on all pretrial motions, including any motions to suppress the documents on Fourth Amendment grounds, as well as any that seek to dismiss the indictment for selective prosecution or prosecutorial misconduct. She will also have the last word on the admissibility of evidence at trial.

Given the broad authority of federal trial judges and her obvious pro-Trump bias, Cannon will be uniquely positioned to help the ex-President as the case unfolds.

Cannon’s greatest impact, however, may be on jury selection. Under the federal rules of criminal procedure, the prosecution will only have six peremptory jury challenges, allowing it to automatically exclude potential jurors it believes will be unfair. After that, the prosecution will be limited to challenges for cause (such as implied or actual bias), which Cannon will have the sole power to grant or deny. It will only take one rogue juror who holds out for acquittal regardless of the evidence to spare Trump.

Even if Cannon were not biased herself, there is good reason to doubt her ability to supervise the high-profile selection of Trump’s jury. In a recent criminal case, according to a transcript obtained by Reuters, she arguably committed an egregious Sixth Amendment error when she excluded the family of a criminal defendant and the general public from her courtroom during jury selection, pointing to a lack of space. She also neglected to swear in the jury pool, and was forced to restart jury selection after realizing her mistake.

Cannon could also play a decisive role post-trial if Trump’s attorneys ask her to issue a directed verdict that would take the question of guilt out of the jury’s hands. Such motions are routinely made in criminal trials, but are rarely granted.

If all this seems like a prescription for disaster, take heart: Trump will soon be in the dock in the District of Columbia, Georgia, and New York State—all far beyond Judge Cannon’s reach.

The far right Heritage Foundation created a platform for Trump that plots an authoritarian take-over of the country.

Donald Trump nearly destroyed American democracy in his first term in office. If he is reelected, he plans to try to finish the job. This isn’t a matter of speculation; it’s a virtual certainty.

In campaign speeches, TV interviews, posts on Truth Social, and a head-spinning list of promises posted on his official campaign website, Trump has vowed to pressure Congress to pass legislation imposing the death penalty on drug smugglers and human traffickers; purge “Marxists” from the Department of Education; remove civil service protections for federal employees; and “obliterate the deep state [and] rout the fake news media.” He has also pledged to fire Special Counsel Jack Smith, whom he has labeled “a deranged lunatic, [a] psycho, and a “crackhead,” and appoint “a real special prosecutor” to target President Biden and his family, along with a litany of other real and imagined enemies.

It would be bad enough if such threats were simply the ravings of a wannabe dictator desperate to stay out of jail, but they are much more dangerous than that. Trump’s 2024 election bid and his vows of revenge and retribution are backed by a sophisticated and multi-faceted movement that seeks to expand presidential power to unprecedented heights should he or another like-minded GOP extremist win back the Oval Office.

The intellectual heart of the movement is the Heritage Foundation, the well-known and influential Washington-D.C.-based think tank, founded in 1973, that played an integral role in shaping the policies of President Ronald Reagan. From its early days as a pivotal player in the mainstream of the Republican Party, the Heritage Foundation went full MAGA during Trump’s first term. Last year, it launched a new initiative—dubbed the “2025 Presidential Transition Project,” or “Project 2025” for short—to ensure that the next GOP President’s authority will be unchecked.

The project’s webpage describes its vision in ambitious and unambiguous terms:

The actions of liberal politicians in Washington have created a desperate need and unique opportunity for conservatives to start undoing the damage the Left has wrought and build a better country for all Americans in 2025.

It is not enough for conservatives to win elections. If we are going to rescue the country from the grip of the radical Left, we need both a governing agenda and the right people in place, ready to carry this agenda out on day one of the next conservative administration.

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, and is updated periodically, usually at the outset of each presidential administration. The current version totals some 920 pages.

If you lack the stomach to plow through the entire tome, you can turn to a two-page preface written by Paul Dans, Project 2025’s director who served as the Trump Administration’s Chief of Staff for the Office of Personnel Management. Dans outlines the project’s four basic objectives, which he calls its “four pillars.” These are: the development of a broad “policy agenda” for the next rightwing President to implement; the construction of a “personnel database” to assist the President in making staffing decisions; the creation of a “Presidential Academy” to train the next set of high-level government appointees; and a “Playbook” for the first 180 days of the next administration.

One of the project’s more disturbing aims is to bring all federal agencies under direct presidential control, ending the operational independence not only of the Department of Justice and the FBI, but also the Federal Reserve, which oversees the banking industry and regulates interest rates; the Federal Communications Commission (FCC), which oversees television, radio, and the Internet; and the Federal Trade Commission (FTC), which enforces antitrust and consumer protection laws.

“What we’re trying to do is identify the pockets of independence and seize them,” Russell Vought told The New York Times in an interview for a lengthy article published earlier this month on Trump’s plans for a second term. Vought ran the Office of Management and Budget for the Trump White House, and currently serves as the president of the Center for Renewing America, one of sixty-five ultra-right organizations that have come together to form Project 2025’s advisory board. (Others include the American Family Project, Hillsdale College, Liberty University, Susan B. Anthony Pro-life America, America First Legal, the Claremont Institute, Moms for Liberty, Freedom Works, the James Madison Institute, and ALEC.)

“The President’s plan should be to fundamentally reorient the federal government in a way that hasn’t been done since F.D.R.’s New Deal,” John McEntee, another former Trump White House staffer, also told the Times. “Our current executive branch,” McEntee continued, “was conceived of by liberals for the purpose of promulgating liberal policies. There is no way to make the existing structure function in a conservative manner. It’s not enough to get the personnel right. What’s necessary is a complete system overhaul.” McEntee joined Project 2025 in May as a senior advisor, working on the initiative’s “personnel” pillar.

Dismantling the New Deal-era regulatory framework of the administrative state, as McEntee advocates, has long been a goal of the radical right. The right has also long advocated a bloated view of presidential power known as the “unitary executive theory.” The doctrine was popularized in the early 1980s by Ed Meese, who served as counselor to the President in Reagan’s first term, and as attorney general in his second term, before assuming a full-time post with the Heritage Foundation in 1988. Bill Barr, Trump’s last Senate-confirmed Attorney General, is another prominent proponent of the theory.

In an oft-quoted 2006 essay, professors Karl Manheim and Allan Ides of Loyola Law School in Los Angeles, California, described the theory as inimical to the core tenets of democracy, writing:

[T]he 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… Its proponents seek the cover of the Constitution, but in truth their theory wreaks havoc on the most fundamental principles of our constitutional traditions.

In a recent column published online by MSNBC, New York University Professor Ruth Ben-Ghiat, an internationally renowned expert on fascism, compared the programmatic goals of the Trump campaign and Project 2025 to the crippling anti-democratic reforms implemented by Hungarian Prime Minister Viktor Orbán.

The question for the rest of us, who see democracy teetering on the brink, is how to stop Trump and Project 2025. It is possible, but unlikely, that Special Counsel Jack Smith could derail Trump’s campaign through the multiple prosecutions he is pursuing. It is also possible, but by no means certain, that the Supreme Court, currently stacked with three Trump appointees, could overturn or weaken some aspects of a second-term Trump agenda if Smith fails.

The most effective way to stop Trump and the new movement behind him, however, is to defeat him at the polls, making sure that he never accedes to power again. Sadly, that, too, remains decidedly uncertain.

It’s always important to read the fine print. This sage adage applies not only to credit card applications, auto loans, and mortgages, but also to the decisions of the United States Supreme Court.

At first glance, the Court’s ruling in Allen v. Milligan, released on June 8, appears to be a far-reaching victory for voting rights. In a 5-to-4 majority opinion written by Chief Justice John Roberts, the Court struck down Alabama’s racist new Congressional map for violating Section 2 of the Voting Rights Act (VRA) of 1965.

Numerous commentators have praised the decision. Upon close inspection, however, the ruling is narrow in scope, preserving a vital part of our most basic national voting law only by the slimmest of margins. Worse, the decision may turn out to be short-lived.

The blocked Alabama map was drawn up by the state’s legislature in November 2021 based on data derived from the 2020 U.S. Census. Although Black residents comprise roughly 27 percent of the total population, the map created only one Congressional voting district out of seven in which they would hold a majority.

Advocacy groups represented by the NAACP Legal Defense Fund and the ACLU sued to block the map, arguing that it contravened Section 2 of the VRA, which bans any “standard, practice, or procedure” that “results in a denial or abridgement of the right of any citizen . . . to vote on account of race or color.”

The groups also contended the new map ran afoul of the Supreme Court’s past precedent decisions that date back to the 1980s and outlaw “racial gerrymanders.” Such gerrymanders occur when a state uses race as the primary factor in redistricting to dilute the voting power of minority populations by either “packing” them into super-majority districts or “cracking” them into several white-majority districts. The Alabama map is a classic instance of packing.

Joined by the Court’s three Democratic appointees and Justice Brett Kavanaugh, Roberts issued a statutory decision in Milligan, agreeing that the Alabama map violated the Court’s past decisions on Section 2. But he did not write approvingly of those decisions.

More importantly—and here is where the fine print comes in—Roberts added a gratuitous observation at the end of his opinion that all but invites future Constitutional challenges to Section 2, writing: “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. 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, Kavanaugh also issued a warning to voting rights advocates, asserting that the protections against racial gerrymandering under Section 2 “cannot extend indefinitely into the future.”

The crimped nature of the Milligan decision is consistent with Roberts’ track record. It is not a departure.

In truth, John Roberts has never been a friend of voting rights. As a young lawyer working in the Reagan Administration, he authored several memos criticizing the VRA.

In 2013, as head of the nation’s most powerful judicial body, he composed the majority opinion in Shelby County v. Alabama (2013), which gutted 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.

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.

Still, any liberal victory in today’s Supreme Court is noteworthy, and for that, we can breathe a sigh of relief. As a result of Milligan, the Alabama legislature will have to redraw the state’s voting map to include either an additional majority African American district or create new districts in which African American voters are more evenly distributed. The ruling could also bolster racial gerrymandering litigation underway in other states, although each contested voting map will have to be adjudicated on its own merits.

But don’t get carried away thinking that Roberts has changed his political stripes, or that his widely touted commitment to institutionalism means that he is prepared to stand up long-term to the Court’s hardcore rightwing bloc led by Justice Clarence Thomas. Roberts is also an ultra-conservative. He just favors a slower, more gradual approach to the erosion of fundamental rights. Death by a thousand cuts, if you will, rather than a bullet to the back of the head.

Facing a mountain of ethics concerns, the Chief Justice of the U.S. Supreme Court has rebuffed Senate investigators, again.

Counting on John Roberts to fix what’s wrong with the Supreme Court is a fool’s errand. This was true before the latest round of scandals involving Clarence Thomas, and it remains true in their aftermath. Roberts may be an “institutionalist,” as he is often labeled by mainstream legal commentators, but he appears to be just fine with the direction and management of the institution he leads. Far from being a potential savior of the court, Roberts is at the center of its many burgeoning problems.

On April 10, the eleven Democratic Senators who hold a slim majority on the upper chamber’s judiciary committee cosigned a respectful letter to Roberts, imploring him to open an investigation into Thomas’s failure to disclose a stunning array of gifts that he and his wife Ginni Thomas, the crackpot uber-right election denier, had received from Texas billionaire and Republican mega-donor Harlan Crow over the past twenty years. On April 20, they sent a second letter, inviting Roberts to testify on May 2 about the need for ethics reform on the court.

On April 25, Roberts rebuffed the solicitations, writing “I must respectfully decline your invitation. Testimony before the Senate Judiciary Committee by the chief justice of the United States is exceedingly rare as one might expect in light of separation of powers concerns and the importance of preserving judicial independence.”

Roberts attached a six-page “Statement on Ethics Principles and Practices” to his letter, signed by all nine sitting justices. The statement asserted that the justices “consult a wide a wide variety of authorities to address specific ethical issues. They may turn to judicial opinions, treatises, scholarly articles, disciplinary decisions, and the historical practice of the Court and the federal judiciary. They may also seek advice from the Court’s Legal Office and from their colleagues.”

Roberts’s refusal to testify in May was not his first snub of the Senate Judiciary Committee. In 2012, he rejected its request that the Supreme Court officially adopt the federal code of conduct.

The ethics statement further claimed that the court “takes guidance from” the Judicial Code of Conduct for U.S. Judges, although it also correctly noted that the code “applies by its terms only to lower court federal judges.” The Supreme Court stands alone as the only federal judicial body not bound by an ethics code.

Roberts’s response was not his first snub of the Senate Judiciary Committee. In February 2012, he rejected the committee’s request that the court officially adopt the federal code of conduct. That request was triggered by Thomas’s failure to report his wife’s income from the Heritage Foundation, Hillside College, and other employers on his annual financial disclosure forms, as required by the Ethics in Government Act. After the watchdog group Common Cause publicly complained about the issue in January 2011, Thomas amended some thirteen-years’ worth of disclosures.

The embarrassing episode, however, had no discernible impact on Roberts. Without specifically referring to Thomas, Roberts praised his colleagues in his 2011 Year-End report on the Federal Judiciary as “jurists of exceptional integrity and experience whose character and fitness have been examined through a rigorous appointment and confirmation process . . . We are all deeply committed to the common interest in preserving the Court’s vital role as an impartial tribunal governed by the rule of law.”

In fact, Roberts has spent nearly his entire legal career as a highly partial rightwing operative, dating back to his stint as a clerk for the late Supreme Court Chief Justice William Rehnquist after he graduated from Harvard Law School. In 1981, Roberts took a job as special assistant to then-Attorney General William French Smith, becoming, in the words of Washington Post columnist Ruth Marcus, a “loyal foot soldier in President Ronald Reagan’s legal revolution” aimed at rolling back the regulatory framework of the New Deal, and restricting the gains of the civil rights movement. In one particularly aggressive legal memo, he urged the Reagan Justice Department to support legislation to strip the Supreme Court of jurisdiction over abortion, busing, and school prayer cases. The proposal was deemed too radical even for the Reagan Administration, and failed to gain traction.

Other early stops in Roberts’s career included his service as an associate White House counsel from 1982 to 1986, and his work from 1989 to 1992 as principal deputy solicitor general in the administration of George H.W. Bush.

Roberts left the public sector after the election of Bill Clinton, but maintained his role as a Republican insider. According to investigative reporter Marc Caputo, Roberts operated 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. Roberts was recruited to the Bush team by none other than Ted Cruz, then a young and very conservative Harvard-educated lawyer who had once also clerked for Rehnquist.

Since assuming the post of Chief Justice, Roberts has led the court on a rightwing trajectory, betraying the pledge he made at his 2005 confirmation hearing to serve in the fashion of a baseball umpire, “calling only balls and strikes, and not to pitch or bat.” Under his stewardship, the court has issued a blistering array of extremist rulings on voting rights, gerrymandering, union organizing, the death penalty, environmental protection, gun control, abortion, campaign finance, and the use of dark money in politics. His 2013 majority opinion in Shelby County v. Holder, which gutted the Voting Rights Act, ranks among the worst.

Nor is Roberts above suspicion when it comes to potential personal conflicts of interest. His wife Jane Sullivan Roberts has a long history as an anti-abortion activist. She also reportedly made more than $10 million in commissions between 2007 to 2014 as a legal recruiter for blue-chip law firms, some of which had business before the Supreme Court.

If the Senate Judiciary Committee is serious about reforming the Supreme Court and restoring the court’s image as a neutral arbiter of justice, it must take off the kid gloves. Instead of weakly worded requests for Roberts’s cooperation, the committee should subpoena him to testify, and serve notice that its oversight of the court’s operations is just getting started.

The problem with Justice Clarence Thomas isn’t just that he’s reactionary or morally bankrupt. It’s that he isn’t going anywhere any time soon.

Thomas is in his thirty-first year on the high court, placing him twelfth on the list of longest-serving Supreme Court justices in history. While he will turn seventy-five in June, he appears in reasonably good physical health, and has no intentions of stepping down.

In 1993, Thomas told two of his law clerks that he planned to serve on the court until 2034, and that until then he would do his utmost to make the lives of liberals “miserable.” If his plans hold, Thomas will eventually become the longest-tenured Justice of all time, surpassing William O. Douglas, who stayed on the panel for thirty-six years and 209 days.

Earlier this month, Thomas again made good on his pledge to own the libs—and further erode the stature of the Supreme Court in the process, when he issued a statement denying any wrongdoing in response to a bombshell ProPublica article. The investigation revealed a stunning array of secret gifts that Thomas and his wife Ginni Thomas, the crackpot uber-right election denier, have received from Texas billionaire and Republican mega-donor Harlan Crow over the past twenty years.

Crow is a founder of the conservative nonprofit Club for Growth. He also sits on the board of the American Enterprise Institute, an aggressive rightwing think tank with a long track record of publicizing and promoting amicus briefs in pending Supreme Court cases. The institute’s roster of affiliated scholars over the decades has included the likes of Newt Gingrich, Dinesh D’Souza, and Robert Bork. Crow also reportedly houses a signed copy of Mein Kampf and two paintings by the Führer himself in the art collection that he maintains at his Highland Park mansion in Dallas County, Texas.

On April 6, ProPublica reported that the Thomases took a 2019 trip to Indonesia on Crow’s Bombardier Global 5000 jet, followed by a nine-day island-hopping cruise aboard Crow’s superyacht. ProPublica reporters valued the junket at more than $500,000 dollars, nearly double Thomas’s annual salary of $285,000.

The Indonesia excursion was only one of many trips for which Crow has picked up the check on the Thomases’ behalf. Thomas and his wife regularly take summer vacations at Crow’s rustic resort in the Adirondack Mountains of New York, and have been hosted at Crow’s ranch in East Texas. Crow also paid for Thomas to attend a one-week retreat at the exclusive all-male Bohemian Grove in California. And to top off his beneficence, in 2011, Crow gave half a million dollars to a Tea Party group founded by Ginni Thomas, who received a $120,000 salary from the group.

On April 13, ProPublica updated its reporting to add that in 2014, Crow purchased the two-bedroom home in Savannah, GA, where Thomas’s mother lived, along with two nearby vacant lots, for $133,363. The home was jointly owned by Thomas, his mother, and the family of the Justice’s late brother. Expensive improvements were subsequently made to the property, where a source told ProPublica Thomas’s mother still resides.

Thomas’s rejoinder to the original ProPublica story (he has not as yet replied to the update), was released by the court’s public information office. It is a work of evasion and artifice, reading in full:

Harlan and Kathy Crow are among our dearest friends, and we have been friends for over twenty-five years. As friends do, we have joined them on a number of family trips during the more than quarter century we have known them. Early in my tenure at the Court, I sought guidance from my colleagues and others in the judiciary, and was advised that this sort of personal hospitality from close personal friends, who did not have business before the Court, was not reportable. I have endeavored to follow that counsel throughout my tenure, and have always sought to comply with the disclosure guidelines. These guidelines are now being changed, as the committee of the Judicial Conference responsible for financial disclosure for the entire federal judiciary just this past month announced new guidance. And, it is, of course, my intent to follow this guidance in the future.

That last sentence refers to new guidelines adopted in March by the Judicial Conference of the United States, the administrative arm of the federal courts that modestly tightens the financial disclosures federal judges must make each year for themselves and their spouses under the 1978 Ethics in Government Act (EGA) to safeguard against conflicts of interest.

The new regulations require judges to disclose gifts in excess of $415 from people other than relatives, any complimentary transportation, and any free stays at commercial properties. There is a giant loophole, however, in both the new and old regulations that Thomas has exploited: Free lodging at the personal residences or properties owned by individuals (rather than corporations) is exempt under a “private hospitality exception,” and need not be reported.

The loophole is outrageous, but not as wide as Thomas apparently thinks. Even if he had no obligation to report his sojourns on Crow’s ranch and Adirondack summer playground, Thomas still had a duty to disclose other goodies such as the purchase of his family’s Savannah home, his trip to Bohemian Grove, his numerous rides on Crow’s private jet, and his Indonesian cruise.

“When a Justice’s lifestyle is being subsidized by the rich and famous, it absolutely corrodes public trust,” Virginia Canter, the chief ethics counsel at Citizens for Responsibility and Ethics in Washington (CREW), told ProPublica for its initial article. “Quite frankly, it makes my heart sink.”

Thomas’s official statement is also rife with hypocrisy. In a 2020 documentary film about his life, Created Equal: Clarence Thomas in His Own Words, Thomas can be seen on-screen, quipping, “I prefer seeing the regular parts of the United States. I prefer the RV parks. I prefer the Walmart parking lots to the beaches and things like that. There’s something normal to me about it. I come from regular stock, and I prefer that—I prefer being around that.” The documentary was bankrolled in part by—you guessed it—Harlan Crow.

Like Thomas, Crow has released a statement denying any improprieties in his relationship with the Justice.

The ProPublica revelations are by no means Thomas’s first brush with ethics issues. Scandals and controversy have long dogged Thomas, dating back to his raucous 1991 Senate confirmation hearing, when he was credibly accused of sexual harassment by Anita Hill and other female colleagues while he was the chair of the Equal Employment Opportunity Commission.

In 2011, amid an outcry from Common Cause and other watchdog groups, he was forced to amend thirteen years of disclosures for failing to report his wife Ginni’s income from the Heritage Foundation, Hillsdale College, and other employers. Thomas claimed at the time that he that he had misunderstood his reporting responsibilities, and simply checked the wrong boxes on his disclosure forms, an odd response from a Supreme Court justice, let alone a lawyer.

In 2021 and again in 2022, Thomas arguably crossed ethical lines once more when he failed to recuse himself in cases involving the January 6 insurrection and Donald Trump’s efforts to overturn the results of the 2020 election, despite Ginni’s prominent role as an organizer of the “Stop the Steal” campaign. Thomas’s participation in such cases may have violated the federal recusal statute.

As veteran legal commentator Adam Cohen noted in a recent op-ed in The New York Times, Democrats and Republicans in Congress joined forces fifty-four years ago to demand that Supreme Court Justice Abe Fortas resign as a result of alleged financial improprieties that pale in comparison to those involving Thomas.

Although Thomas is a clear-cut candidate for impeachment or at the very least an investigation by the Senate Judiciary committee, there is no chance today of a similar bipartisan move against Thomas. The Republican Party of 2023 loves Clarence Thomas, and as long as it does, he isn’t going anywhere.

If the U.S. Supreme Court winds up overturning President Joe Biden’s student debt-relief plan, it will likely do so by invoking a once-obscure legal theory called “the major questions” doctrine. The theory asserts that administrative actions that affect issues of great social importance are invalid unless they are expressly and precisely authorized by Congress.

Like the doctrine of “qualified immunity” that the court often uses to shield police officers from liability in federal civil rights lawsuits, the major questions doctrine is a made-up theory created by the court itself. It is nowhere to be found in the text of either the Constitution or in any federal statute.

The doctrine first appeared in Supreme Court decisions in the 1990s, but has been expanded by the court under the leadership of Chief Justice John Roberts as a cudgel against progressive initiatives undertaken by federal regulatory agencies. In 2021, the Roberts court invoked the doctrine to strike down the Center for Disease Control and Prevention’s moratorium on residential evictions. Last year, it used the same defense to quash the Occupational Safety and Health Administration’s vaccine-or-test mandate for large employers; and the Environmental Protection Agency’s plan to impose an industry-wide carbon-emission cap on power plants.

Biden announced his student debt plan on August 24, delivering on a promise he made during the 2020 presidential campaign. The plan directs the Department of Education to cancel up to $20,000 in federal student debt for Pell Grant recipients and up to $10,000 for non-Pell Grant recipients. Borrowers are eligible if their individual income is less than $125,000, or $250,000 for married couples.

The plan was necessary, according to the White House “fact sheet” that accompanied the President’s announcement, to help alleviate the economic harm caused by the COVID-19 pandemic. Although Biden’s proposal is far less ambitious than the plans offered during the 2020 campaign by Senators Elizabeth Warren of Massachusetts and Bernie Sanders of Vermont, it would bring immediate relief to American students and graduates, many of whom are drowning in debt. According to the Education Data Initiative, 43.5 million student borrowers owe a staggering $1.75 trillion in outstanding loans. Approximately $1.6 trillion of that amount consists of loans issued by the federal government through the Department of Education, with the remainder coming from private sources. An estimated 43.5 million borrowers have federal student loan debt, with an average balance of $37,574.

On February 28, the Supreme Court heard oral arguments in two cases challenging the debt plan. The first, Biden v. Nebraska, was brought by six states with Republican governors and attorneys general. The second, Department of Education v. Brown, was initiated by two student loan borrowers who claim the plan doesn’t go far enough. The students’ case has been funded by The Job Creators Network, a conservative advocacy group established by Home Depot co-founder Bernie Marcus.

The two cases present identical legal questions, procedurally and substantively. On the procedural side, the issue is whether any of the challengers have “standing” to sue the Administration. Standing refers to the capacity of a party to bring a lawsuit. To establish standing, a party must demonstrate that they have suffered actual harm as a result of a challenged government action.

During the oral arguments conducted in both cases, Solicitor General Elizabeth Prelogar, representing the Administration, asserted that neither the states nor the student borrowers can show they have been injured by the debt-relief program. The students, she argued, would receive no benefits at all if the plan is invalidated. The states, she contended, lacked standing because they could not show a loss of revenue from the proposal.

Although it is sometimes difficult to predict final outcomes from the tenor of oral arguments, it seems a safe bet that the court’s Republican majority will let the state case proceed, even if they opt to dismiss the student case for lack of standing.

On the merits, it appears all but certain that the majority will invalidate the plan under the major questions doctrine. Prelogar argued that the HEROES Act of 2003—a law passed after the September 11 attacks that empowers the Secretary of Education to “modify” student-loan programs in response to a “national emergency”—authorizes the Department of Education to forgive student debt in response to the emergency created by COVID-19.

The Republican justices, however, were quick to counter. Congress “could have . . . referred to loan cancellation [in the HEROES Act] but those [words] are not in the statutory text,” Justice Brett Kavanaugh interjected in a rejoinder to Prelogar in the states’ case, implying that the Administration had overstepped its authority with Biden’s plan.

Amplifying Kavanaugh’s concerns, Justice Clarence Thomas added, “this is a grant of $400 billion, and it runs headlong into” Article I of the U.S. Constitution, which stipulates that only Congress can appropriate money.

As the argument in the states’ case proceeded, it became clear that what really rankled the court’s conservatives was not the way the plan was drafted, but its generosity. “We’re talking about half a trillion dollars and forty-three million Americans,” Chief Justice Roberts remarked at one point, seemingly aghast at the cumulative price tag.

Roberts’ reservations, however, paled in comparison to those voiced by Justice Neil Gorsuch, who characterized the plan as fundamentally unfair to “to people who have paid their loans, people . . . who have planned their lives around not seeking loans and people who are not eligible for loans in the first place and that a half a trillion dollars is being diverted to one group of favored persons over others.”

Much the same could be said of nearly every emergency declaration issued by the federal government. Lines are drawn; some people are singled out for relief while others are not. If fairness is our guide, the remedy in such situations is to assist all in need, not to withdraw assistance for everyone.

Student debt relief, whatever the shortcomings of the Biden plan, enjoys broad popular support, especially among minority populations who are often hit hardest by the burdens of debt. In the meantime, the Supreme Court’s popular approval ratings continue to plummet, and for good reason.

The Supreme Court's landmark decision in Dobbs v. Jackson Women’s Health Organization, issued last year, overturned Roe v. Wade (1973) and Planned Parenthood v. Casey (1992), and dismantled the federal constitutional right to abortion. One of the lingering questions in the aftermath of Dobbs is whether any of the five justices who voted to take that drastic step lied about their views on abortion during their respective confirmation hearings before the Senate Judiciary Committee.

A strong argument can be made that each of them either lied or made materially misleading statements.

Samuel Alito

Alito authored the 5-4 majority opinion in Dobbs, joined by Justices Clarence Thomas, Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett.

He delivered the court’s holding in stark and aggressive terms: "Roe was egregiously wrong from the start. Its reasoning was exceptionally weak, and the decision has had damaging consequences. And far from bringing about a national settlement of the abortion issue, Roe and Casey have enflamed debate and deepened division. It is time to heed the Constitution and return the issue of abortion to the people's elected representatives."

As any seasoned lawyer can attest, the phrase "egregiously wrong" when used by a justice in the normally dignified context of appellate litigation is the equivalent of a verbal smackdown. It's meant as an insult and a sign of contempt.

But contrast Alito's inflammatory language in Dobbs with his Senate confirmation hearing testimony in 2006.

In response to a series of questions about Roe and Casey posed by the late Arlen Specter, then a Republican Senator from Pennsylvania, Alito said:

"Well, I think the doctrine of stare decisis is a very important doctrine. It's a fundamental part of our legal system, and it's the principle that courts in general should follow their past precedents, and it’s important for a variety of reasons. It's important because it limits the power of the judiciary. It's important because it protects reliance interest, and it's important because it reflect[s] the view that courts should respect the judgments and the wisdom that are embodied in prior judicial decisions….

Roe v. Wade is an important precedent of the Supreme Court. It was decided in 1973, so it has been on the books for a long time. It has been challenged on a number of occasions…and the Supreme Court has reaffirmed the decision, sometimes on the merits, sometimes in Casey based on stare decisis, and I think that when a decision is challenged and it is reaffirmed that strengthens its value as stare decisis…."

Alito was confirmed by the Senate on January 31, 2006 by a vote of 58-42. His confirmation testimony about abortion can be viewed here.

Clarence Thomas

Thomas not only joined Alito's majority opinion in Dobbs, but he also issued a separate concurrence in which he called upon his colleagues to revisit and overturn such privacy-based precedents as Griswold v. Connecticut (1965) on the right to contraception; Lawrence v. Texas (2003) on the right to engage in same-sex intimacy; and Obergefell v. Hodges, (2015) on the right to same-sex marriage.

Here's what Thomas had to say on these subjects at his 1991 confirmation hearing when questioned by Senator Patrick Leahy, Democrat of Vermont:

"Senator, I think that the Supreme Court has made clear that the issue of marital privacy is protected, that the State cannot infringe on that without a compelling interest, and the Supreme Court, of course, in the case of Roe v. Wade has found an interest in the woman's right to—as a fundamental interest a woman's right to terminate a pregnancy….

Senator, your question to me was did I debate [in law school or elsewhere] the contents of Roe v. Wade, the outcome in Roe v. Wade, do I have this day an opinion, a personal opinion on the outcome in Roe v. Wade; and my answer to you is that I do not."

Thomas was confirmed on October 15, 1991 by a vote of 52-48. A portion of his confirmation hearing can be viewed here.

Neil Gorsuch

Replying to questions about Roe raised by Senator Charles Grassley, Republican of Iowa, Gorsuch testified in his 2017 confirmation hearing:

"I would tell you that Roe v. Wade, decided in 1973, is a precedent of the U.S. Supreme Court. It has been reaffirmed. The reliance interest considerations are important there, and all of the other factors that go into analyzing precedent have to be considered. It is a precedent of the U.S. Supreme Court. It was reaffirmed in Casey in 1992 and in several other cases. So, a good judge will consider it as precedent of the U.S. Supreme Court worthy as treatment of precedent like any other."

Later in the hearing, questioned by Senator Diane Feinstein, Democrat of California, Gorsuch added:

"Part of the value of precedent [is] it has lots of value. It has value, in and of itself, because it is our history, and our history has value intrinsically. But it also has an instrumental value in this sense. It adds to the determinacy of law…. It is part of the reason why the rule of law in this country works so well."

Gorsuch was confirmed on April 7, 2017, by a vote of 54-45. His confirmation testimony can be seen here.

Brett Kavanaugh

Kavanaugh wrote a concurring opinion in Dobbs, arguing, in contrast to Thomas, that overruling Roe would not threaten or "cast doubt" on the court's precedent decisions on contraception and marriage. He also claimed that Dobbs would not prevent states that recognize abortion rights from continuing to do so in the future.

Nonetheless, he concluded that when it comes to abortion, the "Constitution does not grant the nine unelected Members of this Court the unilateral authority to rewrite the Constitution to create new rights and liberties based on our own moral or policy views."

He also, incredulously, compared Dobbs to Brown v. Board of Education (1954), the landmark decision that overturned Plessy v. Ferguson (1896), which upheld state-imposed racial segregation. In fact, Dobbs is more akin to Plessy, permitting states to gut abortion rights and establish a new regime of discrimination that denies pregnant people their right to reproductive freedom.

Kavanaugh took an entirely different tack on Roe and Casey in his confirmation hearing, remarking in a colloquy with Senator Feinstein:

"I will tell you what my view right now is. Which is, it [Roe] is an important precedent of the Supreme Court that has been reaffirmed many times. But then Planned—and this is the point that I want to make that I think is important. Planned Parenthood v. Casey reaffirmed Roe and did so by considering the stare decisis factors. So Casey now becomes a precedent on precedent. It is not as if it is just a run-of-the-mill case that was decided and never been reconsidered, but Casey specifically reconsidered it, applied the stare decisis factors, and decided to reaffirm it. That makes Casey a precedent on precedent."

Kavanaugh was confirmed on October 6, 2018 by a vote of 50-48. His exchange with Feinstein can be viewed here.

Amy Coney Barrett

Like the other justices who voted to overrule Roe and Casey, Barrett did her best to dodge inquiries about the constitutionality of abortion. However, in a telling back-and-forth with Feinstein about whether she would uphold abortion rights if confirmed, she declared:

"Senator, I completely understand why you are asking the question, but again, I can't pre-commit or say yes, I'm going in with some agenda, because I'm not. I don't have any agenda."

Barrett was confirmed on October 26, 2020, by a vote of 52-48. Her exchange with Feinstein can be viewed here.

Whether the five justices who scuttled Roe and Casey committed perjury or simply deployed their ample skills to avoid full disclosure, their auditions for lifetime appointments on the highest court in the land were an affront to the rule of law and the Constitution they are sworn to uphold. And that is something we should never let them forget.

Under the guise of the regressive legal theory of “originalism,” the United States Supreme Court Republican-appointed majority has issued a series of ultra-right rulings on such vital issues as voting rights, gerrymandering, union organizing, the death penalty, environmental protection, gun control, abortion, and campaign finance. The end goal appears to be nothing less than the dismantling of the last vestiges of the New Deal and the Civil Rights movement.

But in addition to being reactionary, is the court also guilty of corruption? The answer depends on how we define and think of corruption.

In the strictest legal sense, the justices appear to be in the clear. Under federal law, “public corruption” is defined as “a breach of the public’s trust by government officials who use their public office to obtain personal gain,” asking for or receiving anything of value in exchange for an official act. In a 2016 decision reversing the bribery conviction of former Virginia GOP Governor Bob McDonnell, the Supreme Court narrowed the legal definition of public corruption to require strict proof of a “quid pro quo”—a swap of money or another benefit in return for a specific governmental favor.

But from a larger moral and political perspective, the court’s Republican majority is far from innocent. We expect all federal judges—and particularly those at the top of the judicial pyramid—not only to be law-abiding but to be free of political bias and conflicts of interest. We expect them to honor the enormous faith we have placed in them to use their lifetime appointments to be forthright stewards of justice and democracy.

That faith has been breached time and again.

Ethical Cannon 2A of The Code of Conduct for United States Judges requires those who don the robe to “respect and comply with the law,” and “to act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.” Cannon 2B further advises that a “judge should not allow family, social, political, financial, or other relationships to influence judicial conduct or judgment.”

There also is federal statute, found at Title 28, section 455 of the United States Code, that requires judges to disqualify themselves when they have a personal bias or prejudice toward a party, or when the judge or their spouse has a financial interest in a proceeding, or they or their spouses have “any other interest that could be substantially affected by the outcome” of a proceeding before them.

The problem is that the Code of Conduct does not apply to the Supreme Court. And there is no mechanism for enforcing the disqualification criteria against a sitting justice. The Supreme Court stands alone as the only tribunal in the nation without any ethical accountability beyond impeachment, which for all practical purposes is an ineffective remedy. (Only one Justice in our entire history has been impeached—Samuel Chase in 1804—and he was acquitted by the Senate.)

The most obvious offender is Clarence Thomas, who has gotten away with flagrant misconduct as a result of this lack of accountability. Under the 1978 Ethics in Government Act, all high-ranking federal officials are required to file yearly financial disclosure statements for themselves and their spouses to safeguard against conflicts of interest. But for many years, Thomas failed to report his wife Ginni's earnings on the mandatory annual financial disclosure forms that he signed under penalty of perjury, indicating that his spouse had no non-investment income. In fact, she was steadily employed in high-level jobs as a policy analyst and an outspoken conservative activist.

According to Common Cause, Ginni—who is also a lawyer—received more than $686,000 between 2003 and 2007 working for the Heritage Foundation. In 2011, claiming incredulously that he had misunderstood his reporting responsibilities, Thomas amended his financial disclosures, which can now be examined on the OpenSecrets.org website.

Thomas again generated headlines when he refused to recuse himself in cases involving the January 6 insurrection and Trump’s efforts to overturn the results of the 2020 election, despite Ginni’s prominent role as an organizer of the “stop the steal” campaign.

Thomas is not the only justice with a spouse whose work has raised conflict-of-interest questions. According to The New York Times, Chief Justice Roberts’ wife Jane has made millions in her career as a recruiter for high-profile law firms, some of which litigate cases before the Supreme Court. The Chief Justice, however, has never recused himself from a matter involving his wife’s recruits and has never disclosed her client list on his annual financial reports.

Additional potential conflicts of interest have surfaced around donations made to the Supreme Court Historical Society, a non-profit charity founded in 1974 to promote and celebrate the court’s legacy. Over the past two decades, the society reportedly raised more than $23 million from corporations, law firms, and other groups. The donors, in turn, receive special access to the Justices, who regularly attend the society’s annual black-tie dinner as well as lectures and other functions the society sponsors.

Among those who have attended society events and helped raise donations on its behalf is the Reverend Rob Schenck, an Evangelical minister and anti-abortion crusader. In a June 2022 letter to Chief Justice Roberts and in later interviews with The New York Times, Schenck claimed he was told in advance of the court’s 2014 decision in Burwell v. Hobby Lobby, which held that the owners of for-profit corporations may lawfully refuse to fund health insurance coverage for employees for contraception on religious grounds. The source of the leak, Schenck alleged, was Justice Samuel Alito, the author of the Hobby Lobby majority opinion.

Alito also has been at the center of the scandalous leak last May of the draft majority opinion in Dobbs v. Jackson Women’s Health Organization, which Alito wrote, overruling Roe v. Wade.

The most surprising thing about the final report of the U.S. House Select Committee to Investigate the January 6th Attack on the United States Capitol isn’t the mountain of evidence of Donald Trump’s criminality that it contains nor the criminal referrals it makes to the Justice Department, but its readability. According to The New York Times, at least a half dozen publishing houses are releasing their own editions of the 845-page tome. On a December 22 broadcast, MSNBC host Lawrence O’Donnell nailed it when he remarked, “This is the way a great novelist would lay out this story.”

But it isn’t just any novel the report calls to mind. The closest approximation is Fyodor Dostoevsky’s classic psychological drama, Crime and Punishment.

Both the great novel and the report are constructed around a tortured central character who thinks he is above the law. Dostoevsky’s dark protagonist Roidon Raskolnikov kills an elderly pawnbroker and her half-sister and then struggles to convince himself that murder can be justified if committed to demonstrate and secure the power of an extraordinary man. Similarly, the report’s protagonist is the forty-fifth President of the United States, who plots to overthrow his own government in a vain and desperate attempt to cling to power and glory.

I’m not the first commentator to compare Trump to Raskolnikov. New York Times columnist Maureen Dowd beat me to the punch in a 2017 op-ed penned during the Mueller investigation, where she wrote:

“Both men [Trump and Raskolnikov] are naifs who arrive and think they have the right to transgress. Both are endlessly fascinating psychological studies: self-regarding, with Napoleon-style grandiosity, and self-incriminating. Both are consumed with chaotic, feverish thoughts as they are pursued by law enforcement.”

This isn’t to say, of course, that the parallels are exact. Unlike Raskolnikov, for example, Trump will never acknowledge his culpability for the insurrection, which led to the deaths of seven people. The report, after all, isn’t a work of fiction, even if at times it might read like one with chapter headings including “The Big Lie,” “I Just Want to Find 11,780 Votes,” and “Just Call it Corrupt and Leave the Rest to Me.”

And then there is the all-important question of punishment. Raskolnikov ultimately confesses his guilt and is sentenced to prison. Trump, by contrast, remains a free man, and continues to rage on his social media platform—the ludicrously named Truth Social—against his accusers, protesting his innocence and claiming, as always, that he’s the victim of a political witch hunt.

Trump’s prosecution, at least at the federal level (he’s also under serious investigation in the states of Georgia and New York), now rests in the hands of the Justice Department and special counsel Jack Smith. The DOJ has received criminal referrals from the committee for four overlapping federal felonies committed by the former President:

1. Obstruction of an official proceeding, referring to the joint session of Congress convened on January 6, 2021, to confirm the election of Joe Biden, and the effort to pressure Vice President Mike Pence to refuse to certify Biden’s victory;
2. Conspiracy to defraud the United States, referring to the former president’s multi-phase scheme to overturn the election;
3. Conspiracy to make a false statement, referring to the plan to submit false slates of electors to Congress and the National Archives; and
4. Inciting, assisting, or giving aid and comfort to an insurrection, referring to Trump’s incendiary speech immediately prior to the riot at the Capitol and his behavior during the riot.

The committee has also referred five of Trump’s former aides and associates to the Justice Department: John Eastman, Mark Meadows, Rudy Giuliani, Kenneth Cheseboro and Jeffrey Clark. Trump, however, is the only member of the crew who has been referred for insurrection. The report singles out the ex-commander-in-chief on the insurrection charge, stating “the central cause of January 6th was one man, former President Donald Trump.”

Although the referrals are non-binding, Smith is already in the thick of investigating the insurrection and the plot to overturn the 2020 election, presenting evidence to at least two grand juries. The special counsel is also leading the investigation into Trump’s removal of top-secret government documents to his Mar-a-Lago resort in Florida.

Convicting Trump will not be easy, especially on charges related to January 6. Each of the felonies referred to the Department of Justice requires proof of criminal intent. The government will have to establish beyond a reasonable doubt that Trump knew he had lost the election and was acting with a “corrupt purpose” to obstruct the work of the joint session of Congress or, on the conspiracy referral, that he had an intent to defraud the nation with the submission of fake slates of electors.

It will be particularly challenging to prove that Trump incited or assisted the insurrection as Trump would likely mount a First Amendment defense. In its landmark 1969 decision in Brandenburg v. Ohio, the Supreme Court articulated a two-part test for punishing incendiary speech, holding that the First Amendment protects advocating the use of force or lawbreaking “except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action” (emphasis added).

Still, it’s easy to understand why the committee chose to cite Trump for insurrection. Trump knew that members of the crowd who had gathered to hear him talk were armed when he urged them to march to the Capitol to “fight like hell.” And amid the ensuing melee, he accused Pence of cowardice for not using his authority as Vice President to change the outcome of the election, seething in a Tweet, “Mike Pence didn’t have the courage to do what should have been done to protect our Country and our Constitution…USA demands the truth!” Almost immediately after the Tweet was posted, the report notes, “the crowd around the Capitol surged, and more individuals joined the effort to confront police and break further into the building.”

Should Trump be tried and convicted of insurrection, he would face a prison sentence of up to ten years. He would also be barred from holding federal office for life.

So, what are the odds that Trump is finally held to account? Will Jack Smith prove to be Trump’s Porfiry Petrovich, the police investigator who brought Raskolnikov to justice, or will he turn out to be another Robert Mueller? We may have the answer in a matter of months.

If you’re feeling a bit of deja vu all over again (apologies to Yogi Berra) after Attorney General Merrick Garland’s appointment of a new special counsel to investigate Donald Trump, join the club.

In 2017, former FBI Director Robert Mueller was appointed as a Justice Department special counsel to investigate Trump in connection with Russian meddling in the 2016 election. After two years of dogged probing accompanied by breathless media hype, Mueller produced a 448-page report that essentially cleared Trump of conspiring with the Russians, but laid the groundwork for prosecuting him on multiple charges of obstruction of justice. The report, however, was subsequently dismissed by then-Attorney General Bill Barr, and Mueller stumbled badly in his testimony before the House in July 2019. Mueller has since receded into private life and relative obscurity.

This isn’t to say that the new special counsel—longtime prosecutor Jack Smith—will meet the same fate. Unlike the seventy-eight-year-old Mueller, who came out of retirement to accept his position, Smith, fifty-two, is at the peak of his legal career. His resume includes stints with both the District Attorney in New York County and the U.S. Attorney’s Office. In 2010, he was put in charge of the Justice Department’s Public Integrity section, a post he held for five years. Since 2018, he has worked with the International Criminal Court at The Hague, investigating war crimes.

In short, Smith is eminently qualified. But can he deliver?

On the plus side, Smith will be unconstrained by Justice Department policy prohibiting the prosecution of sitting presidents. As a former chief executive, Trump is fair legal game.

Smiths’ appointment order authorizes him to investigate both the January 6 insurrection and the plot to interfere with the lawful transfer of power as well as the removal of government documents to Mar-a-Lago. The order equips Smith with subpoena power to fulfill his mission, and clarifies that he will not take over the prosecution of any individuals who physically stormed the Capitol on January 6, 2021. The Justice Department will continue to furnish line deputies to handle those cases, allowing Smith to focus on Trump and the ex-President’s top advisors and co-conspirators.

In his November 18 press conference announcing Smith’s appointment, Garland pledged to provide the new special counsel with the resources needed to conduct his work “quickly and completely.” This means that Smith will have his own budget and office space, and that, in contrast to Mueller, he won’t have to build his prosecutorial team from scratch. Justice Department lawyers have been leading federal grand-jury probes of Trump’s role in the insurrection and the Mar-a-Lago documents case for many months, and Smith will be able to bring them on board. Putting the existing Trump investigations under the centralized supervision of a single special counsel should also yield greater efficiency, enabling Smith to hit the ground running.

In making his decision, Garland hewed closely to the text of the Justice Department’s regulations, which direct the Attorney General to name a special counsel in situations that present either a conflict of interest for the department or “other extraordinary circumstances” that require such a move “in the public interest.” Smith’s appointment was in the public interest, Garland said, because of “the former President’s announcement that he is a candidate for President in the next election, and the sitting President’s stated intention to be a candidate as well.”

As many commentators have noted, Garland hopes that putting day-to-day operations in the hands of a special counsel will help insulate the department from charges of bias and politicization.

Unfortunately, this is where Garland’s reasoning badly goes astray. Political independence and neutrality are lofty ideals for the Justice Department, but Trump and the MAGA movement will never accept Smith’s appointment.

Within hours of the appointment, House Representative Marjorie Taylor Greene of Georgia took to Twitter to demand Garland’s impeachment. Trump was even more unhinged. In a diatribe broadcast from Mar-a-Lago on November 18, he branded Smith “a super radical left special counsel,” and termed his appointment “appalling” and “a horrendous abuse of power.” Reprising the tenor of his incendiary speech before the January 6 riot at the Capitol, he urged his supporters to resist the special counsel, telling them, “You people have to fight. You have to fight. You have to be strong.”

Garland has also been criticized by some prominent liberal and progressive observers who think Smith’s appointment will do nothing to insulate the Justice Department from partisan attacks and will, at best, lead to delays in returning an indictment against Trump. The Nation’s Elie Mystal put it this way during an appearance November 18 on MSNBC’s The Beat with Ari Melber:

“There is not a single argument that I have heard in defense of Merrick Garland’s self-serving, pearl-clutching conference that he gave this morning that points–that answers the critical question, if he was going to do this, if he believes this is in the public interest, then why didn’t he believe that was in the public interest 18 months ago when he easily could have done the exact same thing?...

“If Merrick Garland thinks that kicking this to Jack Smith from The Hague is going to take down the partisan pressure on him and make the right wing feel like this is a fair process, he’s an idiot.”

While I am not prepared to go as far as Mystal (Garland may be spineless but he’s no dummy), it should be emphasized that the final decision on whether to prosecute Trump will rest with the Attorney General. Smith may call for an indictment, but the buck will stop with Garland, just as it did with Bill Barr and Robert Mueller.

This time, things may be different. Hope, as they say, springs eternal.

The next time you pick up a magazine or go online to read an article criticizing Donald Trump or any of his corrupt enablers, give thanks to the U.S. Supreme Court for protecting freedom of the press.

Of course, I’m not referring to the current Supreme Court. The current court is dominated by a hard-right majority that doesn’t give a jurisprudential fig about sustaining independent media.

I’m referring to the Supreme Court of a bygone era; specifically, to the landmark 1964 case of New York Times v. Sullivan, which for the first time placed constitutional limits on the power of public officials to sue for defamation.

The Sullivan case arose from a full-page ad taken out in The New York Times by civil rights leaders in 1960 to raise funds for Martin Luther King, Jr. and other activists who had been arrested and abused by police in Montgomery, Alabama. Although the main thrust of the ad was spot on, it contained a few factual errors, such as misstating the number of times King had been arrested, and claiming that police had padlocked a college dining hall in an attempt to intimidate protesting students.

The advertisement published in The New York Times on March 29, 1960, that led to Sullivan's defamation lawsuit. / Committee to Defend Martin Luther King and the Struggle for Freedom in the South.

Citing the inaccuracies, Montgomery police commissioner L. B. Sullivan sued the Times for defamation in state court. He prevailed, and an all-white jury awarded him $500,000 in damages.

When the Sullivan verdict was rendered, defamation lawsuits were governed exclusively by state law, and they were often slanted heavily in favor of plaintiffs, especially rich and well-connected ones who could afford steep litigation costs. To prevail, plaintiffs only had to establish that they had been defamed by a preponderance of the evidence—the lowest standard of proof in our legal system.

In many instances, the only viable defense available to reporters, publishers, and ordinary people who chose to speak out against government misfeasance was that their allegations were true in all respects. As a practical matter, this meant that anyone wishing to criticize the wealthy and the powerful did so at considerable personal risk.

The New York Times appealed the Sullivan decision, and fortunately, the Supreme Court under the leadership of the legendary Chief Justice Earl Warren granted review.

By the time the appeal reached the high court, there were at least ten other libel suits pending against the Times that had been lodged by local and state officials in Alabama alone. Together, the suits sought $5,600,000 in damages, an enormous sum in the early 1960s. The litigation was part of a broad strategy employed by Southern racists to use the courts to bankrupt newspapers that were covering the civil rights movement, and in the process undermine the movement itself.

The Supreme Court realized the magnitude of the issue and rose to the moment.

On March 9, 1964, the court overturned the Sullivan verdict. Writing for a unanimous bench, Justice William Brennan reasoned that our “profound national commitment” to “uninhibited, robust and wide-open debate” required protection under the First and Fourteenth Amendments, even when the debate “includes vehement, caustic and sometimes unpleasantly sharp attacks.” Henceforth, the court held, public officials would be precluded from recovering damages for allegedly defamatory statements related to official conduct unless they established by “clear and convincing evidence” (a far higher standard of proof) that such statements were made with “actual malice”—that is, that they were made with the knowledge that they were false, or with reckless disregard for the truth.

Sullivan constitutionalized the law of defamation, establishing the actual malice standard throughout the country. In a series of subsequent decisions in the late 1960s and early 1970s, the court extended Sullivan and the actual malice rule from “public officials” to “public figures,” as Trump has become since leaving the White House.

The American right has never accepted Sullivan and the protections it offered the media. Donald Trump has been particularly eager to undermine those protections, and he remains on the attack.

In 2006, Trump sued Time Warner Books and writer Timothy O’Brien, claiming that he had been libeled in a biography O’Brien had written, TrumpNation: The Art of Being The Donald. The alleged defamation was O’Brien’s assertion that, considering all of the real estate huckster’s assets and liabilities, Trump’s net worth was actually in the neighborhood of $150 million to $250 million rather than the $5 to $6 billion he had claimed.

After five years of litigation, O’Brien won a state appellate court ruling in 2011, granting summary judgment in his favor and finding that Trump could not, as a matter of law, meet the Sullivan test of actual malice. For all the mischief he had caused, Trump was ordered to fork over $1 million in legal fees.

But Trump was unbowed.

Throughout the 2015-2016 presidential campaign, he pledged to change the nation’s defamation laws, effectively declaring war on the First Amendment. In a February 2016 rally in Fort Worth, Texas, he told a cheering crowd, “I think the media is among the most dishonest groups of people I’ve ever met. They’re terrible. If I become President, oh, do they have problems. They’re going to have such problems.”

He added: “One of the things I’m going to do if I win, and I hope we do, and we’re certainly leading, is I’m going to open up our libel laws so when they write purposely negative and horrible and false articles, we can sue them and win lots of money. We’re going to open up those libel laws so that when The New York Times writes a hit piece, which is a total disgrace, or when The Washington Post, which is there for other reasons, writes a hit piece, we can sue them and win money instead of having no chance of winning because they’re totally protected.”

In 2020, Trump’s election campaign filed defamation complaints against The New York Times, CNN, and The Washington Post. Only the case against the Post is still pending. The others were quickly dismissed for running afoul of Sullivan.

But Trump still wasn’t done.

Earlier this month, he sued CNN again for defamation, alleging, among other things, that the network had maligned him when various program hosts and guests labeled his claims of 2020 election fraud as “the big lie,” invoking comparisons with the propaganda of Adolf Hitler.

Although the lawsuit has been widely panned as having zero chance of winning (one commentator has described the complaint as “a rancid garbage fire” of personal grievances), winning at the trial level is clearly not the goal of the ex-commander-in-chief’s lawyers.

The goal is to get the case—or one like it—before the Supreme Court to overturn Sullivan, much as the court jettisoned Roe v. Wade last term in its Dobbs ruling. Two justices—Clarence Thomas and Neil Gorsuch—are already on record calling for Sullivan to be reexamined. In 2019, in a concurring opinion in a case involving Bill Cosby, Thomas characterized Sullivan and the rulings that extended it to public figures as “policy-driven decisions masquerading as constitutional law.”

It would only take three more votes on the court to consign Sullivan to the same fate as Roe. There’s no reason to believe that Justices Samuel Alito, Brett Kavanaugh, and Amy Coney Barrett wouldn’t join Thomas and Gorsuch in such an undertaking.

The court’s arch conservatives are on a crusade to return American law to the late nineteenth century. And they are just beginning, with a push and a shove from a former President.

To challenge the GOP’s latest cruel stunt, advocates hope to make their civil-rights a case class action suit.

If you thought the GOP’s war on immigrants couldn’t get any more twisted or depraved, think again. A new level of depravity was reached on September 14, when approximately fifty Venezuelan migrants were lured by false promises of employment, housing, and educational opportunities to board two private chartered jets that flew them from San Antonio, Texas, to Martha’s Vineyard, Massachusetts.

Unbeknownst to the migrants, they had been transplanted as part of a premeditated plan hatched by Florida Governor Ron DeSantis. The flights were paid for by Florida taxpayers from a $12 million appropriation approved by the state legislature earlier this year to implement the governor’s policy of relocating “unauthorized aliens” to so-called “sanctuary” jurisdictions.

Instead of being welcomed with open arms and job applications in Martha’s Vineyard, the migrants found themselves abandoned and alone on the tarmac of the resort island’s tiny airport. Fortunately, they were taken in by local church groups later that day and were subsequently provided with temporary housing on a nearby U.S. military base.

Eager to bolster his anti-immigration image and his presidential aspirations, DeSantis has proudly taken responsibility for the stunt and has been basking ever since in the resulting publicity. In a press conference on September 15, he blasted the Biden Administration’s border security policies, declaring, “Every community in America should be sharing in the burdens [of increased immigration]. It shouldn’t all fall on a handful of red states.”

Both DeSantis and the migrants will now be going to court. On September 20, the Boston-based Lawyers for Civil Rights, a non-profit public-interest law firm network formed amid the civil rights era in 1968, filed a federal civil-rights lawsuit to enjoin the governor’s policy and have it declared unconstitutional.

Totaling thirty-five pages, the federal complaint lists three individual Venezuelan migrants as plaintiffs, along with the activist organization Alianza Americas, which provides counseling and outreach services to immigrants. In addition to DeSantis, the complaint names Florida transportation secretary Jared Perdue as a defendant, along with five accomplices who have not yet been identified.

The lawyers are also seeking to have the case certified as a class action brought on behalf of “all immigrants who have been, or will in the future be, induced by Defendants to travel across state lines by fraud and misrepresentation.”

The complaint sets forth twelve separate legal causes of action, including violations of the migrants’ rights under the Fourth and Fourteenth Amendments. In addition, it asserts that DeSantis’ relocation policy runs afoul of Article I of the Constitution, which vests the federal government with the power to regulate immigration, and conflicts with the Supremacy Clause (Article VI, cl.2), which makes the Constitution and federal statutes the “supreme law of the land.”

The underlying facts of the case read like something culled from the script of a bad Hollywood caper—and it begins before the migrants even reached Florida. In early September, according to the complaint, the defendants sent at least two accomplices to “troll” the streets outside a migrant center in San Antonio, “pretending to be good Samaritans offering humanitarian assistance.” One of the accomplices called herself “Perla” and the other introduced himself as “Emanuel.”

To gain the plaintiff’s trust, Perla and Emanuel gave them $10 McDonald’s gift certificates and “made false promises and false representations” that if the migrants were willing to board airplanes to other states, “they would receive employment, housing, educational opportunities, and other like assistance upon their arrival.”

The migrants had recently been released by federal immigration authorities pending further legal proceedings to determine their rights to remain in the United States. Lacking work and suffering from food insecurity, they agreed to the proposal, thinking they were headed for Washington, D.C., Boston, or some other large city where they would find refuge and begin new lives.

The price tag for the flights came to $615,000, or $12,300 per passenger. The Intercept has reported the funds were paid to Vertol Systems Company, Inc., an aviation firm based in Portland, Oregon, with a history of donating to Republican politicians and conservative causes.

Both planes landed briefly in Florida. One then touched down in North Carolina and the other in South Carolina before taking off again. At some point aboard each aircraft, according to the complaint, the migrants were given a “shiny, red folder that included … official-looking materials, including a brochure entitled ‘Massachusetts Refugee Benefits’ and instructions for how to change an address with U.S. Citizenship and Immigration Services.” The complaint alleges “the brochure was manufactured by Defendants,” and “echoed the type of false representation[s]” the migrants had been given orally.

As cruel as it is, DeSantis’s scheme is only a small part of a wider relocation campaign designed to expose what the MAGA right denounces as liberal hypocrisy on immigration. Since April, Texas Governor Gregg Abbott has bused more than 10,000 migrants to New York City, Washington, D.C., Chicago, and other blue-state cities. Arizona Governor Greg Ducey has also gotten in on the act, busing nearly 2,000 migrants out of state.

Cruelty, however, isn’t necessarily illegal. To win their case, Lawyers for Civil Rights must prove that their clients were defrauded and didn’t knowingly consent to be flown to Martha’s Vineyard. DeSantis has insisted the migrants signed consent forms—printed in English and Spanish—before they boarded. Governors Abbott and Ducey also claim their programs are strictly voluntary.

If the attorneys can’t prove their claims in a civil suit, there will be little to no chance that DeSantis, Abbott, or Ducey will face criminal prosecutions, whether for kidnapping, human trafficking, or any other serious offenses, as some prominent Democrats and leftwing legal commentators have suggested. In a criminal case, the burden is on the government to establish guilt beyond a reasonable doubt. In most civil cases, the standard of proof is a mere preponderance of evidence.

One thing, however, remains certain: In times of social crisis, immigrants are an easy target for political demagogues. Historically, dating back to the Alien and Sedition Acts of 1798, the Chinese Exclusion Act of 1882, the “red scares” of the early-to-mid-20th century, the “Operation Wetback” mass deportations of the Eisenhower era, the anti-immigrant factory raids of the 1970s, the Illegal Immigration Reform and Immigrant Responsibility Act signed into law by President Bill Clinton in 1996, and the revolting family-separation policies of the Trump Administration, all of our major political parties have joined in the game.

Above all else, it is that enduring undercurrent of prejudice and scapegoating that must change—and legal challenges like this will help get us there.

If you’re looking for a figure from history to compare Donald Trump to in the wake of the FBI’s search of his Mar-a-Lago resort in Palm Beach, Florida, I have a suggestion that may surprise you: Al Capone.

As I once wrote in connection with Trump’s first impeachment, the similarities between Trump and the renowned mobster are many; both, for example, allegedly ran wide-ranging criminal enterprises, and both were adept at side-stepping legal accountability.

The Feds tried but failed to bring Capone to justice for masterminding the St. Valentine’s Day Massacre of 1929, in which seven of his gangland Chicago rivals were killed, and for the violent extortion and bootlegging empire he built during Prohibition. In the end, Capone was sent to prison in 1931 for the white-collar offense of income tax evasion. After serving his time in custody, Capone was paroled in 1939, suffering from syphilis and early-onset dementia. He died at his villa in Florida eight years later, with what his doctor described as the mentality of a twelve-year-old child.

Like Capone, Trump might still evade liability for the most egregious crimes he may have committed–seditious conspiracy and obstruction of Congress related to his attempt to overturn the results of the 2020 election. But the FBI and the Justice Department appear to have the receipts—literally—to prove him guilty of willfully mishandling, concealing, and perhaps destroying top-secret federal documents.

The search warrant executed at Mar-a-Lago on August 8 has been unsealed, along with the “return” to the warrant, listing the items taken from the property.

The warrant indicates that Federal Magistrate Judge Bruce Reinhart, who sits in West Palm Beach, found there was probable cause for the FBI to search Mar-a-Lago and seize all “physical documents and records, constituting evidence, contraband, fruits of crime, or other items illegally possessed in violation of” a section of the Espionage Act and two other federal criminal statutes.

The Espionage Act outlaws gathering, transmitting, or losing national defense information. The other statutes prohibit the concealment or removal of federal records, and the destruction, mutilation or alteration of records to obstruct a federal investigation. The statutes prescribe punishments ranging from three to twenty years in prison.

The return to the warrant indicates the FBI seized twenty-eight items of evidence, including twenty-one boxes containing unspecified materials, four sets of “top secret” documents and one set of “classified TS/SCI [top-secret segmented compartmented information] documents,” a reference to information concerning intelligence sources and methods that requires special handling and could involve nuclear science and design files. In addition, the FBI hauled away various photo binders, information about the president of France, and Trump’s signed grant of clemency to Roger Stone.

Trump and his sycophants have floated various defenses against a possible future prosecution. In a post on his Truth Social media platform two days after the search, the former President suggested federal agents may have secretly “planted” evidence against him. The claim has been echoed by at least one of Trump’s attorneys and by right-wing media personalities such as Jesse Waters of Fox News.

No evidence, however, has been made public to support the claim, and subsequent reporting has disclosed that Trump and family members, who were in Trump Tower in New York City at the time of the search, watched the entire operation via a closed-circuit security feed broadcast from Mar-a-Lago.

Trump and his minions have also protested that any documents the FBI found had been declassified before they were removed to Mar-a-Lago while Trump was still in office. Thus, they contend, no crimes were committed.

Although Presidents do have broad authority to declassify information, this defense won’t save Trump, either. Detailed procedures must be followed to implement a declassification directive, the directive must be in writing, and even a President lacks authority to unilaterally declassify nuclear secrets.

Equally problematic for Trump is that the three statutes he is alleged to have violated do not explicitly require that the records in question be classified. All that needs to be shown is that the records belong to the government, not Trump, and in the case of the Espionage Act, that the records pertain to national defense.

Apparently realizing that he’s been trapped by a predicament of his own making, Trump has argued that former-President Obama left the White House with “33 million pages of documents, much of them classified,” including items related to U.S. nuclear programs, and that Obama faced no adverse consequences. However, the National Archives and Records Administration (NARA) quickly issued a sharp rebuke of the Obama comparison. Obama, according to the agency, turned everything over.

As the Justice Department’s probe proceeds, Trump also can be expected to reprise his condemnation of Hillary Clinton, who narrowly avoided prosecution for her use of a private email server that contained classified documents while she was Secretary of State. This defense, too, will prove ineffective.

Clinton was investigated by the FBI. But, as former Director James Comey famously explained in a July 2016 press release, while Clinton was “extremely careless” in her email use, it could not be shown that she acted with criminal intent to willfully mishandle classified information or obstruct justice.

The same cannot be said of Trump. The National Archives first alerted Trump in January 2021 of his obligation to return all official records from his time in office. Trump turned over fifteen boxes of records a year later, but withheld other records. NARA referred the matter to the Justice Department last February, and the Justice Department has been trying ever since to obtain compliance.

Far from cooperating with the department, Trump hedged, delayed, and prevaricated. According to The New York Times, a Trump attorney signed a written statement in June, asserting that all classified material held at Mar-a-Lago had been returned. That assertion was untrue.

In a sign of growing desperation, some of the former President’s staunchest allies, including Republican Senator Lindsey Graham of South Carolina, are demanding to see the affidavit filed in support of the search warrant, upon which Judge Reinhart based his finding of probable cause.

Affidavits are the heart of any application for a search warrant. In compliance with the Fourth Amendment, they are used to detail the facts and circumstances requiring the issuance of a warrant, and to specify the places to be searched and the items to be seized. They are typically sworn to by federal agents and are rarely released while an investigation is in progress in order to protect the identity of federal agents and any informants who have cooperated with the government.

Still, if there was ever a case that merited the early release of a redacted version of an affidavit, the first-ever search and seizure involving a former President of the United States is such a case. And make no mistake: Releasing the affidavit is the last thing Trump and his supporters really should want. They would be well advised to devote all their energy and limited legal talent to suppressing the affidavit along with the evidence seized. If and when it sees the light of day, the affidavit will help to bury Trump.

On August 14, Trump offered yet another defense, demanding that the FBI return the seized material as some of the boxes taken allegedly contained confidential attorney-client communications, and items protected by executive privilege. The former President apparently doesn’t realize that by raising this objection, he has completely undercut his earlier claim that the documents were planted.

We may want to see Trump prosecuted for his role in the January 6 insurrection, but holding him accountable for serious records and reporting violations may be the easiest and quickest road to a felony conviction.

The approach worked for Al Capone nearly a century ago, and may well work for Trump today.

The U.S. Supreme Court has entered a legal fantasy world: advancing a regressive political agenda free from democratic accountability.

In Federalist No. 78, Alexander Hamilton famously predicted that the judicial branch of government would “always be the least dangerous to the political rights of the Constitution; because it will be least in a capacity to annoy or injure them.” In retrospect, Hamilton could not have been more wrong.

The U.S. Supreme Court is now dominated by five hardcore ideologues—three of them nominated by former President Donald Trump. In its most recent term, the court made a mockery of Hamilton’s forecast of judicial restraint, crossing a variety of political fault lines on abortion, the Second Amendment, “religious liberty” and the separation of church and state, climate change, civil rights, campaign finance, and voting rights (see sidebar). Far from the neutral institution envisioned by Hamilton, the court has become, according to many commentators, a quasi-legislative body dedicated to advancing a regressive political agenda free from democratic accountability.

Welcome to the new era of right-wing judicial supremacy.

The court’s power grab reached new heights last term with its landmark abortion decision in Dobbs v. Jackson Women’s Health Organization, which concerned a Mississippi statute that bans almost all abortions after fifteen weeks, with no exceptions for rape or incest. Authored by Justice Samuel Alito and joined by Justices Clarence Thomas, Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett, Dobbs delivered on the right’s long-festering fever dream of reversing Roe v. Wade and Planned Parenthood v. Casey, the twin pillars of the federal right to abortion.

Stephanie Dalton Cowan

Alito declared that both Roe and Casey were “egregiously wrong from the start” because the word “abortion” doesn’t appear anywhere in the first eight amendments to the Constitution, or anywhere else in our national charter. He also pontificated that abortion cannot be considered an implied or “unenumerated” fundamental right under the Fourteenth Amendment’s due process clause—as Roe and Casey both held—because it is not “deeply rooted in [our] history and tradition.” As a result, he concluded, the court was free to overrule Roe and Casey—decided in 1973 and 1992, respectively—unconstrained by the doctrine of stare decisis, which holds that judges should adhere to precedent.

Instead of respecting precedent, Alito reached deep into the bowels of Anglo-American common law to override it. He cited, among other sources, the work of Henry de Bracton, a thirteenth-century English cleric and judge who condemned abortions as homicide, and, a seventeenth-century English jurist who described abortion as a “great crime” and sentenced at least three women to death for witchcraft. By the time the Fourteenth Amendment was ratified, Alito raged on, “three-quarters of the States [had] made abortion a crime at all stages of pregnancy,” in order to prove his point that abortion rights are not deeply rooted in our history.

The only solution, in Alito’s view, was to strip abortion of its Constitutional protections and return the issue to “the people’s elected representatives.” According to the pro-choice Guttmacher Institute, in response to Dobbs, twenty-six states have already outlawed or severely restricted abortion, or will soon do so.

Alito’s analysis, though the last word in our Constitutional system, is deeply flawed. While controversial, Roe and Casey were decided squarely in line with prior Supreme Court precedents that extended the concept of liberty under the Fourteenth Amendment to other unenumerated privacy interests like the right to interracial marriage (Loving v. Virginia, 1967), the right to obtain contraceptives (Griswold v. Connecticut, 1965), and the right to not be sterilized without consent (Skinner v. Oklahoma, 1942).

Nor is it true, as a matter of historical fact, that abortion at all stages was mostly illegal before Roe. As University of Illinois history professor Leslie J. Reagan explained in her definitive study, When Abortion Was a Crime, “During the eighteenth and early nineteenth centuries, abortion of early pregnancy was legal under common law. Abortions were illegal only after ‘quickening,’ the point at which a pregnant woman could feel the movements of the fetus (approximately the fourth month of pregnancy).”

Repudiating Roe and Casey was also unnecessary. The court easily could have upheld the Mississippi statute without scrapping the federal right entirely. This was the position advocated by Chief Justice John Roberts, who penned a concurring opinion, agreeing that the Mississippi law should be upheld, but urging his colleagues to move more cautiously.

A draft of Alito’s opinion was leaked to the press in May, sparking speculation that Roberts has lost control of the panel he heads. Together with the recent revelations that Virginia “Ginni” Thomas, the wife of Justice Thomas, was part of the plot to overturn the 2020 presidential election, and the arrest of a man in early June for attempting to murder Justice Kavanaugh, the leak has created the impression that a once stable institution is now in turmoil as it moves ever rapidly to the right.

Both Dobbs and this term’s transformational ruling on the Second Amendment — New York State Rifle & Pistol Association Inc. v. Bruen — are based on the judicial philosophy known as “originalism.”

Originalism has led the court to enter a legal fantasy world in which the answers to contemporary questions about matters such as voting rights and gerrymandering, union organizing, the death penalty, abortion, and gun control are to be found solely in the meaning that the Constitution had for the Founding Fathers. For originalists, this meaning is forever fixed, and can only be altered by Constitutional amendments.

As a tool of judicial decision-making, originalism has been around a long time. One of its earliest expressions came in the Dred Scott case of 1857, perhaps the most odious decision ever issued by the Supreme Court, which held that Black Americans of African descent could never be U.S. citizens. Plessy v. Ferguson, the 1896 decision that upheld the constitutionality of racial segregation even after the ratification of the Thirteenth, Fourteenth, and Fifteenth Amendments, is another originalist landmark.

But as an explicit judicial theory, originalism did not come into vogue until the early 1980s, popularized by Reagan-era Attorney General Ed Meese, the late, failed Supreme Court nominee Robert Bork, and the late Justice Antonin Scalia. Since then, it has been embraced almost universally by legal conservatives.

In Bruen, the court struck down a New York regulation that required applicants for concealed handgun permits to show a special need for protection. In a 6-3 opinion written by Thomas, and joined by all the court’s Republican appointees, including Roberts, the court held that the regulation—which has been on the books since 1911—was a historic “outlier” on gun control, and as such, violated the Second Amendment right to “bear arms” outside the home.

If anything, Thomas is an even more incompetent historian than Alito. As Fordham University history professor Saul Cornell, one of the foremost authorities on the actual history of the Second Amendment, noted in a scathing critique of Bruen published by SCOTUSBlog:

“The originalist methodology applied by Thomas has one set of rules that apply to interpreting legal texts that support gun rights, and another more demanding set of standards that apply to those that undermine them. The Thomas version of originalism might be summarized as follows: No amount of evidence is enough to support gun control, but no iota of evidence is too little to legitimate gun-rights claims. If one of the goals of originalism was to limit judicial discretion (a value few originalists continue to espouse now that they have a supermajority on the court), then the Thomas rule does the opposite. It provides a license to cherry-pick evidence with reckless abandon if the materials support the ideological agenda of the Federalist Society.”

The big question now is where the court goes from here. In his concurring opinion in Dobbs, Thomas called on the court to reconsider such “substantive due process” privacy-based precedents as the right to contraception (Griswold), the right to engage in same-sex intimacy (Lawrence v. Texas, 2003), and the right to same-sex marriage (Obergefell v. Hodges, 2015). Notably absent from Thomas’s hit list was interracial marriage. Thomas, of course, is married to a white woman.

As hypocritical and cruel as Thomas is, he no longer operates on the fringes of the bench. To the contrary, he has become one of the court’s intellectual leaders.

If there is any kind of afterlife, Alexander Hamilton is no doubt turning in his grave at the Trinity Church cemetery in Lower Manhattan.

If you are tired of waiting for Attorney General Merrick Garland to indict Donald Trump for seditious conspiracy, insurrection, obstruction of Congress, or any other crime involving the attempt to overturn the 2020 election, I have some words of consolation: Steve Bannon’s trial for contempt of Congress has begun. If convicted, he will likely go to jail.

Ordinarily, I wouldn’t take pleasure in the prospect of anyone doing time, as our penal institutions are shamelessly overcrowded and do little in the way of rehabilitation or deterrence to lower our outrageously high crime rates. But apart from Trump himself, there might not be any other person more deserving of a stint in the pokey than Bannon, the loud-mouthed propagandist and podcaster who led Trump’s 2016 political campaign to victory, and subsequently served as the disgraced ex-President’s chief strategist and senior counselor for nearly eight months in 2017.

The facts of the case against Bannon are straightforward and, from a legal perspective, devastating.

On September 23, 2021, the House Select Committee investigating the January 6 attack on the U.S. Capitol issued a subpoena commanding Bannon to produce documents on October 7 and sit for a sworn deposition on October 14. Bannon defied both requests.

On October 20, the committee voted to hold Bannon in contempt. Three days later, the full House, with the support of nine Republicans and every Democrat, passed a contempt resolution against Bannon and forwarded a request for prosecution to the Department of Justice.

On November 12, a federal grand jury returned a two-count indictment against Bannon for disobeying the subpoena. The first count cites him for refusing to testify, and the second for failing to turn over documents.

Contempt of Congress is a misdemeanor, but a very serious one. Conviction carries a mandatory minimum sentence of thirty days and a maximum of one year in jail. There is no possibility of probation, according to a 2011 federal court ruling interpreting the contempt statute.

The committee set forth its reasons for seeking Bannon’s cooperation in a succinct one-page letter that accompanied the subpoena. The letter reads in part:

“The Select Committee has reason to believe that you have information relevant to understanding important activities that led to and informed the events at the Capitol on January 6, 2021. For example, you have been identified as present at the Willard Hotel on January 5, 2021, during an effort to persuade Members of Congress to block the certification of the election the next day, and in relation to other activities on January 6....Moreover, you are quoted as stating, on January 5, 2021 [on Bannon’s ‘War Room’ podcast] that ‘[a]ll hell is going to break loose tomorrow.’ Accordingly, the Select Committee seeks both documents and your deposition testimony regarding these and multiple other matters…”

The subpoena itself lists seventeen categories of records and communications. In addition to the items highlighted in the letter, the list includes all discussions that Bannon had with Trump about the planning, financing, and staging of the events of January 6, and any communications that Bannon had with Trump between November 3, 2020, and January 20, 2021, “concerning efforts to contest the election results or delay or impede the electoral vote.”

The list also includes communications Bannon may have had with any third parties about the insurrection. The subpoena specifically names attorney Boris Epstein, who worked as a strategic adviser on Trump’s 2020 election campaign; Kash Patel, a one-time aide to former GOP Congressman Devin Nunes of California; and Ezra Cohen-Watnick, an intelligence officer who briefly served as the acting Under-Secretary of Defense in 2020.

Initially, Bannon reacted to the subpoena with tough-guy bravado. Following his first court appearance in November, he told a small crowd of supporters and reporters, “This is going to be the misdemeanor from hell for Merrick Garland, Nancy Pelosi, and Joe Biden. Joe Biden ordered Merrick Garland to prosecute me from the White House lawn when he got off Marine One. And . . . we’re going to go on the offense. We’re tired of playing defense. We’re going to go on the offense on this and stand by.”

Bannon might have been emboldened by the fact that contempt of Congress prosecutions are relatively rare, and because his case was assigned to Federal District Court Judge Carl Nichols, a Trump appointee who was narrowly confirmed by the Senate in 2019. In March, Nichols dismissed a felony obstruction charge brought against a Texas man accused of storming the Capitol.

Nichols, however, has been anything but lenient with Bannon. On June 15, Nichols denied Bannon’s motion to dismiss the case, rejecting his claims of executive privilege and his contention that the select committee was established illegally in violation of House rules.

As Bannon’s July 18 trial date approached, he apparently had a “come-to-Jesus moment” typical of many criminal defendants faced with imminent defeat. In an email sent to committee chairman Representative Bennie Thompson, Democrat of South Carolina, by one of his lawyers on July 9, Bannon offered to testify after all. The email also cited a rambling letter written by Trump, waiving claims of executive privilege.

Neither Judge Nichols nor the DOJ was swayed by Bannon’s change of position. On July 11, Nichols denied Bannon’s request to postpone his trial to October.

Nichols also ruled that Bannon will not be permitted to argue executive privilege as a defense at trial, and that he will not be allowed to subpoena House Speaker Nancy Pelosi or other members of the select committee to testify. The rulings left attorney David Schoen—who represented Trump in his second impeachment trial and later joined Bannon’s legal team—so exasperated that he remarked in open court, “What’s the point in going to trial if there are no defenses.”

Unlike seditious conspiracy or obstruction cases, contempt of Congress cases do not involve complex issues of intent. All that the prosecution needs to prove is a willful or deliberate intention not to respond to a Congressional subpoena. Evil motives or corrupt purposes need not be shown.

Bannon’s eleventh-hour offer to testify likely won’t save him, either. As the DOJ noted in a recent court filing, Bannon’s crime was committed and became complete in October, when he dodged the committee’s subpoena.

What this means, bottom line, is that Bannon had best hope he isn’t housed with the general population at the infamous D.C. Central Detention Facility, where he will probably serve his sentence. The same goes for former Trump aide Peter Navarro, who has also been indicted for defying a select committee subpoena. Navarro’s trial is set to begin November 17.

And who knows—a victory in the Bannon and Navarro cases might even encourage Garland to find his spine and prosecute Trump for attempting to overthrow what remains of our damaged democracy.

Ihave a lot of respect for the House Select Committee investigating the January 6 insurrection at the U.S. Capitol. After meeting in closed session for nearly a year, interviewing more than a thousand witnesses and gathering more than 100,000 documents, the nine-member committee will begin a series of televised public hearings on June 9 and release their findings later this summer.

But what, realistically, can we expect to learn that we don’t already know? More importantly, what impact, if any, will the hearings have?

Representative Jamie Raskin, Democrat of Maryland, has set an extremely high bar for the panel. “The hearings will tell a story that will really blow the roof off the House,” Raskin declared in April at an event hosted by Georgetown University’s Center on Faith and Justice in Washington, D.C.

For Raskin, who is one of seven Democrats on the committee and a recognized constitutional scholar, January 6 is the story of an attempt to overthrow U.S. democracy orchestrated by Donald Trump himself.

“No President has ever come close to doing what happened here in terms of trying to organize an inside coup to overthrow an election and bypass the constitutional order,” Raskin said at Georgetown. And no President, he continued, has ever used “a violent insurrection made up of domestic violent extremist groups, white nationalist and racist, fascist groups in order to support the coup.”

As much as I admire Raskin and consider him a person of measured judgment, it might not matter in the end whether the committee’s hearings blow the roof off or—to invoke a dark metaphor from earlier this century—produce “shock and awe.” The sad truth is that our democracy is so damaged it might be beyond repair.

According to the latest annual report published by Freedom House, a non-profit think tank based in Washington, D.C., the United States has fallen to a new low in global rankings in terms of political rights and civil liberties, dropping from an aggregate score of 94 a decade ago to 83 today. The new score places the United States alongside countries like Panama, Romania, and Croatia, and behind Argentina and Mongolia, both of which earned scores of 84. The United Kingdom, in contrast, received a score of 93, and Canada a 98. Sweden, Finland, and Norway topped the list with perfect tallies of 100.

And while a boatload of blame for the decline in U.S. democracy can be attributed to Trump and his incitement of the insurrection, our political rot runs far deeper than the January 6 committee can ever probe or remedy.

According to another Freedom House study, written last year by Sarah Repucci, the organization’s vice president for research and analysis, this trend ia the result of a decade of decline.

“The deterioration was initially marked by harmful new restrictions on voting, legislative gridlock that has made it nearly impossible for the country to address serious public policy challenges, and the growing political influence of well-funded special interest groups,” Repucci maintains. “The downward trend accelerated considerably over the last four years, as the Trump Administration trampled institutional and normative checks on its authority.”

Repucci identifies “three enduring problems that play an outsized role in undermining the health of the American political system: unequal treatment for people of color, the improper influence of money in politics, and partisan polarization and extremism.”

All of these, she argues, are aggravated by the “realities of wealth distribution in the United States [that] determine who can make … sizable [political] donations, and thus gain special access, to government representatives. Income inequality has deepened without interruption since 1980; by one count, in 2019 the wealthiest 10 percent of Americans controlled roughly 84 percent of the assets traded on Wall Street. Black families’ median and average wealth was less than 15 percent that of White families in 2019, while Hispanic families’ wealth was less than 20 percent that of White families. There is also a wealth gap between ordinary citizens and those who represent them.”

Remedying the ills of democracy that Trump exploited will require not only that he and his enablers be held accountable, but a far-reaching transformation of our basic social and economic institutions—a prospect that seems increasingly remote as the midterm elections approach and a possible Republican takeover of Congress looms.

This does not mean, of course, that the January 6 committee’s hearings won’t be worth watching.

In all, according to a draft schedule obtained by The Guardian, the committee is expected to hold six hearings. Both the opening session on June 9 and the final meeting on June 23 will air on national television and radio stations during prime time. The others will be held during daytime hours on June 13, 15, 16, and 21.

A select committee member will lead each hearing, assisted by the panel’s attorneys. Witnesses will be called, videos will be shown, and text messages will be displayed in an effort to present a detailed multi-media narrative of Trump’s scheme to overthrow U.S. democracy, stretching over a sixty-five-day period from the time Trump falsely declared that he won the 2020 election until the insurrection of January 6.

In addition to the physical assault on the Capitol, the committee is expected to cover the Trump White House’s efforts to coordinate the illegal plan to send fake electors to Congress, the plot to seize voting machines, and the unlawful plan to delay the certification of Joe Biden’s win. The Guardian also reports that the panel likely will delve into the origins of the “Stop the Steal movement” and the Trump campaign’s connections to violent groups like the Oath Keepers and the Proud Boys.

Once the hearings are completed, the committee will prepare a report summarizing its findings, recommend legislation to prevent future insurrections, and make criminal referrals to the Department of Justice. There is speculation the committee will recommend that Trump be prosecuted for obstruction of Congress and conspiracy to defraud the United States for his role in the plot to overturn the 2020 election, but that has yet to be confirmed.

To date, the committee has made four contempt referrals, and the Department of Justice has responded with indictments of former Trump advisers Steve Bannon and Peter Navarro while declining to charge both Mark Meadows and Dan Scavino.

I have no doubt that the committee’s report will be well-crafted and illuminating. What I fear, however, is that it will read more as an epitaph for our democracy than a roadmap toward reckoning and renewal.

If the draft decision stands, terminating a pregnancy will become illegal in twenty-six states and perhaps the nation as a whole.

Make no mistake: If U.S. Supreme Court Justice Samuel Alito’s draft opinion in Dobbs v. Jackson Women’s Health Organization becomes final without significant revisions, abortion will once again become a crime in the United States. And it won’t just become a crime in some states. If Republicans regain control of Congress in 2022 and the White House in 2024, there’s a very real possibility that abortion could become a federal offense.

To understand how this could happen, it’s necessary to grasp the sweeping and patently ideological nature of Alito’s draft. The draft overrules both Roe v. Wade and Planned Parenthood v. Casey, the twin pillars of the federal constitutional right to abortion. The opinion doesn’t just chip away at the federal right or uphold Mississippi’s statute banning nearly all abortions after fifteen weeks—it abolishes the federal right entirely and without limitation.

Alito stresses that both the Roe and Casey decisions were “egregiously wrong” from the start because the word “abortion” doesn’t appear anywhere in the first eight amendments to the Constitution, or anywhere else in our national charter. As a result, he writes, abortion cannot be deemed a right explicitly reserved to the people.

Alito also argues that abortion cannot be considered an implied or “unenumerated” right under the Fourteenth Amendment—as Roe and Casey held—because the right is not “deeply rooted in our history and tradition.” To the contrary, he contends, when the Fourteenth Amendment was ratified in 1868, “three-quarters of the States [had] made abortion a crime at all stages in pregnancy.”

Against this backdrop, Alito concludes the court is free to overrule both Roe and Casey—decided in 1973 and 1992, respectively—unconstrained by the doctrine of stare decisis, which holds that courts must adhere to precedent. But not to worry. Alito’s draft assures us that overruling Roe and Casey is a good thing, and will benefit everyone by returning the issue of abortion to “the people’s representatives.”

To drive home the point, Alito likens his draft to Brown v. Board of Education, the landmark case that overturned Plessy v. Ferguson and officially ended segregation in public schools. “Some of our most important constitutional decisions have overruled prior precedents,” he notes, equating his draft to Brown, and Roe and Casey to the dreaded Plessy.

The truth, of course, is the exact opposite. While controversial, Roe and Casey were decided squarely in line with prior Supreme Court precedents that extended the concept of liberty under the Fourteenth Amendment to privacy interests like the right to interracial marriage (Loving v. Virginia, 1967), the right to obtain contraceptives (Griswold v. Connecticut, 1965), and the right to not be sterilized without consent (Skinner v. Oklahoma, 1942).

Nor is it true that abortion at all stages was mostly illegal before Roe. As University of Illinois history professor Leslie J. Reagan explained in her definitive study, When Abortion Was a Crime, “During the eighteenth and early nineteenth centuries, abortion of early pregnancy was legal under common law. Abortions were illegal only after ‘quickening,’ the point at which a pregnant woman could feel the movements of the fetus (approximately the fourth month of pregnancy).”

The belief that life starts at conception, one of the primary arguments on the religious right for blanket, no-exception abortion bans, is also relatively new. “At conception and the earliest stage of pregnancy before quickening, no one believed that a human life existed; not even the Catholic Church took this view,” Reagan wrote. “Rather, the popular ethic regarding abortion and common law were grounded in the female experience of their own bodies.”

Alito fails to mention that the impetus to outlaw abortion began only in the 1850s, spurred by the fledgling American Medical Association’s desire to gain control over the practice of medicine and curtail the work of midwives and homeopaths.

The AMA’s crusade, Reagan instructed, was a form of backlash against the rising aspirations of women and thus “antifeminist at its core.”

In a Los Angeles Times op-ed published on May 4, entitled “The Supreme Court Flunks Abortion History,” Aaron Tang, a law professor at the University of California, Davis, delivered a smackdown of Alito’s scholarship.

“Our nation’s history actually does support a right to abortion for much of early pregnancy,” Tang advised. “The best evidence is that only sixteen of thirty-seven states banned pre-quickening abortions when the Fourteenth Amendment was ratified. In the other twenty-one states, abortion remained perfectly lawful through roughly sixteen weeks of pregnancy.”

So much for fairness and accuracy.

If Alito’s draft becomes final, abortion will likely become illegal in twenty-six states, according to the Guttmacher Institute. These include states that enacted laws before Roe that have never been removed from the books; states with so-called “trigger” laws that will take effect automatically when Roe is overruled; and states with constitutional bans that will be activated and enforced post-Roe.

The new abortion bans will also spark criminal prosecutions. According to an analysis by Forbes, once Roe is jettisoned, performing an abortion will become a felony in more than a dozen states.

While most prosecutions likely will be directed at doctors and clinics, the National Association of Criminal Defense Lawyers (NACDL) warned in a comprehensive report last year that state laws defining “personhood” to include fetuses will “expand the reach of criminal liability” for pregnant people who self-induce miscarriages. Just last week, in response to the leak of Alito’s draft opinion, the Louisiana state legislature advanced a bill that if enacted will classify abortion as homicide.

And there is no reason to believe the GOP and the “right-to-life” movement will stop at the state level. In an amicus curiae (“friend of the court”) brief

submitted in the Dobbs case, Princeton University professor Robert George and University of Adelaide professor John Finn argued that “unborn children” are persons from the moment of conception and that Congress has the power to enact legislation protecting the unborn. Alito’s draft cites Gage and Finn’s brief with approval, albeit in a footnote.

In a May 6 interview with USA Today, Senate minority leader Mitch McConnell gave the game away, saying that a national abortion ban would be on the agenda if the Supreme Court overturns Roe.

“[I]f and when the court makes a final decision, I expect everybody will be more definitive,” McConnell said. “But I don’t think it’s much [of a] secret where Senator Republicans stand on that issue.”

There is already a federal statute that makes the performance of “partial birth abortions” a felony. In 2007, the Supreme Court upheld the statute in Gonzales v. Carhart by a vote of 5-4, with Chief Justice John Roberts, and Justices Clarence Thomas and Alito in the majority.

All it would take for a more comprehensive federal ban to take effect is a Republican-controlled Senate that carves out an exception to the filibuster rule for fetal personhood legislation, and the reelection of Donald Trump or the installation of another ultra-right candidate to sign the legislation into law.

And then there is the domino-effect that overturning Roe will have on other privacy issues. With Roe gone, marriage equality and LGBTQ+ rights will likely be the next to fall. If these federal protections are stripped away, states which still have draconian sodomy laws on the books could begin enforcing them once more. After decades of condemning liberal justices for lacking impartiality and engaging in “judicial activism,” the conservative supermajority dominating the Supreme Court appears more than willing to use judicial power to remake the United States into a white Christian nationalist country.

But the true majority—Americans who support abortion rights and democracy—are not powerless. We have the numbers and the incentives to mobilize in the streets and at the ballot box to overwhelm the radical right and force passage of state and federal legislation in support of civil liberties and civil rights.

It will take time, but if necessary, we can even win legislation to expand the number of Justices on the Supreme Court to bring the court in line with the needs and values of the twenty-first century. We only have to realize our power and commit ourselves to using it.

As I have written before, the U.S. Supreme Court is facing a crisis of legitimacy driven by a growing public perception that the court is a political institution dominated by conservative activists masquerading as impartial guardians of the Constitution.

No single justice is more responsible for this crisis than Clarence Thomas. Scandal and controversy have plagued Thomas since he was credibly accused of sexual harassment by law professor Anita Hill during his 1991 Senate confirmation hearing. Since then, he has carved out a well-deserved reputation as the court’s most rightwing jurist. Thomas is also an ardent proponent of “originalism”—the legal philosophy that holds that the Constitution should be understood today as closely as possible to the way it was understood when it was written in the eighteenth century.

In 1993, according to The New York Times, Thomas told two of his law clerks that he planned to serve on the court until 2034, and until then would continue to make the lives of liberals “miserable.”

On January 19 of this year, Thomas attempted to make good on that pledge in the case of Trump v. Thompson. By a margin of 8-1, the court rejected a lawsuit filed by the former President to block the National Archives from releasing White House documents sought by the House Select Committee investigating the January 6 insurrection at the U.S. Capitol. Thomas was alone in his dissent.

Were it not for some dogged sleuthing by investigative journalists Bob Woodward and Robert Costa, Thomas’s dissent might have been forgotten amid the many other conservative votes he has registered during his lengthy career. Writing in The Washington Post on March 24, Woodward and Costa reported that Thomas’s wife, Virginia (who goes by the nickname Ginni), had texted White House Chief of Staff Mark Meadows twenty-nine times between early November 2020 and mid-January 2021, urging Meadows to push to overturn of the results of the presidential election.

The text messages have sparked demands from Democrats and legal commentators that Thomas recuse himself from all future cases related to the insurrection and any other litigation surrounding the 2020 election.

So far, Thomas has not publicly addressed his wife’s texts, nor has he given any indication that he will heed calls to not participate in such matters.

This is by no means the first time Justice Thomas has faced recusal demands as a result of his wife’s aggressive political activism and his own intransigence. In 2011, seventy-four House Democrats signed a letter calling for Thomas to stand aside from any appeals involving the Affordable Care Act in light of Ginni Thomas’s record as a highly paid lobbyist working against national health care reform. He declined.

Thomas also failed to recuse himself from the court’s Muslim travel ban ruling in 2018 (Trump v. Hawaii), even though Ginni Thomas reportedly had been paid $200,000 in 2017 and 2018 by a group supporting the ban.

By the fall of 2020, as the election approached, Ginni Thomas’s insider connections to the bases of conservative power expanded. She became a leader in Groundswell, a coalition of hardliners dedicated to fighting progressivism and keeping Donald Trump in office. Parlaying her resume and her marriage to Clarence Thomas, who Trump once described as his “favorite Justice,” she gained extraordinary access to Meadows and the inner circles of the White House.

Although Ginni Thomas has denied trying to influence her husband’s deliberations, her text exchanges with Meadows raise deeply troubling ethical concerns. Among the messages is one she sent to Meadows on November 24, 2020, disclosing that she had discussed the election issue with “my best friend.” While the texts do not identify the friend, this is a term the couple has routinely used to refer to each other over the years.

Given that backdrop, Clarence Thomas’s participation in the Thompson case was entirely improper and outrageous. A federal statute stipulates that “Any justice, judge, or magistrate judge of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.” A subsection of the same statute requires Justices and judges to disqualify themselves when they know that their spouses have any financial “or other interest that could be substantially affected by the outcome of the proceeding.”

The federal statute is similar to laws in place across the country that apply to state-court judges. Like the federal statute, such laws are designed to avoid not only actual instances of judicial bias but also the appearance of bias.

Even if Thomas didn’t know about his wife’s text messages or her admitted attendance at the Stop the Steal demonstration preceding the January 6 storming of the U.S. Capitol, he certainly knew about her activism in general as well as her devotion to Trump. In the view of NYU Law School Professor Stephen Gillers and other prominent legal ethicists interviewed by The New York Times, Thomas had an affirmative duty to inform himself as to her activities. As Gillers put it, Justice Thomas “cannot close his ears and pretend that he’s ignorant. Conscious avoidance of knowledge is knowledge.”

Unfortunately, there is little, if anything, that can be done to bring Thomas to heel. The Constitution provides him with lifetime tenure. Impeachment, however justified, is a pipedream, given the two-thirds Senate majority needed for conviction. Also out of reach, at least for the foreseeable future, are efforts to expand the size of the court or to impose term limits on the justices.

The Supreme Court stands at the pinnacle of the U.S. legal system. Yet its members are free to ignore the federal recusal statute and, unlike every other federal and state court in the nation, our highest court bewilderingly lacks a binding written code of ethics. There is no way to appeal its decisions.

According to a recent Quinnipiac poll, 52 percent of Americans believe Thomas should step down from all 2020 election cases. As more details about the plot to overturn the election are revealed and more related cases reach the court, that percentage is likely to increase.

Maybe someday Thomas will have his reckoning. Let’s just hope that day arrives before 2034, the year he long ago set for his retirement.

If I asked you to name the most important opinion handed down by the U.S. Supreme Court during Earl Warren’s sixteen-year tenure (1953-69) as Chief Justice, you’d probably cite Brown v. Board of Education, the landmark, unanimous ruling that ended legal segregation in public schools.

This article originally appeared on the Progressive.

Warren himself was asked this exact question in a televised interview with the McClatchy News Service that aired on June 25, 1969, two days after he formally stepped down from the bench. Without understating the importance of Brown, he singled out Baker v. Carr, the 1962 decision on reapportionment, redistricting, and gerrymandering that established the doctrine of “one person, one vote.”

As Warren explained:

“I think the reapportionment not only of state legislatures but of representative government in this country is perhaps the most important issue we’ve had before the Supreme Court.

“If everyone in this country has an opportunity to participate in his government on equal terms with everyone else, and can share in electing representatives who will be truly representative of the entire community and not some special interest, then most of the problems that we are confronted with would be solved through the political process rather than through the courts.”

Four years after deciding Baker, the court issued another pivotal decision in South Carolina v. Katzenbach, upholding the constitutionality of the Voting Rights Act of 1965.

Flash forward to the present day, and the Supreme Court has shifted on its axis. Now dominated by conservatives, including three hard-right members nominated by President Donald Trump, the court appears determined to turn back the clock on election law to the early 1950s and undo the last vestiges of Warren’s voting rights legacy.

The court’s latest act of electoral sabotage came in a 5-4 ruling, issued on February 7, that reinstated a new Alabama Congressional map created after the 2020 census for the state’s seven seats in the House of Representatives. Chief Justice John Roberts, the architect of much of the court’s recent voting rights carnage, was so disturbed by the majority’s decision that he joined the court’s three Democratic appointees in dissent.

In January, a three-judge federal district court panel overturned the Alabama map as an illegal “racial gerrymander” in violation of Section 2 of the Voting Rights Act. The section prohibits voting practices and procedures that discriminate on the basis of race, color, or membership in a minority language group. Private parties as well as the federal government can file civil lawsuits to enforce the act.

The new map was challenged by the Alabama chapter of the NAACP and other plaintiffs, who noted that while Black people comprise 27 percent of the state’s residents, the map concentrated one-third of Black residents into a single voting district. The net effect was to create one Black majority voting district while dispersing the rest of the Black population across the state.

In support of their suit, the plaintiffs cited a series of Supreme Court decisions on the Voting Rights Act from the 1980s and 1990s that struck down race-based gerrymanders which weaken the power of minority voters, either by “packing” minority populations into a few districts or by spreading them throughout the state, a practice called “cracking.”

The district court concluded that Alabama’s map, if fairly drawn, would either provide two districts with Black voting majorities or multiple districts “in which Black voters [would] otherwise have an opportunity to elect a representative of their choice.” The judges ordered the state to redraw the map.

At the state of Alabama’s request, the Supreme Court intervened with an emergency “shadow docket” ruling, issuing a stay of the district court’s decision without holding oral arguments or receiving a full briefing. As several academics and journalists have noted, the court’s shadow docket grew exponentially during the Trump presidency, and the trend is continuing.

As with many shadow docket matters, the court’s stay order on the Alabama map is technically temporary in nature, as the case will be taken up for full formal review next term. In the meantime, however, the map will remain in place, giving the state’s Republicans an undeserved advantage in the midterms.

While the court’s final ruling on the Alabama case remains pending, there is little reason to believe it will ultimately invalidate the rigged map. Although Chief Justice Roberts joined the court’s liberals at the shadow docket stage in opposing a stay, he could easily change course when the case is decided on the merits.

Roberts’s overall record on voting rights has been abysmal. He was the author of the 5-4 majority opinion in Shelby County v. Holder (2013), which gutted the Voting Rights Act’s “pre-clearance” provisions that required state and local jurisdictions with histories of discrimination to obtain advance federal approval before implementing changes in voting procedures.

Since then, voter suppression techniques in GOP-controlled states have proliferated at a rate not seen since the Jim Crow era.

In another crippling blow, Roberts wrote the majority opinion in Rucho v. Common Cause (2019), which held that partisan gerrymandering, no matter how extreme, presents a nonjusticiable “political question” beyond the jurisdiction of federal judges. He also joined his Republican soulmates last year in a pair of 6-3 decisions from Arizona that further weakened Section 2 of the Voting Rights Act.

Looking to Roberts to act as a savior on voting rights is a fool’s errand. As Linda Greenhouse wrote in a New York Times guest column on February 9, in reference to the Alabama map ruling, “You know the Rubicon has been crossed when the Supreme Court issues a conservative voting rights order so at odds with settled precedent and without any sense of the moment that Chief Justice John Roberts feels constrained to dissent.”

To appreciate just how far our highest court has fallen, you only need to replay Warren’s McClatchy interview. If Warren were alive today, he would likely be a vocal advocate for court reform. But, alas, his voting rights legacy is looking more and more like a mournful epitaph.

The Supreme Court’s conservative majority has developed a love/hate relationship with Donald Trump. Simply put, the majority loves the disgraced ex-President’s social and political agenda, but hates his inflated claims of executive authority and personal grievance.

The just-announced retirement of Justice Stephen Breyer will do nothing to alter this dynamic or change the court’s balance of power, no matter who succeeds Breyer.

Trump’s most recent personal setback before the high court came in the case of Trump v. Thompson, decided on January 19. By an 8-1 margin, with only Clarence Thomas dissenting, the court rejected Trump’s request to block the release of a trove of White House documents sought by the House select committee investigating the January 6 insurrection at the U.S. Capitol.

The committee, chaired by Representative Bennie Thompson, Democrat of Massachusetts, requested the documents from the National Archives (where they have been stored pursuant to the Presidential Records Act following Trump’s departure from the Oval Office). The documents concern Trump’s actions on January 6 and his possible role in the insurrection. They include such items as memos, emails, diaries, schedules, and visitor and call logs—all of which Trump has sought to keep secret.

Conservative lawyer George Conway, writing in The Washington Post, calls the court’s decision “a brutal and personally stinging loss for Trump. And the arguments his own lawyers advanced may have made the defeat worse.”

Trump’s attorneys argued that even though Trump is no longer President, he retains the right to invoke executive privilege to prevent the disclosure of documents created while he was in office. After losing in the Court of Appeals for the District of Columbia, the lawyers asked the Supreme Court to step in, undeterred by President Joe Biden’s decision as the incumbent President to waive the privilege for most of the documents at issue.

The Supreme Court rebuffed Trump’s claims without hearing oral arguments in an unsigned one-paragraph per curiam (“by the court”) order. Trump’s contentions were so weak that the court apparently saw no need for an extended discussion. Instead, it simply endorsed the conclusion of the Court of Appeals, which had held that Trump’s claims “would have failed even if he were the incumbent,” and that “his status as a former President necessarily made no difference to the court’s decision.”

Within hours of the Supreme Court’s ruling, the National Archives began turning over documents to the select committee. Although the committee has not yet released the files, Politico reported that they include a draft executive order that, if issued, would have directed the Defense Department to seize voting machines across the country because of “international and foreign interference in the November 3, 2020, election.” The order also called for the appointment of a special counsel to “oversee the operation.”

The Thompson ruling wasn’t the first time Trump’s hubris resulted in embarrassment before the nation’s highest tribunal. In 2020, he lost his claims of “absolute immunity” from state criminal investigations in Trump v. Vance. And last year, the court turned away the last of the Trump campaign’s challenges to the results of the presidential election.

Going forward, Thompson will make it much more difficult for anyone to obstruct the committee’s work with meritless defenses of executive privilege. Steve Bannon, Mark Meadows, Ivanka Trump, and their confederates and cohorts had best take heed.

But Trump’s loss by no means signals a general turnaround in the direction of the Supreme Court. The six conservatives who now control the court remain committed to the legal philosophy of “originalism,” as popularized by the late Justice Antonin Scalia. It asserts that the answers to contemporary questions about such matters as voting rights, gerrymandering, union organizing, the death penalty, and campaign finance are to be found solely in the supposed “original” meaning Founding Fathers intended when writing the Constitution in the late eighteenth century.

This court session promises more of the same. If anything, the court is likely to veer even more sharply to the right. Thus far, the panel has refused to block Texas’s draconian new abortion law, and has invalidated the Biden Administration’s COVID-19 “vaccination-or-testing” requirement for the employees of large corporations.

Before the court’s current term concludes, the conservative majority will hand down opinions that likely will overturn or gut Roe v. Wade (Dobbs v. Jackson Women’s Health Organization), weaken local and state gun-control measures (New York State Rifle & Pistol Association, Inc. v. Bruen), potentially cripple the Environmental Protection Act (West Virginia v. EPA), and do away with what remains of race-based affirmative action programs at colleges and universities (Students for Fair Admissions v. Harvard University and Students for Fair Admissions v. University of North Carolina).

Trump lost in Thompson, as he did in Vance and in the election conspiracy challenges filed on his behalf. But it is not because the Supreme Court has suddenly gone squishy liberal, but because his positions were so extreme no rational court could accept them.

Trump ran for office on the promise of remaking the Supreme Court and the lower federal bench. Sadly, he made good on that promise, placing three young and doctrinaire judicial activists on the court. Even allowing for the occasional blip like Thompson, the Supreme Court has delivered for Trump and will continue to do so—to poach one of his own catch phrases—“like never before.”

This story was first published at The Progressive.

Since John Roberts’s appointment as Chief Justice in 2005, the U.S. Supreme Court has handed down a spate of transformational ultra-right decisions on a dizzying array of subjects, including voting rights, gerrymandering, union organizing, the death penalty, qualified immunity for police, gun control, campaign finance, and most recently, abortion.

With their solid 6-3 majority, the court’s conservatives are emboldened to wreak even more Constitutional havoc in the future. They are armed with the power of judicial review, which permits them to overturn popular legislation and prior precedent decisions at will. And with only occasional lapses, they adhere to the doctrinaire legal philosophy of “originalism,” which asserts that the answers to contemporary questions are to be found by guessing what the Constitution’s language meant to its Framers and readers in the late eighteenth century.

Though the Democrats are partly responsible for allowing the court to be taken over by the right, this is not the time for recriminations. Liberals and progressives have little choice but to move forward with efforts to reclaim the court and bring it in line with the values and needs of a multicultural democracy in the twenty-first century.

The most efficient way to counter the current rightwing domination of the court is to expand the number of justices, placing more liberals and moderates on the bench. Even if there is little prospect of this happening any time soon, the idea of court expansion as a political remedy to rein in an unchecked judiciary is nothing new; it’s actually an old idea that has taken on new urgency.

The issue of court expansion is addressed in the 294-page draft final report of the Presidential Commission on the Supreme Court of the United States, which was released on December 7. Established by President Joe Biden in response to the rising public clamor for court reform, the commission consists of thirty-four Constitutional law experts—including both liberals and conservatives.

Unsurprisingly, given the scope of its charge and its composition, the commission failed to make any recommendations on court expansion, or on implementing any other major structural changes to the court. Nonetheless, the report contains a surprisingly readable account of the Supreme Court’s history and offers a useful summary of past efforts to alter the court’s size.

As the report notes, the court’s size isn’t set by the Constitution; it’s set by Congress, pursuant to Article III, section 1 of the Constitution.

The Judiciary Act of 1789 established a six-member court, consisting of one Chief Justice and five Associate Justices. Throughout the nineteenth century, Congress changed the court’s composition six times, expanding or contracting the court, as the report explains, “for both institutional and political reasons.”

In 1801, John Adams and the Federalists, with only weeks left in power, reduced the number of justices to five in response to the election of Thomas Jefferson, a Democratic Republican. The following year, the new Democratic Republican Congress reversed the move and restored the court to six members. In 1807, Congress expanded the panel to seven justices, and in 1837, the number was increased to nine.

Echoing some of today’s controversies, the report devotes considerable attention to the intense conflicts between President Andrew Jackson and Chief Justice John Marshall over the scope of the Supreme Court’s authority. In 1837, two years after Marshall’s death, the court was enlarged to nine justices in one of Jackson’s last acts before leaving office.

All told, during his eight years in office, Jackson appointed six Justices. Foremost among them was Roger Taney, who authored the majority opinion in the infamous Dred Scott case of 1857 that held Americans of African descent could never be citizens. The Dred Scott decision was one of the factors that precipitated the Civil War.

The report also addresses the rapid series of changes to the size of the court that occurred both during and immediately after the Civil War, as the number of Justices grew to ten in 1863, contracted to seven in 1866, and returned to nine in 1869.

The court has remained at nine members ever since, withstanding both President Franklin Delano Roosevelt’s “court-packing” plan of 1937 that was crafted to blunt the court’s initial opposition to the New Deal, and rightwing calls to restrict the court’s power in reaction to the civils rights movement of the 1950s and 1960s.

There is nothing sacrosanct, however, about the number nine.

In a Washington Post op-ed published on December 9, Harvard Law School Professor Laurence H. Tribe and retired federal district court judge Nancy Gertner, both of whom served on the Biden Commission, explained that they once opposed court expansion but came to change their views.

“We now believe that Congress must expand the size of the Supreme Court and do so as soon as possible,” Tribe and Gertner wrote. “We did not come to this conclusion lightly.”

Tribe and Gertner cite three basic reasons for their shift in position:

“[F]irst, the dubious legitimacy of the way some justices [referring to Neil Gorsuch and Amy Coney Barrett] were appointed; second, what Justice Sonia Sotomayor rightly called the ‘stench’ of politics hovering over this court’s deliberations about the most contentious issues; and third, the anti-democratic, anti-egalitarian direction of this court’s decisions about matters such as voting rights, gerrymandering, and the corrupting effects of dark money.”

“Those judicial decisions haven’t been just wrong; they put the court—and, more important, our entire system of government—on a one-way trip from a defective but still hopeful democracy toward a system in which the few corruptly govern the many, something between autocracy and oligarchy. Instead of serving as a guardrail against going over that cliff, our Supreme Court has become an all-too-willing accomplice in that disaster.”

In April, the Judiciary Act of 2021 was introduced in both houses of Congress. If enacted, it would expand the court to thirteen justices. The House version of the bill currently has forty-three co-sponsors, and their ranks can only be expected to grow as the court’s conservatives do more damage to what remains of our democracy.

We can do our part to support the legislation by making court expansion a central focus of our wider political discourse as well as a campaign issue in the 2022 midterms and again in 2024—or however long it takes to get the job done.

This story was first published at The Progressive.

For supporters of abortion rights, the stakes could not be higher than they are this term at U.S. Supreme Court. With conservatives holding a 6-3 advantage on the bench, Roe v. Wade is on the chopping block.

Should Roe fall, abortion will lose its status as a federally protected Constitutional right. Even worse, abortion could become a crime, as it was in nearly every state before Roe was decided in 1973.

It's even possible—if Republicans capture the House, the Senate, and the presidency in 2024—that abortion could become a federal felony. Pregnant people, doctors, nurses, and other "aiders and abettors" could be prosecuted and go to jail for conduct that has been perfectly legal for the last four decades.

This is not hyperbolic.

The Supreme Court is considering three high-profile abortion cases this session that pose existential threats to Roe. Two of the cases—United States v. Texas and Whole Woman's Health v. Jackson—are from Texas and were argued on November 1. The other, Mississippi's Dobbs v. Jackson Women's Health Organization, is slated for oral arguments on December 1.

The Texas cases deal with a draconian abortion statute that took effect in September. The new law bans abortions once a fetal heartbeat can be detected, usually six weeks after fertilization. In a cynical twist designed to evade federal court review, the law empowers private individuals rather than the state to bring civil actions to enforce the ban.

After initially declining to hear the Texas cases, the Supreme Court agreed to review them on a limited procedural basis to determine whether federal judges have the legal authority to stop state court judges and private parties from enforcing the law. Though the Supreme Court is not expected to directly address the continued constitutionality of Roe, a victory for the state would leave the law in place and effectively overturn Roe in Texas. A victory for Texas would also encourage copycat legislation elsewhere.

Dobbs, by contrast, involves a direct substantive challenge to Roe. The case will test the Constitutionality of a Mississippi law enacted in 2018 that bans abortions after the fifteenth week of pregnancy, with exceptions for medical emergencies and severe fetal abnormalities. No exceptions are made for pregnancies resulting from rape and incest.

In a brief filed in July, Mississippi asked the court to jettison Roe. The state has been joined in that request by a slew of groups from the ultra-right that have filed amicus curiae ("friends of the court") briefs.

With Roe out of the way, anti-abortion laws will proliferate. According to the Guttmacher Institute, twenty-six states are likely to ban abortion if Roe is overruled. These include laws enacted before Roe that have never been removed from the books in Alabama, Arizona, Oklahoma, Arkansas, and other states; so-called "trigger" laws that will take effect automatically in Idaho, Kentucky, North Dakota, and elsewhere if Roe is invalidated; and state constitutional bans that will be activated and enforced in Alabama, Tennessee, and West Virginia.

The abortion bans will also likely spark criminal prosecutions under intense pressure from influential elements of the right-to-life movement. As Heather Lawless, co-founder of the Idaho-based Reliance Center, told National Public Radio last October following the confirmation of Amy Coney Barrett as Ruth Bader Ginsburg's replacement on the Supreme Court: "I don't think abortion should be legal, period. Because abortion at any stage is willfully taking a human life, and I don't think that should be legal—at all."

Though Lawless said she wouldn't want to see abortion patients prosecuted, she advocates holding doctors who perform abortions fully liable. Some anti-abortion hardliners are prepared to go even further.

Catherine Davis, the founder of the Restoration Project in Georgia, told NPR that she wouldn't rule out punishing patients for self-induced abortions. "If she decides to self-abort herself, then she's subjected to the same penalty as the doctor," Davis said, in an apparent reference to techniques such as the "morning-after pill."

Abortions, in her view, should be treated as murder and punished the same way, "up to and including capital punishment."

While Davis's position may be extreme even in right-to-life circles, the prospect of a cascade of post-Roe prosecutions has the criminal defense bar on high alert. Earlier this year, the National Association of Criminal Defense Lawyers (NACDL) released a comprehensive report warning that if Roe is rejected, state laws defining "personhood" to include the unborn "will expand the reach of criminal liability for serious offenses such as homicide, feticide, aggravated assault, and many other crimes."

Such laws, according to the report, already exist in Arkansas, Kentucky, Mississippi, Alabama, and South Carolina.

The report similarly cautions, in a reference to anyone who provides material assistance with abortions, that state and federal conspiracy laws could be used to subject "a wide range of individuals, beyond women seeking abortions and the doctors performing them, to criminal penalties."

Although most post-Roe abortion prosecutions would take place at the state level, some cases could be initiated by the U.S. Justice Department should Republicans regain the levers of federal power in 2024.

In 2003, with largely Republican sponsorship and support, Congress passed and President George W. Bush signed into law the Partial-Birth Abortion Ban Act, making it a federal felony for doctors to perform certain late-term abortions. The Supreme Court upheld the law as constitutional in 2007 in Gonzales v. Carhart by a vote of 5-4.

With Republicans back in control of government, it would only take a party-line vote to carve out an abortion exception to the filibuster rule in the Senate for the enactment of a federal statute criminalizing abortion nationwide.

The fallout from any of these developments would be devastating for all pregnant people, but particularly for people of color and the poor.

The first step in unleashing these dire consequences could be taken by the Supreme Court, which is now dominated by staunch anti-abortion conservatives. We'll know whether Roe will survive when the court releases the final decisions of its current term at the end of June 2022.

Editor's note: A previous version of this story incorrectly described the Guttmacher Institute.

This story was first published at The Progressive.

The legal noose is tightening around Donald Trump's neck. Although we are still far from seeing the former commander-in-chief outfitted in a prison jumpsuit, Trump faces legal jeopardy on a variety of fronts related to his long history of corruption in the private sector and his malfeasance as President. And make no mistake: as Trump runs out of cards to play, the jeopardy becomes less and less of a political game he can spin in his favor. Things are getting serious.

Several recent developments have improved the odds that Trump will be brought to justice.

"If a hit man is hired and he kills somebody, the hit man goes to jail. But not only does the hit man go to jail, but the person who hired them does."

On July 1, the Trump Organization and its former Chief Financial Officer, Allen Weisselberg, were indicted by Manhattan District Attorney Cyrus Vance Jr. for tax fraud, grand larceny, and conspiracy.

While Trump has not yet been charged individually, the indictment refers to an "unindicted co-conspirator" who allegedly "agreed to and implemented" Weisselberg's tax evasion scheme. Since little happens in Trump's financial empire without his knowledge and consent, the reference points to Trump, who could well be named as a defendant in the near future by way of an amended indictment.

Attorney General Letitia James has joined Vance's criminal probe, fortifying the courtroom firepower arrayed against Trump. In 2019, James opened a separate civil investigation of Trump's business practices that could result in significant fines and the formal dissolution of the Trump Organization.

In addition, Fulton County, Georgia, District Attorney Fani Willis has convened two grand juries to investigate Trump for pressuring the Georgia Secretary of State to overturn the results of the 2020 election. In March, Willis reportedly hired attorney John Floyd, a nationally recognized authority on racketeering and conspiracy law, to advise her on the probe.

Even if Trump manages to dodge personal liability in New York and Georgia, he will hardly be in the clear. First and foremost, he will find himself squarely in the crosshairs of the House Select Committee to Investigate the January 6 Attack on the United States Capitol. The committee was established to report on the causes and consequences of the insurrection that delayed and nearly prevented Congress from certifying Joe Biden's victory in the Electoral College.

The committee held its first public session on July 27, featuring dramatic testimony from four law enforcement officers (two from the Capitol Police and two from the District of Columbia's Metropolitan Police Department) who defended Congress against the violent mob of MAGA rioters that stormed the Capitol on January 6. Together, they recounted the horror, brutality, and racism of the rampage, laying the blame for the event squarely on Trump and his high-level enablers.

As Capitol Police officer Harry Dunn told the committee: "If a hit man is hired and he kills somebody, the hit man goes to jail. But not only does the hit man go to jail, but the person who hired them does. It was an attack carried out on January 6 and a hit man sent them. I want you to get to the bottom of that."

The select committee is equipped with subpoena power to fulfill Dunn's wishes.

In a July 28 interview with MSNBC's Ari Melber, former Watergate prosecutor Nick Ackerman said he believes the committee will use that power to subpoena and depose Trump, Rudy Giuliani, and Representative Mo Brooks, Republican of Alabama, who revved up the rioters on January 6 in speeches delivered before the assault on the Capitol. The committee, Ackerman said, will piece together a damning "jigsaw puzzle" to explain exactly what occurred on January 6.

"And they don't really have much of a defense here," Ackerman explained. "I think the more [the committee] can dig into the evidence showing that Trump and Rudy Giuliani and Brooks knew these people had come . . . looking for a fight—the more they can show what they were doing [was] inciting this riot. That's not going to fly well with [a] jury [in] the District of Columbia."

According to press reports, the committee is working on its future witness list and preparing to set a new round of hearings. And while it remains to be seen if Trump actually will be summoned, Representative Bennie Thompson, Democrat of Mississippi, the panel's chairman, has publicly stated the committee won't hesitate to call Trump, or officials from the Trump Administration, or members of Congress, such as Minority Leader Kevin McCarthy, Republican of California, and Representative Jim Jordan, Republican of Ohio, who spoke with Trump on January 6. Thompson has also vowed to go to court to enforce any subpoenas that are issued.

With or without Trump's testimony, the committee is likely to amass an unassailable record of the former President's part in inciting the insurrection, setting the stage for a referral to the Department of Justice for possible prosecution.

In an encouraging sign that the DOJ is taking the investigation seriously, the department issued a set of letters late last month to former Trump Administration officials, informing that it would not invoke the doctrine of executive privilege to shield them from testifying before Congress about the Capitol attack.

In a similar vein, the DOJ's Office of Legal Counsel recently published a formal opinion, confirming that the Treasury Department and the Internal Revenue Service "must furnish" Trump's tax returns to the House Ways and Means Committee.

Compounding Trump's legal miseries further is the federal civil suit filed by Representative Eric Swalwell, Democrat of California, against Trump for inciting the insurrection. Swalwell's complaint, which also names Giuliani and Brooks as defendants, seeks both compensatory and punitive monetary damages, as well as a judicial declaration that the trio violated federal law.

In a court filing last week, the DOJ declined to intervene in the case and take on Brooks's defense, as it would in many lawsuits involving federal employees. In reasoning that also applies to Trump, the department explained that Brooks's involvement in the events leading up to the Capitol attack was beyond the scope and duties of his employment.

The DOJ is also moving forward with the prosecution of more than 500 Capitol rioters, some of whom have come to blame Trump for their conduct.

All of this is very bad news for the former President. The key now is to ramp up the pressure and persevere until Trump and the neo-fascist movement he represents are finally held to account.

This story was first published by The Progressive.

The U.S. Supreme Court is not a democratic institution. It consists of nine unelected elite lawyers armed with the tools and techniques of judicial review. They, not "the People," often get the last word on vital questions of social, economic, and even political policy.

Whether this is a smart way to run a democracy has largely been a moot point since the court declared in Marbury v. Madison (1803) that it had the authority to find acts of Congress unconstitutional. The big question today, as always, is whether the court can operate in a politically neutral manner and stay above the partisan fray while discharging its awesome power.

Throughout much of the court's 2020 term, which commenced last October, it may have been plausible to believe that the high tribunal was charting a moderate course, even with six conservative Republican appointees at the helm. In the mainstream press, a middle-of-the-road consensus had emerged that the court was only incrementally moving to the right, and was by no means the threat that some observers had feared when Donald Trump hastily named Amy Coney Barrett to replace the late liberal icon Ruth Bader Ginsburg.

CNN legal analyst Joan Biskupic expressed the consensus well in a column posted online in mid-June, suggesting that rather than cleaving along partisan lines, the court was displaying more of a 3-3-3 alignment, with Chief Justice John Roberts joining Barrett and Brett Kavanaugh to establish a dominant center-right bloc.

The center-right alliance, Biskupic argued, was proving effective in checking the more extreme impulses of the tribunal's most doctrinaire members, Justices Clarence Thomas, Samuel Alito, and Neil Gorsuch.

No more.

Whatever validity the consensus may have had was obliterated on July 1, just before the court broke for summer recess, with the release of a stunning 6-3 majority opinion written by Alito in the case of Brnovich v. Democratic National Committee. The ruling tore another gaping hole in the Voting Rights Act of 1965 and signaled that the panel's rightwing ideologues were fully in control.

At issue in Brnovich was an Arizona statute that criminalizes the collection of mail-in ballots by third parties other than family members and caregivers (a practice called "ballot harvesting"), and a state regulatory policy that requires all in-person ballots, even provisional ones, to be invalidated if they are cast by voters outside of their registered precincts. Democrats contested both measures under Section 2 of the Voting Rights Act, which permits challenges to election practices that discriminate on the basis of race.

Dividing along starkly political lines, Alito and his Republican colleagues handed the state a complete victory. Channeling GOP post-election talking points about nonexistent voter fraud almost word for word, Alito wrote that Arizona was justified in imposing the measures because of its "strong and entirely legitimate . . . interest in preventing election fraud," which, he asserted, "can affect the outcome of a close election" and "undermine public confidence in the fairness of elections."

"The Brnovich opinion," says Erwin Chemerinsky, dean of the law school at the University of California, Berkeley, "will greatly weaken the Voting Rights Act."

The opinion is especially bad when considered in context. "Eight years ago, in Shelby County v. Holder," Chemerinsky explains, "the court nullified provisions of the act [found in Sections 4 and 5] that required jurisdictions with a history of racial discrimination to obtain pre-approval" of changes to election procedures from either the Justice Department or a three-judge panel sitting in Washington, D.C.

"Had those preclearance provisions remained intact, many of the new suppression laws we're seeing in Georgia and elsewhere would never have been implemented," Chemerinsky says. "Now, the Supreme Court has made it harder for the U.S. Attorney General or others to sue the states under Section 2 when they pass laws that have a discriminatory impact on minority voters."

The court also handed down another ideologically tinged decision on July 1 with a 6-3 majority opinion written by Roberts in Americans for Prosperity Foundation v. Bonta. The decision struck down a California regulation that requires registered charities and nonprofits to disclose the identities of major donors (those contributing more than $5,000). Americans for Prosperity is a tax-exempt organization long linked to the Koch brothers. Critics of the decision charge that it will open the door to more "dark money" in elections.

The damage caused by the Roberts Court to democratic norms and values runs deep. Harvard Law School professor Michael Klarman summed up the panel's cumulative record under Roberts's stewardship in an essay published last February in The Atlantic:

"With their majority on the court, the Republican Justices have undermined labor unions, unleashed money in politics, protected corporations from class-action litigation and punitive-damage awards, curbed antitrust law, eroded the Constitutional right to abortion, invalidated gun-control measures, struck down voluntary efforts by school boards to achieve integration through race-conscious means, and threatened to abolish race-based affirmative action." (See sidebar for some of the Roberts Court's worst rulings.)

Klarman's assessment raises another crucial question: What, if anything, can be done to reverse the high court's lurch to the right?

In his article, Klarman called for expanding the number of Justices from nine to thirteen, with the four newcomers to be appointed by President Joe Biden while the Democrats control the Senate, albeit by the slimmest of margins. Such a move would create a center-left court that in Klarman's view would match the center-left orientation of the country as a whole.

Klarman sits on the advisory board of the progressive advocacy group Take Back the Court, founded in 2018 by San Francisco State University professor Aaron Belkin. The board is co-chaired by Harvard Law School professor Mark Tushnet and Color of Change board of directors chair Heather McGhee. It also includes CNN host W. Kamau Bell, former Federal Election Commission chair Ann Ravel, and Yale Law professor Samuel Moyn.

"The Supreme Court is broken," says Belkin, expounding on his organization's origin and purpose. "The court was stolen in 2016 when a vacancy opened after Antonin Scalia died, and Mitch McConnell and Senate Republicans would not allow President Obama to fill that vacancy with Merrick Garland."

Surveying the state of the nation in the aftermath of Trump's three high-court appointments and the chaos created by the forty-fifth President, he says, "American democracy is hanging by a thread."

And the Supreme Court, he argues, is a big part of the problem.

"For years now, the court has been sabotaging democracy on behalf of big corporations, the Republican Party, and the party's donor class," Belkin says. "With the retirement of Justice Anthony Kennedy in 2018, the entire regulatory administrative state has been placed at risk, throwing everything progressives care about, including the need to respond to the existential crisis of climate change, into jeopardy."

These are long-term trends, he stresses, rejecting suggestions that big changes at the court are unwarranted because of a handful of recent rulings that uphold LGBTQ+ rights, preserve Obamacare, and reject efforts to overturn the results of the 2020 presidential election. In the final days of this past term, the court also ruled in favor of the off-campus free speech rights of public high school students and sided with college athletes in a dispute with the NCAA that could eventually lead to athletes getting paid for their skills and hard work.

Belkin dismisses the idea that the court is best described as having a 3-3-3 split and a generally moderate orientation. "That's bullshit," he counters. "Even the most conservative court sometimes issues progressive rulings. But this remains an exceedingly pro-business court."

Indeed, a study released by the D.C.-based Constitutional Accountability Center in early July found that corporate interests prevailed in 83 percent of business-related cases this past term. Says Belkin, "The court is doing the same thing today that it's been doing for a generation, which is rigging the system and compromising democracy on behalf of the GOP."

Belkin understands the uphill nature of the fight to expand the court, but he's used to uphill battles. He was a leader in the gay rights campaign to overturn the military's "Don't Ask, Don't Tell" policy, a struggle that took more than ten years to succeed.

"When we started Take Back," he says, "hardly anyone was talking about court expansion." The issue, in fact, had been largely dormant since Franklin Delano Roosevelt's failed "court-packing" plan of 1937.

That's no longer true. In June 2020, Take Back the Court signed an open letter urging court expansion together with eight other left-liberal groups, including the Sunrise Movement, the Progressive Change Institute, Friends of the Earth, and 350.org. Since then, according to Belkin, the number of organizations calling for court expansion has swelled to more than fifty.

One of those organizations is Demand Justice, established in 2018 by communications specialist Brian Fallon, the group's executive director, and attorney Christopher Kang, who holds the title of chief counsel. Both are veteran political hands. Fallon served as Hillary Clinton's national press secretary during the 2016 presidential race. Kang spent nearly seven years in the Obama White House as a deputy counsel and adviser on legislative affairs.

"The first and foremost change we need to see," says Kang, "is court expansion to restore balance and legitimacy to the court. We need to fight for a court that stands for justice and equality" for all Americans.

Technically, court expansion is a relatively simple and straightforward proposition. The number of Supreme Court justices isn't set by the Constitution. It's set by Congress, which has changed the size of the court seven times, dating back to the Judiciary Act of 1789.

Over the decades, the number has varied from five to ten, when the panel was last expanded in 1863. The court was reduced to nine members in 1869, and has remained at nine ever since.

"Expansion is clearly legal, requires no Constitutional amendment, and is the fastest way to restore balance to the court," Kang maintains.

The biggest obstacle to expansion is political, and it's a big one. For the court to be enlarged, legislation would have to clear both houses of Congress, and overcome a Republican-led filibuster in the Senate. But with conservative Democratic Senators Joe Manchin of West Virginia and Kyrsten Sinema of Arizona on record as opposing changes to the filibuster rule in the upper chamber, the prospects for expansion are slim.

Still, progress is being made. Court expansion became a hot topic during the 2020 presidential race, and some leading Democrats have taken up the cause, backing legislation to accomplish the objective.

Both Belkin and Kang were on hand for a press conference in April on the steps of the Supreme Court convened to announce the introduction of the Judiciary Act of 2021 in both the House and Senate. The bill calls for four Justices to be added to the court. It currently has twenty-seven House co-sponsors, including Judiciary Committee chair Jerry Nadler of New York and leading progressives including Alexandria Ocasio-Cortez of New York, Rashida Tlaib of Michigan, and Sheila Jackson Lee of Texas.

However, neither House Speaker Nancy Pelosi nor Senate Majority Leader Chuck Schumer has come out in favor of the measure. Nor has President Biden.

Biden has instead appointed a thirty-six-member bipartisan commission, consisting largely of law professors drawn from both ends of the political spectrum, to study the issue of expansion. The commission held its first public session in May, and is expected to consider other court-reform ideas as well, such as imposing term limits on the tenure of the Justices; drafting an ethics code for the court (which is currently the only federal judicial body not bound by the Code of Conduct for U.S. Judges); and restricting the court's so-called shadow docket.

The "shadow docket" refers to the growing list of emergency orders the court has issued in recent terms without oral argument or full briefing. Such orders have been used to overturn lower-court rulings in a variety of contexts, permitting the court to quickly lift stays of execution in death penalty cases, and block state-imposed COVID-19 lockdown procedures.

Belkin and Kang have little faith in the commission, which Kang calls "unnecessary" and Belkin lambasts as a "garbage-in-and-garbage-out head fake" that will "waste time and run out the clock when action is urgently needed."

Meanwhile, as they agitate for expansion, Belkin, Kang, and others are urging Justice Stephen Breyer to resign, which would allow Biden to fulfill his campaign pledge to appoint a Black woman to the court. Breyer, who has been on the court since 1994, will turn eighty-three years old in August.

On April 9, Demand Justice hired a billboard truck to circle Capitol Hill, bearing the message "Breyer, Retire" in neon green lettering. The event, says Kang, was scheduled to coincide with the anniversary of the late Justice John Paul Stevens's retirement announcement in 2010.

In June, Demand Justice followed up the truck deployment with a full-page ad in Politico calling on Breyer to step down, and an ad with the same exhortation in The New York Times signed by eighteen Constitutional law scholars, among them Belkin and Chemerinsky.

Thus far, however, Breyer has given no hint of leaving. In a speech at Harvard in April, he also came out against court expansion, arguing that such a move would further erode public trust in the courts.

Breyer's position has disappointed many reform advocates. "If Justice Breyer wants someone with his values and views to take his place," says Chemerinsky, "he needs to sit down with the Democratic President and Democrats in the Senate."

In 2014, Chemerinsky urged Ginsburg to resign, but to no avail. "She took great offense," he recalls. "She gambled and we lost. I don't want to see Justice Breyer take that same gamble only to lose again."

Returning to the subject of expansion, Chemerinsky offers a grim warning: "Amy Coney Barrett was forty-eight when she was sworn in. If she stays on the court until she's eighty-seven, the same age when Justice Ginsburg died, she'll be a Justice until the year 2059. It is also likely that other conservatives currently on the court will be with her for another decade or more. So, unless we agree to accept a very conservative court for a long time to come, I don't see any solution but court expansion."

As unattainable as that goal may seem at the moment, the expansion movement is likely to get louder and larger in the future. "Every time the court comes out with an extreme decision, it makes the argument on expansion and rebalancing for us," says Kang.

Next term, Kang says, could prove to be the turning point for the movement, as the court is scheduled to hear cases on abortion, gun control, and possibly affirmative action—all hot-button subjects that will place the court directly in the political crosshairs heading into the 2022 elections and beyond.

If Democrats and progressives don't move the needle on court reform, they will be at least partly responsible for the failure. "The right wing in this country has had a leg up on court packing for a generation," says University of Colorado law professor Paul Campos, who has endorsed the call for Breyer's resignation and also supports expansion. "They've been laser-focused. Much of the left still subscribes to the delusion that the courts are nonpartisan and neutral."

Belkin, for his part, pledges there will be no retreat on the court-reform front. "If someone steals your wallet," he says, "you don't walk away. You take it back." The same, he reminds us, applies to democracy.

This story was first published at The Progressive.

The United States is locked and loaded. This nation has more guns than people and, not surprisingly, an appalling level of gun violence.

The gun homicide rate in the United States is nearly eight times higher than the rate in Canada, and a whopping 100 times higher than in Britain. This year is shaping up to be particularly horrific. As of July 10, the United States had recorded more than 23,200 deaths from firearms, counting both suicides and unlawful killings, according to the Washington, D.C.-based Gun Violence Archive. We also have had more than 340 mass shootings (defined as an event involving four or more victims).

In any sane democracy, one might expect the highest court in the land to step in and do something to uphold sensible gun-control regulations when given the opportunity. But in fact, our Supreme Court is poised to do just the opposite in a case it will hear next fall.

The case is New York State Pistol Association v. Corlett. It was brought by two individuals and the state affiliate of the National Rifle Association to overturn a New York law that places strict limits on the issuance of concealed weapons permits.

Under New York's regulatory scheme, people seeking such permits are required to demonstrate a special need for protection—"proper cause" in the words of the statute—to qualify. The NRA contends the law violates the Second Amendment. It wants even more guns on our streets and in our communities.

After losing in the lower courts, the plaintiffs appealed to the Supreme Court, where they are considered likely to prevail. With the addition of three Trump appointees—Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett—conservatives now hold a solid 6-3 majority on our most powerful judicial body. No longer constrained by the need for caution and compromise, they are set to dramatically extend gun rights under the Second Amendment.

Should the New York statute be declared unconstitutional, similar measures in California, New Jersey, Delaware, Hawaii, Maryland, Massachusetts, Connecticut, and elsewhere could also fall, with dire and deadly consequences for public safety.

It's worth remembering, as we prepare for the onslaught, that the Supreme Court wasn't always a friendly venue for the NRA and the gun-rights lobby. To the contrary, prior to the court's landmark 2008 ruling in District of Columbia v. Heller, the great weight of academic scholarship as well as the court's 1939 decision in United States v. Miller had construed the Second Amendment, in keeping with the actual debates of the Constitutional Convention, as protecting gun ownership only in connection with service in long-since antiquated state militias.

Heller stood the prior consensus on its head, courtesy of the controversial 5-4 majority opinion in the case authored by the conservative fanatic Antonin Scalia. Scalia's perspective emerged victorious, but not without an intense struggle inside the court. As Justice John Paul Stevens, joined by three of his colleagues, wrote in dissent:

The Second Amendment was adopted to protect the right of the people of each of the several States to maintain a well-regulated militia. It was a response to concerns raised during the ratification of the Constitution that the power of Congress to disarm the state militias and create a national standing army posed an intolerable threat to the sovereignty of the several States. Neither the text of the Amendment nor the arguments advanced by its proponents evidenced the slightest interest in limiting any legislature's authority to regulate private civilian uses of firearms.

In 2010, the court issued another 5-4 decision in McDonald v. Chicago, which extended Heller, holding that the individual right to bear arms is "incorporated" by the Fourteenth Amendment's due process clause and is therefore applicable to the states and local governments. The Second Amendment, as interpreted by Scalia, thus became the law of the land. The amendment has since been elevated in rightwing circles to the status of holy writ.

Both Scalia and Stevens have since passed, but the clashing views they espoused on the Second Amendment have endured, even as the United States careens from one blood-stained catastrophe to the next, from the March 16 spa shootings in Atlanta, Georgia, which claimed eight lives; to the May 26 slayings in San Jose, California, in which ten people died; and the July 4 incident in Toledo, Ohio, in which one person was killed and eleven others were wounded.

Although Heller and McDonald were the products of extreme rightwing judicial activism, they were technically limited in scope, as they dealt with the right to keep guns in the home. Ever since those cases were decided, however, gun-rights groups have worked to bring a new test case to the Supreme Court to extend the right to bear arms beyond the home. They almost succeeded last year in another case from New York, but that appeal was ultimately dismissed.

Now, they have another vehicle in Corlett, which could well remove the last remaining judicial guardrails on the Second Amendment.

Woe to us all if that happens.

This story was first published in The Progressive.

Don't be fooled by the Supreme Court's rejection of former President Donald Trump's baseless challenges to the results of the 2020 election. The high tribunal is no friend of liberals and progressives.

With the addition of three Trump appointees—Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett—conservatives now hold a solid 6-3 majority on the nation's most powerful judicial body. No longer constrained by the need for compromise and caution, they are poised to drive U.S. law dramatically to the right.

By the time the court concludes its current term at the end of June, it will hand down decisions that could gut Obamacare, undermine the Voting Rights Act, elevate "religious liberty" interests above other Constitutional rights, and deal organized labor another major setback.

And the potential damage won't stop there. Next term, which begins in October, the court will pass judgment not only on Mississippi's draconian abortion law, but also on a new and far-reaching Second Amendment appeal from New York.

Here's a closer look at the key cases.

Health care:

All eyes are on California v. Texas, the latest assault on the Affordable Care Act (ACA).

As originally enacted, the "individual mandate" in the ACA required most people to obtain health insurance or pay a monetary penalty. In 2012, the Supreme Court upheld the mandate as a proper exercise of Congress's power to levy taxes.

In 2017, however, Congress got rid of the penalty as part of the Trump Administration's outrageously pro-corporate tax reform legislation. Although Congress did not explicitly repeal the mandate and left the rest of the ACA intact (remember John McCain's famous thumbs-down vote on the Senate floor?), a coalition of largely GOP-controlled states led by Texas filed a federal lawsuit to declare both the mandate and the entire ACA unconstitutional. District Court Judge Reed O'Connor, a George W. Bush appointee and a Federalist Society member who may just be the most reactionary jurist in the country, agreed, and issued a sweeping ruling that, if upheld, would overturn the entire ACA.

Urged by California and a group of largely Democratic-led states, the Supreme Court opted to review the case, and conducted oral arguments in November. If the court affirms Reed's decision and strikes down the entire ACA, it will commit an act of judicial barbarism. Should the court topple the mandate but preserve the rest of the act, the result would be less egregious, but would likely fuel additional challenges to other sections of the ACA.

Such a challenge is currently underway in another lawsuit pending before Judge O'Connor that aims to invalidate the act's requirement that birth control, cancer screenings and other forms of preventive care be covered by all health insurance policies.

Voting rights:

Voting rights are another area that have come under threat by SCOTUS's new conservative majority, most recently with a pair of cases from Arizona, Arizona Republican Party v. Democratic National Committee and Brnovich v. Democratic National Committee.

In its 2013 decision in Shelby County v. Holder, the Supreme Court declared the "pre-clearance" requirements of the Voting Rights Act of 1965 (VRA) unconstitutional. The preclearance process, as set forth in sections 4 and 5 of the VRA, was a bulwark against voter suppression, compelling states and local governments with a history of voting discrimination to obtain advance approval from the Department of Justice or a panel of federal judges before instituting changes in election procedures.

Preclearance placed the burden of proof and the costs of initiating litigation on the proponents of voter suppression. Shelby County flipped the burden, forcing defenders of voting rights to file and fund expensive lawsuits against suppression measures under section 2 of the VRA.

The court is now reexamining section 2 in the Arizona cases. Depending on the scope of its ruling, the court could deal another crippling blow to voting rights amid a massive upsurge of voter suppression bills introduced in states across the country in the aftermath of the 2020 elections. Oral arguments were heard in March.

"Religious liberty":

Far-right Christian views of abortion, health care, and sexuality are also getting renewed attention in SCOTUS, as in the case of Fulton v. City of Philadelphia.

Since its 2014 ruling in Burwell v. Hobby Lobby Stores, the Supreme Court's conservatives have been on a mission to uphold the "religious liberty" interests of privately held corporations that exclude birth control coverage from employee health-insurance benefits, religious schools that receive public funding for infrastructure improvements, bakers who refuse to decorate wedding cakes for gay customers, and, more recently, churches that object to COVID-19 lockdown regulations.

In Fulton, Catholic Social Services (CSS), a faith-based foster-care agency that refuses to place children with LGBTQ+ parents, is trying to extend the religious-liberty winning streak. CSS argues it should be exempt from Philadelphia's nondiscrimination policies governing foster-care and adoption placements. If the recent past is any prologue, don't bet against CSS. Oral arguments took place in November.

Labor:

Labor rights and the ability of workers to organize, too, seem ready to take a hit in Cedar Point Nursery v. Hassid.

The Supreme Court under the leadership of Chief Justice John Roberts has never been kind to organized labor. In 2018, the court held in Janus v. AFSCME that the collection of fair-share fees from nonconsenting public employees to finance collective bargaining violated the First Amendment.

In Cedar Point Nursery, the court has been asked to scuttle a 1975 California law championed by Cesar Chavez that allows organizers temporary access to farms and fields to encourage workers to join unions. A group of growers contends the law allows for acts of trespass in violation of their property rights under the Fifth Amendment. Oral arguments were heard in March.

Gun ownership:

In its landmark 2008 opinion in District of Columbia v. Heller, the Supreme Court held for the first time that the Second Amendment protects an individual right to gun ownership.

Heller dealt specifically with the right to keep guns in the home. Since then, gun rights organizations like the NRA have worked to bring another test case to the Supreme Court to extend the right to bear arms beyond the home.

They may have found their vehicle in New York State Pistol Association v. Corlett, which challenges a New York law that places strict limits on the issuance of concealed weapons permits. If the lawsuit succeeds, there will be even more lethal weapons in our communities. The case has been placed on the docket for the court's next term, which commences in October.

Reproductive rights:

Of all the fevered dreams of the American right, nothing approaches the desire to overturn Roe v. Wade and revoke the constitutional right to abortion. The case of Dobbs v. Jackson Women's Health Organization may make the right's dream a reality.

At issue is a 2018 Mississippi law that bans almost all abortions after fifteen weeks, roughly two months earlier than the standard for fetal viability set by Roe. Like Corlett, Dobbs has been placed on next term's calendar. It promises to be a blockbuster.

Predicting the precise outcome of Supreme Court cases is often difficult. It's always possible that the Justices who comprise the court's conservative majority will take a scalpel rather than an axe to their deliberations in the pivotal cases before them. But one thing is certain: The power is now in their hands.