Profoundly Wrong Things

Good people, people who go to church, people who love their families, people who believe they’re good have, throughout the history of this country, done deeply, profoundly wrong things to Black Americans, and they told themselves it was about something else. They told themselves that it was about economics, heritage, party, patriotism. It was never about something else. And today it’s not about something else.

– Tennessee State Senator Charlane Oliver

This week’s featured post is a book review: “Phillips O’Brien’s ‘War and Power’“.

Ongoing stories

  • Trump’s assault on American democracy. With the Virginia Supreme Court throwing out the result of the state’s redistricting referendum, and various southern states taking advantage of the Supreme Court’s invitation to get rid of majority-minority districts, Republicans have now managed to tilt the playing field in their favor. Democrats will have to win the popular vote decisively in November to get a House majority.
  • Climate change. Early signs point to a strong El Nino effect this year, making weather events more extreme.
  • Iran. The pattern continues: Trump keeps announcing peace deals that the Iranians never agreed to. Nothing can change until Trump recognizes that he’s going to wind up with a situation worse than the one at the start of the war. Trump can’t admit that, so the Strait stays closed and gas prices keep rising.
  • Ukraine. Phillips O’Brien’s weekly update discusses Putin’s (realistic) fears that Ukraine could attack his Victory Day parade in Moscow with a long-range drone. Ukraine now hits Russia with more long-range drones than Russia uses against Ukraine. This must be very demoralizing for the Russian public, which (like Americans and Iran) has to wonder why it’s in this war at all.

This week’s developments

This week everybody was talking about the race to disenfranchise southern Blacks

The Virginia Supreme Court tossed out the results of the recent referendum. It’s a 4-3 decision and highly questionable, but there’s not a federal issue that would invite US Supreme Court intervention, even if we had an honest Supreme Court.

The Virginia redistricting was supposed to pick up four Democratic seats in Congress, and briefly looked like it put Democrats narrowly ahead in the redistricting wars. But not only has that been undone, but southern red states are wasting no time in using the Supreme Court’s Callais decision to eliminate majority-Black districts. Tennessee has already eliminated its last such district by dividing the voters of Memphis among three districts that will now all have White Republican majorities.

The new map points to a 9-0 Republican advantage in the Tennessee delegation in the US House.

In one particularly outrageous moment, Democratic members of the Senate Judiciary Committee were kept out of the room where the redistricting proposal was being voted on, resulting in this soon-to-be-iconic photo of Justin Pearson and the sergeant-at-arms.

Louisiana, Alabama, and South Carolina are expected to follow suit this week with their own proposals to end Black representation in Congress.

and Trump’s ballroom

I would hate to work for The Onion these days, because Trump keeps doing things that already sound like over-the-top parodies. Case in point: the proposed White House ballroom.

Originally, it wasn’t supposed to cost the taxpayers anything (other than the cost of whatever favors Trump does for the private donors who funded it, plus the money lost to the tax deductions from these bribes gifts). That was the go-to response whenever anybody objected to Trump exceeding his authority by tearing down the East Wing without approval of Congress or buy-in from the appropriate DC architectural committees: It’s free; be grateful.

But the ballroom kept getting bigger and glitzier. The price tag kept going up. And now We the People are getting the bill: $1 billion tucked into the omnibus bill Republicans are hoping to pass through reconciliation (i.e., without any Democratic votes).

So rich donors aren’t building Trump’s ballroom any more than Mexico has paid for Trump’s wall. At a time when the government is saving money by kicking Americans off food stamps or refusing to subsidize their health insurance, it seems to have plenty of money to fight an unnecessary war and build a monument to Trump’s vanity.

You and I will never see the inside of this ballroom, if it ever gets built. We’ll just pay for it.

The ballroom issue is putting pressure on congressional Republicans, who face a choice between their constituents and the desires of He Who Must Be Obeyed.

One interesting political strategy: Democrats should make them own this. At some point in the reconciliation process, amendments will be possible. If Democrats propose to strip the ballroom funding out of the bill and then back that amendment, only a handful of Republican votes will be needed to pass it. That would let the vast majority of Republicans tell Trump they did their best, but tell their constituents that their bill doesn’t pay for the ballroom.

But what if Democrats abstain on any anti-ballroom amendment? Then Republicans actually have to choose between voters and Their Lord and Master.

and Ka$h Patel

About a month ago, Atlantic reporter Sarah Fitzpatrick used a large number of anonymous sources within the FBI to verify that Director Kash Patel has a drinking problem — something we all had to suspect after seeing the viral video of his alcohol-fueled celebration with the gold-medal-winning US Olympic hockey team.

On multiple occasions in the past year, members of his security detail had difficulty waking Patel because he was seemingly intoxicated, according to information supplied to Justice Department and White House officials. A request for “breaching equipment”—normally used by SWAT and hostage-rescue teams to quickly gain entry into buildings—was made last year because Patel had been unreachable behind locked doors, according to multiple people familiar with the request.

Patel responded with a $250-million defamation lawsuit, which (to begin with) assumes Patel ever had a reputation worth $250 million. Further, he would need to prove not just that the story is false, but that Atlantic either knew or should have known it was false, but published it anyway out of malice.

Simultaneously, Patel abused his position to open a leak investigation into Fitzpatrick’s sources — contradicting the implication that she didn’t really have sources and just made the story up. (It’s reminiscent of an old joke: A reporter writes that the president is a moron. He is prosecuted and goes to jail — not for defamation, but for revealing a state secret.)

Well, Fitzpatrick and The Atlantic are so intimidated that they followed up:

After my story appeared, I heard from people in Patel’s orbit and people he has met at public functions, who told me that it is not unusual for him to travel with a supply of personalized branded bourbon. The bottles bear the imprint of the Kentucky distillery Woodford Reserve, and are engraved with the words “Kash Patel FBI Director,” as well as a rendering of an FBI shield. Surrounding the shield is a band of text featuring Patel’s director title and his favored spelling of his first name: Ka$h. An eagle holds the shield in its talons, along with the number 9, presumably a reference to Patel’s place in the history of FBI directors. In some cases, the 750-milliliter bottles bear Patel’s signature, with “#9” there as well. One such bottle popped up on an online auction site shortly after my story appeared, and The Atlantic later purchased it.

Why would anyone think that Ka$h has a problem, or that alcohol plays too large a role in his life?

and you also might be interested in …

So far, the hantavirus doesn’t seem worth panicking over. Still, it would be nice to have a trustworthy CDC right now.

So far, the rising price of gas, Trump’s illegal tariffs, and other economic woes have not shown up in the job numbers. The April jobs report showed 115K more jobs and the unemployment rate holding steady at 4.3%.

However, it’s worth pointing out that the government is running a $2 trillion annual debt to get those results. As soon as a Democrat becomes president, the national debt will become an existential emergency again.

On the surface, the results of Trump slashing funding to fight AIDS in Africa doesn’t look bad: People previously diagnosed are continuing to get their drugs and are not dying in large numbers. The forward-looking projections are alarming, though. Funding has collapsed for testing, so new people are getting AIDS and spreading it undetected.

For those former Christians who have chosen to worship Trump instead of Jesus, his Doral golf course now provides an idol they can use: a 17-foot gold-leaf statue sitting on a five-foot pedestal.

It’s yet another case where satire has a hard time staying ahead of the news. In the current (and concluding) season of Amazon Prime’s “The Boys”, the series’ villain (the super-powered Homelander) is declaring himself to be God, challenging the loyalty of his Christian nationalist base.

We can only hope that actual MAGA “Christians” will feel similarly challenged. So far they don’t seem to.

Add Rep. Max Miller (R-OH) to the list of current or former Trump staffers with multiple accusations of domestic abuse.

A. R. Moxon raises an interesting point, related to accepting ex-MAGA folks like Marjorie Taylor Greene or Tucker Carlson: It’s one thing to try to meet people where they are. But it will never work to try to meet people where they think they are, when they’re not really there.

If they will only meet us in a place where we will agree with them that their bigotries have justification, their awareness need no expansion, and their conviction needs no progression, then I would say we can’t meet them where they are, because even if we show up where they are, they won’t be there, and if we go to where they think they are, we won’t be where we need to be.

and let’s close with something hopeful

If you’re looking for some reason not to give up, check out LOLGOP’s “The Case of Earl Warren“.

It begins with a provocative set of questions:

[W]hat if good and evil—as concepts, as actual forces in the world—what if they exist? What if people—regular, flawed, embarrassing, complicated people—can actually be moved beyond the programming of their nervous system or algorithm or the combination of the two? What if it’s possible to change your mind, or someone else’s mind, or the collective mind of a country that has been, let’s say, unwell? And maybe, by making the case now, we can shape history in the coming years by beginning a process that might regenerate something we once called conscience?

After that Twilight Zone intro, I can almost hear Rod Serling say: “Case in point: Earl Warren, an ambitious state attorney general with his eye on the governor’s mansion.” In the 1942 campaign, Warren found his issue: Japanese Americans. They were all potential traitors and needed to be put away. So after he ascended to the governorship of California, he enthusiastically went along with the Japanese internment, one of the most shameful things America had done since slavery. Warren was, in other words, xenophobic, hateful, and willing to scapegoat an entire ethnic group of innocent people to advance his political career.

But somehow, by 1954, he had become chief justice of the Supreme Court that outlawed racial segregation in America’s schools. Between 1953 and 1969, the Warren Court established previously unrecognized rights of minority groups both racial and religious. It expanded our notions of free speech and put limits on the ability of police to railroad defendants.

As someone who remembers the last chunk of that era, I can testify: Warren was not just going with the flow here. The Warren Court wasn’t being pulled along by the trends of its era. In many cases it was leading the parade towards human rights. Far from trying to please the crowd, Warren was making himself unpopular. “Impeach Earl Warren” was the right-wing slogan of the day.

While Warren’s conversion probably didn’t happen overnight on Christmas Eve, and I have no reason to believe ghosts were involved, it was a transformation worthy of Dickens.

He became, by many accounts, a genuinely different person. Under different conditions, with different pressures, with enough exposure to the consequences of what he’d helped create—he changed.

I’m not telling you this to make you feel better. I’m not telling you this because the arc of the moral universe bends toward justice and all of that. I’m telling you because the conditions that produced Earl Warren in 1942—the organized fear, the nativist infrastructure, the information environment that made cruelty feel like common sense—those conditions are not so different in their structure from what’s producing the people who scare and exhaust us today.

Which means: they are not a different species. Which means: some of them can be moved. Which means: the work of figuring out how to move them is not naive.

May 11, 2026 – 12:25 pm Categories: Weekly summaries | Comments (2)

Phillips O’Brien’s “War and Power”

Why have predictions about recent wars gone so horribly wrong?

Ukraine. On February 21, 2022 — just three days before Russia began its full-scale invasion of Ukraine — Robert Kagan, a foreign policy specialist who had served in both Republican and Democratic administrations, wrote a forward-looking article in The Washington Post: “What we can expect after Putin’s conquest of Ukraine“. Kagan skipped over the oncoming war entirely, to the post-conquest aftermath, when Ukraine would “cease to exist as an independent entity” and be incorporated into Russia, which would now border four new NATO countries (Poland, Slovakia, Hungary, and Romania) in addition to the previous Estonia and Latvia.

Kagan’s view was a typical expert take on the military situation. Earlier that month, Chairman of the Joint Chiefs, General Mark Milley, told Congress that Kyiv might fall only three days into a full Russian invasion. After the invasion began, President Biden offered to evacuate Ukrainian President Zelensky, to which Zelensky famously replied “I need ammunition, not a ride.“

If there would be any hiccup in this conquest at all, Kagan imagined, it could only be in the form of an insurgency after Russian troops overran the country.

Some analysts today imagine a Ukrainian insurgency sprouting up against Russian domination. Perhaps. But the Ukrainian people cannot be expected to fight a full-spectrum war with whatever they have in their homes. To have any hope against Russian occupation forces, an insurgency will need to be supplied and supported from neighboring countries. Will Poland play that role, with Russian forces directly across the border? Will the Baltics? Or Hungary? And if they do, will the Russians not feel justified in attacking the insurgents’ supply routes, even if they happen to lie in the territory of neighboring NATO members? It is wishful thinking to imagine that this conflict stops with Ukraine.

And yet, four years later, Ukraine is still resisting the Russian invasion — not as an insurgency, but as a nation with a free capital and territory under its control. Zelensky is still president, and still in Kyiv. Who will ultimately prevail in this war is still very much up in the air.

The kind of mistaken certainty military experts expressed prior to the first shots being fired in Ukraine is far from unusual. The United States was supposed to defeat North Vietnam and the Taliban. The Iraq War was expected to end quickly with a more clearly favorable outcome. The Soviet Union was bound to succeed in Afghanistan. China should have had no problem handling Vietnam. The Trump administration expected that the successful decapitation strike the US and Israel mounted against Iran at the end of February would bring the Tehran regime to its knees and end the war quickly.

None of that happened. But why didn’t it? And why did so many learned people think that it would?

Phillips O’Brien’s War and Power is an attempt to answer that question, and to apply that answer to the current rivalry between the US and China. (The book came out last October, before the attack on Iran.)

O’Brien deserves a certain amount of credit right now, because he did not think Russia would roll through Ukraine. In “The New Appeasement“, published in January, 2022, O’Brien wrote:

If we have relearned any lesson over the last two decades, it is that military operations are expensive, usually counterproductive, and with the constant possibility of going dangerously wrong for the richest and most advanced economies, let alone weak ones. … If Russia we actually stupid enough to attack Ukraine, it would tax their military in a way not seen since the Cold War ended.

Why did he see Russia vs. Ukraine differently? War and Power is a study of the factors that make for success in war.

Existing forces. Too often, O’Brien says, analysts focus on the immediately available resources of the two sides: number of soldiers, quantity and quality of equipment, and so on. They take those assets and use them in war games that play out various strategies. Often, those games produce some decisive outcome in a short period of time.

Actual wars, he argues, looking back at the wars of the last two centuries, seldom work out that way. All the nations entering World War I, for example, had war plans that resulted in some quick victory. None of those plans became reality.

What is likely to happen instead is that the war quickly chews up the resources that were available at the beginning: Soldiers get killed or wounded, equipment gets destroyed, and sometimes entire types of equipment (and the tactics that go with them) prove to be obsolete in the face of new realities. (The cavalry charge, for example, had to be abandoned due to machine guns. Horses that would have been the stars of a 19th-century battlefield became mere draft animals, and then lost even that role to trucks.)

So the outcome of a war winds up depending not just (or even primarily) on the resources available at the beginning, but on each side’s ability to replace their loses with new weapons developed to match the challenges the war has posed. This depends on the entire societies involved: How wealthy and technologically sophisticated are they? Do their populations have the will to keep fighting? Does the war engage the innovative abilities of the whole nation? What kind of allies does each side have, and what can those allies provide?

What O’Brien saw in Russia was a corrupt system in which units often did not have the equipment that existed on paper, and the equipment that existed in the real world often did not perform as designed. (My favorite first-days-of-the-war story was of a Ukrainian farmer on his tractor who found a broken-down Russian tank in his field. He offered to tow it back to Russia.) The Russian military had never fought against a determined, sophisticated foe, and had no experience organizing complex operations like the suppression of air defenses. Their command structure did not give lower-level officers the power to change tactics that weren’t working. Putin himself lived (and still lives) in an informational bubble, making decisions based on the facts that people aren’t afraid to tell him.

The result was that much of the Russian advantage in tanks an similar equipment was wasted. Poor logistical planning produced traffic jams on the few roads to Kyiv, making those tanks sitting ducks for air power that Russia was unable to suppress, as well as artillery and attacks from small units of Ukrainians. Ukraine’s army proved to be resourceful and creative. As the war has dragged on, Ukrainians have mastered the new warfare of drones, which pre-war analysts did not see coming. Ukrainians in the field knew what they were fighting for and were willing to do so, while Russians often did not and were not.

So here we are, more than four years later: Russia has taken enormous losses and still is no closer to victory. Putin’s stooge Trump has backed away from supplying the Ukrainians, but Europe has increasingly stepped up. The outcome is still in doubt.

National interest. O’Brien is also critical of geo-political analysis that focuses on “national interest” as an abstraction that denies the significance of choices made by leaders. The field has shied away from what it contemptuously calls the Great Man Theory of History in favor of larger forces that constrain leaders to follow certain paths.

But leadership matters. O’Brien points to the late 19th century, when Great Britain could have felt threatened by the rise of the United States, but chose not to. So leadership of the world crossed the Atlantic without without Americans and Englishmen needing to shoot at each other.

Throughout the world wars, the choices of leaders mattered, for good or ill. For example, in the late 19th century Britain sought an alliance with Germany, but Kaiser Wilhelm rejected the idea, forcing the British to ally with France and Russia instead. How World War I might have played out in a Britain/Germany world — or if it would have happened at all — is anybody’s guess.

O’Brien could not have asked for a better example of leadership choices than the Iran War that has played out since his book’s publication. Trump need not have torn up the agreement Obama had negotiated to restrain Iran’s nuclear program, and need not have gone to war at all. Even after choosing war, he could have stated clear goals and rallied the nation behind them, but did not.

So even as Iran endures massive destruction and casualties, it may well outlast Americans’ willingness to pay high gas prices.

China vs. the United States. The rise of China is the kind of development that doesn’t have to lead to war (see the US vs. Great Britain), but often does. An obvious flash point is Taiwan, which China covets and the US protects.

What will happen if we go to war?

The final chapter of War and Power applies the concepts O’Brien has been developing. He does his best not to sensationalize his conclusions, but I have a hard time seeing how the US wins this war (short of escalating to nuclear weapons).

Initially, he says, the US would have several big advantages: US equipment is generally more technologically advanced, and US forces have a lot of war-fighting experience, while Chinese troops and systems are largely untested (and didn’t do well when they fought Vietnam in the late 1970s). It’s hard to imagine the Chinese pulling off the kind of complex operation the US did to snatch Venezuelan President Maduro out of his own palace.

So a quick American knock-out is a possibility. But if the war lasts, the advantage turns: The Chinese are good at making stuff, and we aren’t any more. As planes are shot down, ships sink, and ammunition from bullets to missiles gets used up, the Chinese will replace their losses much more easily than we will. The productive advantage that won World War II for us might win the next war for China.

And in the Trump era, Americans have lost all sense of diplomacy. So could we count on South Korea or Japan to stand with us and make the things (like ships) that we no longer manufacture in any quantity?

In the end, the war might hang on the Taiwanese themselves. How badly do they want to stay independent? In both Vietnam and Afghanistan, we saw the fruitlessness of propping up an ally that doesn’t want to fight. Taiwan might prove as resilient as Ukraine. Or it might not.

May 11, 2026 – 9:50 am Categories: Articles | Comments (9)

Tagged |

The Monday Morning Teaser

With the help of the courts, Republicans have won the redistricting wars. The pro-Democratic Virginia redistricting has been thrown out, and the Supreme Court has given southern states the go-ahead to get rid of all their non-White congresspeople — which they are racing to take advantage of.

It probably won’t save Mike Johnson’s Republican majority in the fall, but it will turn a big Democratic popular-vote victory into a small Democratic House majority.

Other than that, everything that was happening last week is still happening: Trump still isn’t admitting his strategic blunder in Iran, so the price of gasoline keeps rising. The climate change catastrophe keeps creeping closer. Trump’s popularity keeps falling, but the stock market keeps rising for some reason I can’t fathom. Ukraine continues to seize the initiative from Russia, but Putin also can never admit that he made a mistake, so the killing will continue. The hantavirus scare continues.

So this seemed like a good week to do a book review: War and Power by Phillips O’Brien. It focuses on two questions: Why do analysts keep making horribly wrong predictions about how wars will turn out? (Kyiv was supposed to fall in a few days, remember.) And what does a proper understanding of war say about any possible conflict between China and the US, maybe over Taiwan?

The review should be out maybe around 10 EDT, and the weekly summary around noon.

May 11, 2026 – 8:21 am Categories: Morning tease | Comments (2)

Necessary Means

Our difficulty with the Court today rises not from the Court as an institution but from human beings within it. But we cannot yield our constitutional destiny to the personal judgement of a few men who, being fearful of the future, would deny us the necessary means of dealing with the present.

– Franklin Roosevelt, On “Court Packing”
March 9, 1937

This week’s featured post is “What to do with a lawless Supreme Court?“

Ongoing stories

This week’s developments

This week everybody was talking about voting rights

The Supreme Court’s decision voiding the remainder of the Voting Rights Act is the topic of the featured post.

and abortion access

Friday, the Fifth Circuit Court of Appeals issued an order against mailing the abortion drug mifepristone. Today, the Supreme Court stayed that order for a week.

States that have outlawed abortion, like Louisiana, object to their citizens still having access to it via teleprescriptions and the mail. They allege that taking mifepristone at home is unsafe, though that seems to be a pretext.

It’s not clear what the next step in this case is.

and the war

Nothing major seems to be happening, but it’s hard to tell because of conflicting claims and counter-claims by the two sides. The US claims to have escorted two ships through the Strait of Hormuz. The Iranians claim to have hit a US warship.

The two sides’ peace proposals continue to be far apart. Iran’s 14 points are all about ending US attacks without any concessions on their part. US proposals want Iran to turn over its nuclear material and swear off future nuclear ambitions without any concessions on our part.

Meanwhile, oil remains around $114 per barrel. Paul Krugman keeps pointing to the physical constraints: The world is burning more oil than is being shipped. If this continues, the stockpiles will run out. At that point, if not before, the price will have to rise high enough that demand falls to equal supply.

and the Comey indictment

Nearly a year ago, James Comey photographed seashells arranged to spell out “86/47”, which Trump and his loyalists exaggerated into a threat of assassination (86) against Trump (47). As soon as Comey heard this interpretation, he took the photo down and apologized.

Now he has been indicted for making a threat and transmitting it over social media. Each count carries a maximum sentence of ten years in prison.

The whole thing is absurd on many levels, and illustrates just how far the current Justice Department will go to harass people Trump views as his enemies.

  • 86 has a variety of meanings, and it’s not clear that killing someone is even the most typical one.
  • We’re not sure whether Comey arranged the shells himself, or just found someone else’s arrangement on a beach.
  • Comey denies he intended the photo as a threat, and no evidence publicly available indicates otherwise.
  • It’s not clear whether Comey is supposed to have intended to carry out this alleged threat himself, or was saying that someone should do it.
  • In all previous cases, statements like this unconnected to a specific plan aren’t prosecuted under this statute. Simply saying “Somebody should kill this guy” is just free speech unless you are directly inciting somebody to do it. Ditto for “I’d like to kill this guy” if you have no specific plan to do so.

A judge will throw this out well before a jury hears it.

Isn’t it wonderful that the US is so crime-free that the Justice Department can waste its time on stuff like this?

and you also might be interested in …

The government owes billions in refunds to American businesses that paid Trump’s illegal tariffs. The big corporations have lawyers and other specialists to navigate the refund process, so they’ll probably get their money back. But small businesses probably won’t.

The DHS funding shutdown is over, except for funding Trump’s mass deportation programs. Republicans are preparing a reconciliation measure this summer to fund ICE and the border patrol through the end of Trump’s term, presumably so that next year’s Democratic Congress won’t have any leverage over these rogue agencies.

Democrats objected to funding ICE and CBP without restrictions after the videotaped murders of Alex Pretti and Rene Good in Minneapolis in January. The agents who committed these crimes have faced no charges, and federal agencies have done everything they could to block Minnesota’s investigations.

Democratic senators have been asking Trump’s judicial nominees who won the 2020 election and whether Trump could run for a third term in 2028. They can’t answer clearly, which should make everyone doubt their objectivity and resistance to Trump’s intimidation.

On Star Wars Day, Paul Krugman compares the proposed Trump battleships to the Death Star. The difference: The Death Star actually got built.

Trump’s new surgeon general nominee is yet another Fox News talking head, but at least this one has an active medical license. She says a lot of questionable things, but doesn’t appear to be crazy.

60 Minutes correspondent Sharyn Alfonsi received the Ridenhour Courage Prize for standing up to CBS’ management efforts to alter her piece on El Salvador’s CECOT Prison, where the Trump administration had sent a number of migrants.

I’d be lying if I said I wasn’t scared. Fear is a funny thing – it can paralyze you, or it can point you to exactly what needs to be protected. Right now, our industry is afraid of the wrong things. We’re afraid of offending power. We’re afraid of losing access. We’re afraid of another baseless lawsuit. But what we should all be afraid of is silence. Because as I learned [at her first job as a waitress], there is a fine line between being a team player and being an accomplice.

The Ridenhour Prizes are named for Ron Ridenhour, who exposed the My Lai massacre. They’ve been awarded since 2004, with the first prize going to Daniel Ellsberg, who leaked the Pentagon Papers.

and let’s close with something wild

If you want to get your mind off the news, The Guardian’s “Week in Wildlife” gallery is a good choice. The squirrel above appears to be adjusting the camera.

May 4, 2026 – 10:14 pm Categories: Weekly summaries | Comments (1)

What to do with a lawless Supreme Court?

Can democracy flourish, or even survive,
if two-thirds of the justices on the Supreme Court don’t believe in it?

[A previous version of this post didn’t load for some users, so I republished under a similar title.]

One of the great moments in American politics happened on March 15, 1965. It was barely a week since “Bloody Sunday“, when Alabama state police attacked civil rights demonstrators trying to cross the Edmund Pettis Bridge in Selma.

Police (and non-police actors like slave patrols or the Ku Klux Klan) had been beating up Black people for over 100 years, but this time it was on TV, where the whole nation could see it. Nonviolent protesters had brought the reality of oppression into the nation’s living rooms: White people could maintain their dominance, but only by being villains, by brutalizing people who posed no threat.

How would the nation respond?

President Johnson answered by addressing a joint session of Congress, saying these words in his White Texas accent:

There is no Negro problem. There is no Southern problem. There is no Northern problem. There is only an American problem. …

What happened in Selma is part of a far larger movement which reaches into every section and state of America. It is the effort of American Negroes to secure for themselves the full blessings of American life. Their cause must be our cause, too. Because it is not just Negroes, but really it’s all of us who must overcome the crippling legacy of bigotry and injustice.

And we shall overcome.

Johnson backed those words up by proposing the Voting Rights Act, which he signed into law a few months later.

Undoing that landmark piece of legislation has been the life’s work of Chief Justice John Roberts. Wednesday he finished the task.

Immediate and long-term perspectives The decision the Supreme Court released Wednesday, Louisiana v Callais (called just “Callais” in most media coverage), requires explanation both in an immediate and a long-term sense. Immediately, it blesses a practice the VRA was passed to eliminate: “cracking” minority communities and spreading them among multiple districts so that all (or nearly all) districts have a White majority. Or, looked at from the other side, Callais makes illegal the practice of intentionally gathering minority voters into a district where they might form a majority and elect a candidate of their own choosing.

Possibly immediately (if Louisiana can get away with the redistricting it now wants to do even after some absentee votes in its primary have already been mailed, and if other southern states can follow suit), but certainly by 2028, red states in the Deep South will redraw their maps so that maybe ten or so Black congresspeople are gerrymandered out of their jobs. By 2029, the congressional delegations of many Southern states may be as lily-white as they were before the VRA passed in 1965.

Bad as that outcome is, you can’t appreciate the full horror of this decision without seeing the larger context: Callais is the culmination of John Roberts’ 13-year program to repeal the VRA by judicial fiat, in contravention of the intention of the Congresses that passed it and kept renewing it. During those years, a series of corrupt decisions [1] have built on each other to get us where we are today: It is now hard to imagine any state action — no matter how racist — that could be reversed by bringing that state to court under the VRA.

In 2013’s Shelby County decision, Roberts threw out Section 5 of the VRA. Section 5 required a list of states with a history of Jim Crow election practices to get any changes to their election rules pre-cleared by the federal Justice Department. Roberts decided that this provision (which had been re-authorized by Congress as recently as 2006 and had been upheld in numerous Supreme Court precedents) violated the “equal sovereignty of the states”. He got around the precedential history by saying “things have changed dramatically” since the first version of the VRA was passed in 1965.

Here’s what I had to say about that at the time (in a piece I demurely titled “This Court Sucks“):

“Things have changed” is not a legal argument. It’s a fine point to make on a blog or at a dinner party, but a Supreme Court justice has to do better than that.

If Roberts were being a real judge here, he’d spell out what “equal sovereignty” has and hasn’t meant in American legal history. He’d enunciate an abstract standard by which Jim Crow was “exceptional” in 1965 and which justified the steps taken then. He’d explain how that standard was violated by the renewal of the VRA in 2006. And he’d lay down a set of conditions that Congress would need to satisfy to make the VRA acceptable today. (If you want to see what a real legal opinion looks like, read Justice Ginsburg’s dissent. Whether you agree with her or not, she is clearly doing something far more rigorous than what Roberts is doing.)

Roberts doesn’t do any of that. The VRA was vaguely justified in 1965 and is vaguely unjustified now, because “things have changed”. If I were a congressman, I would have no idea how to revise the VRA so that it passes constitutional muster. If Congress does revise it, lower court judges who rule on it will just be guessing about its constitutionality. It will have to go back to the Supreme Court before anyone knows whether it’s really a law again, because there are no standards in Roberts’ opinion by which a revision can be judged.

This isn’t law. It’s politics. It’s mush.

The mush has continued since. If Shelby County eliminated blocking racist election laws before they take effect, the Brnovich decision in 2021 made it harder to use Section 2 of the VRA to challenge such laws after they take effect. On a parallel track, the Rucho decision in 2019 said that partisan gerrymandering cases were “nonjusticiable”. In other words, partisan gerrymandering might be an unsavory practice, but neither the laws nor the Constitution give the courts power to do anything about it.

Sleight of hand. And that brings us to Wednesday’s Callais decision, written by Justice Alito. Once again, we are told that “things have changed”, so laws protecting minority voting rights are no longer necessary. [2] That sets up two legal sleights of hand: intent, and the confusion of partisan with racial gerrymandering.

One issue has run through the history of the VRA’s interpretation: Does the VRA only outlaw intentionally racist election practices? Or does it outlaw practices that have the effect of disenfranchising minority voters or diminishing their power, regardless of motive? The difference is important, because intent can be hard to prove in court. Many of the Jim Crow practices didn’t explicitly mention race: Poll taxes might be justified as a way to raise revenue, and the effect of discouraging poor people from voting, or the fact that Black voters are disproportionately poor — that might be portrayed as entirely accidental. Literacy tests might simply be a means of raising the quality of the average voter, unrelated to an educational system that favors White children. And so on.

This kind of thing was well understood even in 1965. [3]

As Justice Kagan explains in her dissent, the Court hobbled VRA enforcement by shifting to an “intent” interpretation in a 1980 decision. So Congress rewrote the VRA in 1982 to specify an “effects” interpretation. Alito denies that he is reinstating the “intent” view in contravention of Congress, but he is. He explicitly writes:

§2 of the VRA requires evidence giving rise to a strong inference of intentional discrimination.

The second sleight-of-hand makes use of the corrupt Rucho decision on partisan gerrymandering.

The upshot of Rucho was that, as far as federal law is concerned, a state legislature may use partisan advantage as a factor in redistricting. And litigants cannot circumvent that rule by dressing their political-gerrymandering claims in racial garb. Imposing liability “based on the racial effects of a political gerrymander in a jurisdiction in which race and partisan preference are very closely correlated . . . would, if accepted, provide a convenient way for future litigants and lower courts to sidestep our holding in Rucho that partisan-gerrymandering claims are not justiciable in federal court.” Alexander, 602 U. S., at 21. “Instead of claiming that a State impermissibly set a target Republican-Democratic breakdown, a plaintiff could simply reverse-engineer the partisan data into racial data and argue that the State impermissibly set a particular [racial] target. Our decisions cannot be evaded with such ease.”

Since intent is what matters, and a pro-Republican gerrymander looks just like a White-racist gerrymander, it’s impossible to prove racist (rather than partisan) intent. So the VRA’s protection against racial gerrymanders — effectively the last piece of the VRA still standing — is effectively dead.

But Kagan’s dissent calls Alito on his shenanigans:

[T]o its (modest) credit, the Rucho Court did not pretend that partisan gerrymanders were something in need of safeguarding. To the contrary, the Court conceded that they were “incompatible with democratic principles” and “lead to results that reasonably seem unjust.” (The Court’s rationale was only that federal courts lack competence to deal with gerrymanders, not that they were protected by law or beneficial as policy.) Today, though, the majority straight-facedly holds that the Voting Rights Act must be brought low to make the world safe for partisan gerrymanders. For how else, the majority reasons, can we preserve the authority of States to engage in this practice than by stripping minority citizens of their rights to an equal political process?

Rucho wrung its hands over partisan gerrymandering as a disreputable practice, and claimed only that the Court had no power to interfere with it. But now, Alito presents partisan gerrymandering as a state’s right, which Congress dare not impinge on and the Court is obligated to protect. There is, of course, no legal argument to back up that claim. It’s just how the Court’s Republican majority wants things to be, so Alito has slipped it between the lines. [4]

In fact, Alito has the logic exactly backwards: He says courts can’t throw out racial gerrymanders because they might accidentally throw out partisan gerrymanders. But the VRA says courts must throw out partisan gerrymanders if they have the same effect as a racial gerrymander. That’s the law as written, but under this Court, written law doesn’t mean much.

How to handle a corrupt court. Not long ago, when Democrats controlled the White House and both houses of Congress, some members of the party suggested expanding the Supreme Court to 13 justices, so that four new justices could outvote the corrupt Republican ones. This proposal never got close to implementation, because it was widely viewed as too radical. The party’s center saw raw exercises of power like that distasteful, as something dirty that we needed to keep clear of if we ever wanted to restore purity to our government.

In view of what Trump has been doing in his second term, and the increasingly aggressive partisanship of the current Supreme Court majority, that view now seems naive.

The purity viewpoint has already begun to change, as we have seen in the recent gerrymandering battle. Democrats could have clutched their pearls and held onto their purity as Texas made five Democratic seats in Congress vanish. But Gavin Newsom decided to fight fire with fire in California, and the state’s voters backed him up. More recently in Virginia, “centrist” Governor Abigail Spanberger made the same choice, and the electorate of her swing state agreed.

Legal purists worry about the Supreme Court losing authority if it is seen as just another political branch of government. But that’s what it already is, and public respect for it is waning, for good reasons.

We’ve been here before. In 1937, FDR called for a plan to expand the Supreme Court, which had been invalidating just about everything he tried to do. That proposal failed, in that it did not pass Congress. But it also succeeded in making the Court back off.

If Democrats take power again in 2029, a similar strategy is called for: Immediately pass legislation to restore voting rights, and to undo the other excesses of this corrupt Supreme Court. And have a court-expansion proposal ready to vote on if the Court tries to interfere.

The Roberts Court has become the enemy of multi-racial democracy. If we’re going to make up the ground that we’ve lost, and someday go beyond our previous accomplishments to achieve the democratic republic Americans have long envisioned, we’re not just going to have to overcome white supremacists or Republicans or oligarchs. We’re going to have to overcome a corrupt, partisan, racist Supreme Court as well.

And we shall overcome.

[1] I use the word corrupt carefully. It would be one thing if Roberts and the conservative majority that has been built around him professed some different-but-arguable legal theory that made the VRA unconstitutional or unenforceable. But I’ve been reading these decisions since Shelby County in 2013, and none of them make a recognizable legal argument. They are simply results that the Court majority wants. Josh Marshall explains:

In our thinned out political discourse people often use the term “corruption” to refer only to venal corruption – bribes, conflicts of interest mostly involving money, kept Justices like Clarence Thomas. That is neither the only nor the most significant form of corruption. In most cases venal corruption is significantly self-correcting. It gets exposed and prosecuted. The more general meaning of corruption is when a form of rot takes over an office or institution because of systemic and ingrained abuses of power. That is the case with the Supreme Court and it’s especially dangerous with the Supreme Court because a mix of history and restraint have left very few checks on its abuses. The Supreme Court is given specific powers to achieve specific ends. Over the last 15 years it has assumed vast new powers and used them consistently for anti-constitutional ends. Far from interpreting or defending the constitution it is at war with it.

[2] Justice Kagan’s dissent nails this perfectly:

So the majority moves on again, now to a grab-bag of “developments” that it somehow thinks license it to rewrite a statute. The majority first summons the slogan of Shelby County, in which the Court ordained itself the arbiter of when civil rights laws are no longer needed. “ ‘[T]hings have changed dramatically,’ ” today’s majority echoes, pointing to increases in African American voting registration and to the success of “ ‘African-Americans attain[ing] political office’ ”—“particularly in the South, where many §2 suits arise.” No doubt that is so, in large measure because of the Voting Rights Act. But it is a separate question whether those gains will endure once the Act’s protections are gone. See Shelby County, 570 U. S., at 590 (Ginsburg, J., dissenting) (noting the fallacy of “throwing away your umbrella in a rainstorm because you are not getting wet”). And surely—but apparently not—the proper actor to answer that question is Congress. … It is for the people’s representatives in Congress to decide when the Nation need no longer worry about the dilution of minority voting strength.

[3] Johnson said as much in his speech:

Every device of which human ingenuity is capable has been used to deny this right. The Negro citizen may go to register only to be told that the day is wrong, or the hour is late, or the official in charge is absent. And if he persists, and if he manages to present himself to the registrar, he may be disqualified because he did not spell out his middle name or because he abbreviated a word on the application. And if he manages to fill out an application he is given a test. The registrar is the sole judge of whether he passes this test. He may be asked to recite the entire Constitution, or explain the most complex provisions of state law. And even a college degree cannot be used to prove that he can read and write. For the fact is that the only way to pass these barriers is to show a white skin.

Experience has clearly shown that the existing process of law cannot overcome systematic and ingenious discrimination. No law that we now have on the books–and I have helped to put three of them there–can ensure the right to vote when local officials are determined to deny it.

So the VRA was designed to go beyond “the existing process of law”. That is precisely what Roberts, Alito, and their allies have undone, because (in their judgment and their judgment alone) “things have changed”.

[4] It’s tempting to give a pass to the Republican judges who didn’t write on this topic: Kavanaugh, Gorsuch, and Barrett. But they had to see the logical holes in this argument, and they then chose to vote for it without posting a dissent on any particular.

May 4, 2026 – 11:58 am Categories: Articles | Comments (5)

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What to do about a lawless Supreme Court?

Can democracy flourish, or even survive,
if two-thirds of the justices on the Supreme Court don’t believe in it?

One of the great moments in American politics happened on March 15, 1965. It was barely a week since “Bloody Sunday“, when Alabama state police attacked civil rights demonstrators trying to cross the Edmund Pettis Bridge in Selma.

Police (and non-police actors like slave patrols or the Ku Klux Klan) had been beating up Black people for over 100 years, but this time it was on TV, where the whole nation could see it. Nonviolent protesters had brought the reality of oppression into the nation’s living rooms: White people could maintain their dominance, but only by being villains, by brutalizing people who posed no threat.

How would the nation respond?

President Johnson answered by addressing a joint session of Congress, saying these words in his White Texas accent:

There is no Negro problem. There is no Southern problem. There is no Northern problem. There is only an American problem. …

What happened in Selma is part of a far larger movement which reaches into every section and state of America. It is the effort of American Negroes to secure for themselves the full blessings of American life. Their cause must be our cause, too. Because it is not just Negroes, but really it’s all of us who must overcome the crippling legacy of bigotry and injustice.

And we shall overcome.

Johnson backed those words up by proposing the Voting Rights Act, which he signed into law a few months later.

Undoing that landmark piece of legislation has been the life’s work of Chief Justice John Roberts. Wednesday he finished the task.

Immediate and long-term perspectives The decision the Supreme Court released Wednesday, Louisiana v Callais (called just “Callais” in most media coverage), requires explanation both in an immediate and a long-term sense. Immediately, it blesses a practice the VRA was passed to eliminate: “cracking” minority communities and spreading them among multiple districts so that all (or nearly all) districts have a White majority. Or, looked at from the other side, Callais makes illegal the practice of intentionally gathering minority voters into a district where they might form a majority and elect a candidate of their own choosing.

Possibly immediately (if Louisiana can get away with the redistricting it now wants to do even after some absentee votes in its primary have already been mailed, and if other southern states can follow suit), but certainly by 2028, red states in the Deep South will redraw their maps so that maybe ten or so Black congresspeople are gerrymandered out of their jobs. By 2029, the congressional delegations of many Southern states may be as lily-white as they were before the VRA passed in 1965.

Bad as that outcome is, you can’t appreciate the full horror of this decision without seeing the larger context: Callais is the culmination of John Roberts’ 13-year program to repeal the VRA by judicial fiat, in contravention of the intention of the Congresses that passed it and kept renewing it. During those years, a series of corrupt decisions [1] have built on each other to get us where we are today: It is now hard to imagine any state action — no matter how racist — that could be reversed by bringing that state to court under the VRA.

In 2013’s Shelby County decision, Roberts threw out Section 5 of the VRA. Section 5 required a list of states with a history of Jim Crow election practices to get any changes to their election rules pre-cleared by the federal Justice Department. Roberts decided that this provision (which had been re-authorized by Congress as recently as 2006 and had been upheld in numerous Supreme Court precedents) violated the “equal sovereignty of the states”. He got around the precedential history by saying “things have changed dramatically” since the first version of the VRA was passed in 1965.

Here’s what I had to say about that at the time (in a piece I demurely titled “This Court Sucks“):

“Things have changed” is not a legal argument. It’s a fine point to make on a blog or at a dinner party, but a Supreme Court justice has to do better than that.

If Roberts were being a real judge here, he’d spell out what “equal sovereignty” has and hasn’t meant in American legal history. He’d enunciate an abstract standard by which Jim Crow was “exceptional” in 1965 and which justified the steps taken then. He’d explain how that standard was violated by the renewal of the VRA in 2006. And he’d lay down a set of conditions that Congress would need to satisfy to make the VRA acceptable today. (If you want to see what a real legal opinion looks like, read Justice Ginsburg’s dissent. Whether you agree with her or not, she is clearly doing something far more rigorous than what Roberts is doing.)

Roberts doesn’t do any of that. The VRA was vaguely justified in 1965 and is vaguely unjustified now, because “things have changed”. If I were a congressman, I would have no idea how to revise the VRA so that it passes constitutional muster. If Congress does revise it, lower court judges who rule on it will just be guessing about its constitutionality. It will have to go back to the Supreme Court before anyone knows whether it’s really a law again, because there are no standards in Roberts’ opinion by which a revision can be judged.

This isn’t law. It’s politics. It’s mush.

The mush has continued since. If Shelby County eliminated blocking racist election laws before they take effect, the Brnovich decision in 2021 made it harder to use Section 2 of the VRA to challenge such laws after they take effect. On a parallel track, the Rucho decision in 2019 said that partisan gerrymandering cases were “nonjusticiable”. In other words, partisan gerrymandering might be an unsavory practice, but neither the laws nor the Constitution give the courts power to do anything about it.

Sleight of hand. And that brings us to Wednesday’s Callais decision, written by Justice Alito. Once again, we are told that “things have changed”, so laws protecting minority voting rights are no longer necessary. [2] That sets up two legal sleights of hand: intent, and the confusion of partisan with racial gerrymandering.

One issue has run through the history of the VRA’s interpretation: Does the VRA only outlaw intentionally racist election practices? Or does it outlaw practices that have the effect of disenfranchising minority voters or diminishing their power, regardless of motive? The difference is important, because intent can be hard to prove in court. Many of the Jim Crow practices didn’t explicitly mention race: Poll taxes might be justified as a way to raise revenue, and the effect of discouraging poor people from voting, or the fact that Black voters are disproportionately poor — that might be portrayed as entirely accidental. Literacy tests might simply be a means of raising the quality of the average voter, unrelated to an educational system that favors White children. And so on.

This kind of thing was well understood even in 1965. [3]

As Justice Kagan explains in her dissent, the Court hobbled VRA enforcement by shifting to an “intent” interpretation in a 1980 decision. So Congress rewrote the VRA in 1982 to specify an “effects” interpretation. Alito denies that he is reinstating the “intent” view in contravention of Congress, but he is. He explicitly writes:

§2 of the VRA requires evidence giving rise to a strong inference of intentional discrimination.

The second sleight-of-hand makes use of the corrupt Rucho decision on partisan gerrymandering.

The upshot of Rucho was that, as far as federal law is concerned, a state legislature may use partisan advantage as a factor in redistricting. And litigants cannot circumvent that rule by dressing their political-gerrymandering claims in racial garb. Imposing liability “based on the racial effects of a political gerrymander in a jurisdiction in which race and partisan preference are very closely correlated . . . would, if accepted, provide a convenient way for future litigants and lower courts to sidestep our holding in Rucho that partisan-gerrymandering claims are not justiciable in federal court.” Alexander, 602 U. S., at 21. “Instead of claiming that a State impermissibly set a target Republican-Democratic breakdown, a plaintiff could simply reverse-engineer the partisan data into racial data and argue that the State impermissibly set a particular [racial] target. Our decisions cannot be evaded with such ease.”

Since intent is what matters, and a pro-Republican gerrymander looks just like a White-racist gerrymander, it’s impossible to prove racist (rather than partisan) intent. So the VRA’s protection against racial gerrymanders — effectively the last piece of the VRA still standing — is effectively dead.

But Kagan’s dissent calls Alito on his shenanigans:

[T]o its (modest) credit, the Rucho Court did not pretend that partisan gerrymanders were something in need of safeguarding. To the contrary, the Court conceded that they were “incompatible with democratic principles” and “lead to results that reasonably seem unjust.” (The Court’s rationale was only that federal courts lack competence to deal with gerrymanders, not that they were protected by law or beneficial as policy.) Today, though, the majority straight-facedly holds that the Voting Rights Act must be brought low to make the world safe for partisan gerrymanders. For how else, the majority reasons, can we preserve the authority of States to engage in this practice than by stripping minority citizens of their rights to an equal political process?

Rucho wrung its hands over partisan gerrymandering as a disreputable practice, and claimed only that the Court had no power to interfere with it. But now, Alito presents partisan gerrymandering as a state’s right, which Congress dare not impinge on and the Court is obligated to protect. There is, of course, no legal argument to back up that claim. It’s just how the Court’s Republican majority wants things to be, so Alito has slipped it between the lines. [4]

In fact, Alito has the logic exactly backwards: He says courts can’t throw out racial gerrymanders because they might accidentally throw out partisan gerrymanders. But the VRA says courts must throw out partisan gerrymanders if they have the same effect as a racial gerrymander. That’s the law as written, but under this Court, written law doesn’t mean much.

How to handle a corrupt court. Not long ago, when Democrats controlled the White House and both houses of Congress, some members of the party suggested expanding the Supreme Court to 13 justices, so that four new justices could outvote the corrupt Republican ones. This proposal never got close to implementation, because it was widely viewed as too radical. The party’s center saw raw exercises of power like that distasteful, as something dirty that we needed to keep clear of if we ever wanted to restore purity to our government.

In view of what Trump has been doing in his second term, and the increasingly aggressive partisanship of the current Supreme Court majority, that view now seems naive.

The purity viewpoint has already begun to change, as we have seen in the recent gerrymandering battle. Democrats could have clutched their pearls and held onto their purity as Texas made five Democratic seats in Congress vanish. But Gavin Newsom decided to fight fire with fire in California, and the state’s voters backed him up. More recently in Virginia, “centrist” Governor Abigail Spanberger made the same choice, and the electorate of her swing state agreed.

Legal purists worry about the Supreme Court losing authority if it is seen as just another political branch of government. But that’s what it already is, and public respect for it is waning, for good reasons.

We’ve been here before. In 1937, FDR called for a plan to expand the Supreme Court, which had been invalidating just about everything he tried to do. That proposal failed, in that it did not pass Congress. But it also succeeded in making the Court back off.

If Democrats take power again in 2029, a similar strategy is called for: Immediately pass legislation to restore voting rights, and to undo the other excesses of this corrupt Supreme Court. And have a court-expansion proposal ready to vote on if the Court tries to interfere.

The Roberts Court has become the enemy of multi-racial democracy. If we’re going to make up the ground that we’ve lost, and someday go beyond our previous accomplishmens to achieve the democratic republic Americans have long envisioned, we’re not just going to have to overcome white supremacists or Republicans or oligarchs. We’re going to have to overcome a corrupt, partisan, racist Supreme Court as well.

And we shall overcome.

[1] I use the word corrupt carefully. It would be one thing if Roberts and the conservative majority that has been built around him professed some different-but-arguable legal theory that made the VRA unconstitutional or unenforceable. But I’ve been reading these decisions since Shelby County in 2013, and none of them make a recognizable legal argument. They are simply results that the Court majority wants. Josh Marshall explains:

In our thinned out political discourse people often use the term “corruption” to refer only to venal corruption – bribes, conflicts of interest mostly involving money, kept Justices like Clarence Thomas. That is neither the only nor the most significant form of corruption. In most cases venal corruption is significantly self-correcting. It gets exposed and prosecuted. The more general meaning of corruption is when a form of rot takes over an office or institution because of systemic and ingrained abuses of power. That is the case with the Supreme Court and it’s especially dangerous with the Supreme Court because a mix of history and restraint have left very few checks on its abuses. The Supreme Court is given specific powers to achieve specific ends. Over the last 15 years it has assumed vast new powers and used them consistently for anti-constitutional ends. Far from interpreting or defending the constitution it is at war with it.

[2] Justice Kagan’s dissent nails this perfectly:

So the majority moves on again, now to a grab-bag of “developments” that it somehow thinks license it to rewrite a statute. The majority first summons the slogan of Shelby County, in which the Court ordained itself the arbiter of when civil rights laws are no longer needed. “ ‘[T]hings have changed dramatically,’ ” today’s majority echoes, pointing to increases in African American voting registration and to the success of “ ‘African-Americans attain[ing] political office’ ”—“particularly in the South, where many §2 suits arise.” No doubt that is so, in large measure because of the Voting Rights Act. But it is a separate question whether those gains will endure once the Act’s protections are gone. See Shelby County, 570 U. S., at 590 (Ginsburg, J., dissenting) (noting the fallacy of “throwing away your umbrella in a rainstorm because you are not getting wet”). And surely—but apparently not—the proper actor to answer that question is Congress. … It is for the people’s representatives in Congress to decide when the Nation need no longer worry about the dilution of minority voting strength.

[3] Johnson said as much in his speech:

Every device of which human ingenuity is capable has been used to deny this right. The Negro citizen may go to register only to be told that the day is wrong, or the hour is late, or the official in charge is absent. And if he persists, and if he manages to present himself to the registrar, he may be disqualified because he did not spell out his middle name or because he abbreviated a word on the application. And if he manages to fill out an application he is given a test. The registrar is the sole judge of whether he passes this test. He may be asked to recite the entire Constitution, or explain the most complex provisions of state law. And even a college degree cannot be used to prove that he can read and write. For the fact is that the only way to pass these barriers is to show a white skin.

Experience has clearly shown that the existing process of law cannot overcome systematic and ingenious discrimination. No law that we now have on the books–and I have helped to put three of them there–can ensure the right to vote when local officials are determined to deny it.

So the VRA was designed to go beyond “the existing process of law”. That is precisely what Roberts, Alito, and their allies have undone, because (in their judgment and their judgment alone) “things have changed”.

[4] It’s tempting to give a pass to the Republican judges who didn’t write on this topic: Kavanaugh, Gorsuch, and Barrett. But they had to see the logical holes in this argument, and they then chose to vote for it without posting a dissent on any particular.

May 4, 2026 – 10:56 am Categories: Articles | Comments (2)

Tagged , , |

The Monday Morning Teaser

Ordinarily, things that you see coming aren’t shocking. Tax day, your best friend’s wedding, the visit your mother booked in March — whether you’re looking forward to it or dreading it, it’s not going to be shocking.

People who watch the Supreme Court like I do have seen the Callais decision coming for a long time. John Roberts and his conservative majority have been out to scuttle the Voting Rights Act for more than a decade. They’ve been chipping away at this section, then that one — always reassuring the public that it didn’t really matter, because the rest of the VRA was still there to protect minority rights, at least until the next case.

It was only a matter of time before they finished it off, and Calais looked like the case to do it. And yet, reading Justice Alito’s majority opinion this week was shocking all the same. The bad history, the gaping holes in his logic, the complete non sequiturs, but most of all the arrogation of Congress’ power into the Supreme Court — I could still be shocked by the level of corruption that has gotten into our highest court. They’re not even trying to do law any more, or to convince us that they are.

So I had to write about it. This week’s featured post “What to do about a lawless Supreme Court?” should be out by around 10 or so EDT.

The weekly summary has another court case to discuss: the Fifth Circuit’s attempt to keep the primary abortion drug from passing through the mail. And then there’s the complete joke Todd Blanche is making of the Justice Department with its absurd indictment of James Comey for posting a picture of seashells on a beach. The Iran War continues to drag on, because Trump can neither win it nor admit defeat. And that means gas prices will continue to rise and the economy will suffer. Trump’s popularity will continue to tank and it will become ever more essential for him to find ways to cheat in the fall elections.

Expect to see the weekly summary around noon or so.

May 4, 2026 – 8:43 am Categories: Morning tease | Comments (4)

Don’t Start

The best way to achieve what is now the central war aim — opening the Strait — would have been simply not to start the war in the first place.

– Josh Marshall

This week’s featured posts are “Where the Gerrymandering Battle Stands After Virginia” and “Fixing the Asylum Mess“.

Ongoing stories

  • Trump’s assault on American democracy. Now that gerrymandering has failed as a strategy for hanging onto power, I eagerly await Trump’s next move.
  • Climate change. Check out George Manbiot’s column on the possible collapse of the the Atlantic meridional overturning circulation.
  • The Iran/Lebanon War. Formal peace talks aren’t happening. Saturday, Trump told Jared Kushner and Steve Witkoff to stay home for now. Iran is offering to re-open the Strait of Hormuz to end the war, essentially offering Trump no gain from it.
  • Ukraine. Here’s the Institute for the Study of War’s current update.

This week’s developments

This week everybody was talking about gerrymandering

That’s the subject of one featured post.

and the shooting at the White House Correspondents’ Dinner

Saturday, a gunman fired several shots during the dinner, which President Trump and many other administration officials were attending. The shots were audible inside the ballroom, but none of the guests were injured.

From a pure how-could-this-happen point of view, I found the analysis at the Doomsday Scenario blog informative and down to Earth. Garrett Graff is a journalist who has attended past WHC dinners and has written extensively about presidential security. He thinks the security plan worked pretty well: It’s unreasonable to expect the Secret Service to lock down an entire hotel that has multiple unrelated events and guests, so the goal is to stop would-be attackers well before they get within range of the president. That’s what happened Saturday.

My political response is that I’m glad the attack was unsuccessful. Anyone who reads this blog regularly knows that I consider the Trump regime to be the greatest threat to American democracy since the Civil War, and I have no great affection for Trump as a person. But I think we’re on track to restore the constitutional order through the electoral system, as the Founders intended and as Hungary has recently done. Anything that sends us off on a violent trajectory is a risk I’d rather not take.

Speaking frankly, the attack was fortuitously timed for Trump, perhaps breaking a cycle that sees his popularity touch new lows with each poll. Given the boost his 2024 campaign got from a failed assassination attempt, it’s hard not to be suspicious. But I’m not going to push any conspiracy theories unless substantial evidence presents itself. I’d be far more suspicious if the shooter hadn’t survived to tell his own story.

Dean Blundell (who is a little too rabidly anti-Trump for my taste) noted that it only took minutes to start the talking point that “This is why the White House needs its own ballroom.”

Predictably, the media is asking Democrats if they regret their anti-Trump rhetoric, and completely ignoring the overall rhetorical environment. Trump himself is by far the greatest source of inflammatory rhetoric, often referring to his opponents or critics as insane or treasonous.

and the war

Not much new to say. Trump continues to want to dictate terms to Iran as if he had won the war. Iran doesn’t feel defeated and won’t be dictated to. The Obama agreement that Trump tore up looks better and better all the time.

and the Southern Poverty Law Center

The latest example of politicization at the Department of Justice is the indictment of the Southern Poverty Law Center.

Everyone more-or-less agrees on the basic facts: The SPLC paid people to infiltrate various right-wing and white-supremacist groups, as it has done for decades. Since their agents were undercover, the SPLC didn’t publicize their work. DOJ is charging that this was a fraud against SPLC’s contributors. I haven’t given money to the SPLC in years, but I’m still probably fairly representative of their donors. I would not feel defrauded.

and you also might be interested in …

Early direct consequence of the Hungarian election: The EU approved a $106 billion loan to Ukraine.

Friday, Trump fired all 24 members of the National Science Foundation’s governing board. This is exactly what it appears to be: a move to make scientific research less independent and more partisan.

Remember the Afghans who are in trouble with the Taliban because they helped us? We’ve got 1100 of them housed at a military base in Qatar, and we’ve made them this amazing offer: Go to the Congo or go home to the Taliban.

Texas Tech has gone even further than banning LGBTQ-friendly majors and courses. It even bans sexual-orientation and gender-identity as topics for student research.

Canary Media makes the case against biofuels, which sound like a great idea but often aren’t. Not only do biofuel crops (like corn) have a high carbon footprint in the US, but internationally they encourage cropland expansion that results in deforestation. Sadly, both parties have latched onto biofuels as a good idea.

Democrats need a new approach to agriculture, focused less on the 1% of Americans who farm and more on the 100% who eat. That would mean redistributing less money from ordinary taxpayers to the biggest farmers who grow the most common row crops, while also opposing the tariffs, price supports, and biofuel mandates that raise prices at the supermarket. Let Trump stand for giving farmers ​“much better than a level playing field.” Democrats should stand with everybody else.

Small farmers are in trouble this year: Thanks to the closing of the Strait of Hormuz, fertilizer and diesel fuel costs are way up. Most farmers voted for Trump.

Trump and his allies have been having a hard time in court. Laura Loomer’s $150 million lawsuit against Bill Maher (for saying on his comedy show that Trump “might be” f**king Loomer) was thrown out — at least partly because of evidence the claim was true.

And a federal judge appears skeptical of Trump’s $10 billion shake-down of the Treasury. He’s suing the IRS because some of his tax information got leaked to the media during his first term. Conceivably there might be damage there, but nothing like $10 billion. But that’s not what’s bothering the judge: Since Trump oversees the IRS, he controls both sides of the litigation. He is essentially in a position to award himself money.

The No Kings protester who dressed as a penis holding a “No Dick Tater” sign is not guilty of whatever police in Fairhope, Alabama tried to charge her with. Attempting to show the woman was trying to get arrested, the prosecution called her husband to the stand as a surprise witness, and asked if he had brought bail money to the protest.

“I always make sure I have bail money!” Fletcher replied emphatically, as if this should be the most obvious thing in the world. Did he have bail money on him now? “Yeah!” Fletcher exclaimed, then gestured broadly. “With this many cops around? Come on.” The room erupted with laughter.

Massachusetts is encouraging the installation of giant batteries to even out solar power.

and let’s close with a blast from the past

Musical comedian Victor Borge was quite popular in my youth, but has largely been forgotten. Enjoy.

April 27, 2026 – 12:48 pm Categories: Weekly summaries | Comments (5)

Fixing the Asylum Mess

A bad process, but a good cause.

One of the first things President Trump did in his second term was to “declare that an invasion is ongoing at the southern border” and respond by directing “that entry into the United States of such aliens be suspended until I issue a finding that the invasion at the southern border has ceased.” His order also denied the right of migrants at the border or having entered the US to contest removal by applying for asylum.

A federal court previously found that the president had overstepped the bounds of his power, and Friday the DC Circuit Court of Appeals agreed.

we hold that the Proclamation and Guidance are unlawful insofar as they circumvent Congress’s carefully crafted removal procedures and cast aside federal laws that afford individuals the opportunity to apply and be considered for a grant of asylum or withholding of removal.

This topic is a bit messy to discuss, because several things are true at the same time.

  • Our laws about asylum exist for very good reasons.
  • Our current asylum process doesn’t work well and is open to abuse.
  • Processes established by law need to be changed by Congress, not by the President.

Why do we grant asylum? Asylum allows people escaping oppression in one country to seek refuge in another.

Any discussion of asylum needs to start with the voyage of the St. Louis, an ocean liner in the Hamburg-Amerika fleet. After Kristallnacht, many German Jews decided that it was not safe to stay in Germany. The St. Louis left Hamburg on May 13, 1939 with 937 passengers, nearly all of them Jews. The original destination was Havana, where many of the passengers hoped to wait until they could be granted admission to the United States. But the Cuban government allowed only 28 of them to land. The rest remained on the ship, which then tried to go to Miami, where the passengers were also denied entry. (Direct appeals to President Roosevelt went unanswered.) The St. Louis then returned to Europe. Britain, Belgium, the Netherlands, and France accepted most of the passengers, at least temporarily. But few managed to get out of Belgium, the Netherlands, and France before the Germans conquered those countries. Eventually, 254 of the St. Louis passengers died in the Holocaust.

Often when we look back at the Holocaust, we ask “Why didn’t more Jews leave while they could?” The answer is that many did try, but had nowhere to go. Hundreds of Jews who would ultimately die in the Holocaust made it as far as Miami’s harbor, but were sent back.

Much of the world made a Never Again pledge in response to the horror of the Holocaust. That sentiment got institutionalized in several international agreements, like the Convention on Refugees, the Convention Against Torture, and the Universal Declaration of Human Rights. The United States is party to all these agreements, and Congress has passed laws to implement the promises we made there. When the Trump regime announced that it would no longer accept applications for asylum, it was violating not only US laws, but the treaties we had signed.

What’s wrong with our asylum system? I’ll let the Trump regime make the case in its own words. Here’s Deputy Secretary of State Christopher Landau speaking to a UN conference in 2025:

I think now in the year 2025 – we’re a quarter of the way through the 21st century – we take a step back and we see that there are massive migratory flows taking place, and a lot of times massive amounts of people are claiming asylum. In our system at least, when these claims get adjudicated, 90-plus percent of people are found not to be eligible for asylum. And we all know this kind of abuse is happening, frankly. And people who are economic migrants are coming in, in our country, saying that they are – that they should be given asylum. Our problem is when you have hundreds of thousands of people who arrive all at once and claim this, that really requires an individualized adjudication.

So now, we are in a sense saying, okay, well, please, you take a number and we will be back for your individualized interview in six years. And in the meantime, people can live in our country legally. They can start – they might get married. They can work. And so in a sense the migration – the asylum system has become a huge loophole in our migration laws. And we just have to be realistic about this, right? And I think the UN has a responsibility – just as it was instrumental, I think, in encouraging countries to adopt these kind of laws, I think we have to be realistic that these laws are now being abused. And we have to just acknowledge that.

Now, this is a Trump official, and the Trump regime is famous for fudging numbers. So ignore some of Landau’s specifics, like the 90% and the six years. But here’s the liberal Brookings Institute saying something similar:

Further complicating the task of managing the southern border was an historic change in the nature and sources of unauthorized border crossers. During the final decades of the 20th century, most of such crossers were working-age young Mexican men. But during the current century, the mix shifted to families from Central America and beyond who sought asylum in the United States by claiming a “reasonable fear of persecution” in their country of origin.

The evidence suggests that most asylum seekers were fleeing poverty, lack of economic mobility, crime, and political disorder — all good reasons for leaving but these do not meet the standard for being granted asylum. Nevertheless, the law requires that asylum claims be assessed on a case-by-case basis, and as the number of cases rose sharply, the institutions responsible for adjudicating them were overwhelmed. During the past decade, the share of immigration cases resolved each year has fallen by half, and the backlog of pending cases rose from about 400,000 in 2013 to more than 3.1 million by the end of 2023. Few were held in detention for long periods; most were released into the U.S. with court dates far in the future, a policy that critics denounced as “catch and release.”

So the gist is: Yes, you’re poor and you long for the kinds of economic opportunity you might find in the US. But you’re not the future Holocaust victim our asylum laws were meant for.

The problem with a system like this is that once the problem becomes known, it gets worse: The swamped immigration courts result in longer delays, which encourage more people to apply even if they don’t have a good case. And that swamps the courts further.

What to do. Obviously, we need to process asylum cases faster. If we could do that, the motivation to file a flimsy asylum case would diminish, reversing the vicious cycle we’re currently in.

There are two ways to do this:

  • Create more immigration courts to work through the backlog faster.
  • Streamline the process so that each case takes less court time.

Each way has a downside: More courts require more money, and a streamlined process may not give asylum seekers a fair opportunity to present their cases. So a certain amount of care needs to be taken. But both are preferable to just shutting the door, as Trump wants to do.

In any case, the solution needs to take account of our treaty obligations and the laws Congress has already passed. And that means that Congress has to pass the solution; it can’t just be imposed by the President.

What stands in the way of a legislative solution is that Trump does not know how to make a win-win deal. He wants what he wants, and he wants to get it without giving up anything. But Democrats are going to want things too, like a path to citizenship for the Dreamers and limits on mass deportation. Congress is a place for compromise, and Trump hates compromise.

Partly that’s just him, but it also represents the people who elected him. In 2024, a compromise immigration bill was ready to go through Congress, but Trump urged Republicans to pull out of the deal so that he could have a better issue to run on against Biden or Harris. And before Trump, back in 2013 a carefully crafted bipartisan compromise passed the Senate before House conservatives rejected it. (Arguably, his role in crafting the compromise was what scuttled Marco Rubio’s presidential candidacy in 2016.)

Above all, we need to do something. There are still oppressive governments in the world and still people in need of refuge. When the next St. Louis liner arrives in Miami, we don’t want to turn it away.

April 27, 2026 – 10:53 am Categories: Articles | Comments (12)

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Where the Gerrymandering Battle Stands After Virginia

Iran is not the only war Trump started, but appears to be losing.

Virginia became the latest state to gerrymander its congressional districts ahead of the midterm elections. Tuesday, a referendum to redraw the state’s maps passed by 3%, 51.5%-48.5%. The likely effect is to turn the current 6-5 Democratic majority in Virginia’s US House delegation into a 10-1 advantage.

Vox estimates that this result puts the Democrats one seat ahead in the redistricting battle that Trump started in Texas. Florida could still tip the balance in the GOP’s favor, but probably not by much. [1]

Prior to the current round, partisan gerrymandering had more or less balanced out: In 2024, Republican House candidates got a small majority of the votes and their party wound up with a small majority of the seats, as they should have.

Republicans have gone to court to prevent Virginia’s new map from taking effect. A circuit-court judge blocked implementation, but was overturned by an appeals court. The case goes to the Virginia Supreme Court today. The deadline for candidates to file to be on the ballot is May 26, so this process can’t take long.

Marc Elias writes in his Democracy Docket blog:

Republicans are asking the courts to throw out 3 million votes in an election that they lost.

For Republicans, democracy is nothing more than a word. 

They are content if every person who waited in line to vote or took time off from work to cast their ballot did it for naught. They seek a result that would mean that every election worker who worked the polls wasted their time. They want the people who knocked doors or canvassed on either side of this question to feel as though they have accomplished nothing.

Meanwhile, here’s how the so-called “liberal media” has covered this story.

When Trump started this battle by pushing Texas to redraw it already-gerrymandered maps, hoping to gain five Republican House seats, The Washington Post characterized Democratic opposition as a “freakout”, and reassured its readers that “What’s happening in the Lone Star State is not a threat to democracy.”

But here’s the Post editorial board’s response to the Virginia vote: “Virginia plunges America deeper into the gerrymandering abyss“. It characterized the referendum as “a power grab by Democrats”. The New York Times produced a similar spin, highlighting how “Democrats Once Loathed Gerrymandering. Now They’re Pushing for It.“

But there’s no mystery here, and no hypocrisy to expose. AOC summed up the Republican reaction to the vote as “Wah, wah, wah” and explained the larger context:

Listen, Democrats have attempted and asked Republicans for 10 years to ban partisan gerrymandering. And for 10 years, Republicans have said no. Republicans have fought for partisan gerrymanders across the United States of America, and these are the rules that they have set.

One notable attempt to end gerrymandering was the For the People Act, which Nancy Pelosi pushed through the House, but Republicans filibustered in the Senate. AOC says that deal is still available. [2]

If Republicans decide that they would like to revisit a ban on partisan gerrymandering, I welcome them. We have the bill right here to end this all today. But they don’t want to, because they like pursuing and continuing to enact an unfair electoral landscape, and so we have an obligation to defend ourselves.

This obligation to “defend ourselves” represents a major change in Democratic tactics, beginning with Gavin Newsom’s aggressive response to the Texas gerrymander. Previously, Democrats had tried to cast themselves as the good-government party, avoiding the bad-faith tactics that Republicans have used to seek power. [3]

But perversely, joining Republicans in the gutter may ultimately work a good-government purpose. Now that Republicans realize they could lose too, perhaps a bipartisan consensus against gerrymandering will finally develop.

[1] All such estimates are iffy, because voters may not vote the same way they have in recent elections.

Gerrymandering works by spreading a party’s majority thin to stretch it over more districts. So a miscalculation could result in a previously safe seat flipping.

For example: Suppose a state has a 51-49 partisan majority. The majority party could gerrymander its congressional districts so that each district gives it the same 51-49 advantage, setting up the possibility that it could win all the House seats. However, even a small shift in the political winds could turn the situation around and give the other party all the seats.

This question arises particularly in Texas, where the new maps are based on the 2024 results. However, polls indicate that many Hispanics who voted for Trump in 2024 may regret their vote, or may not see themselves as Republican voters generally. So trying to gain five seats conceivably could result in losing a few seats the GOP had thought were safe.

[2] AOC might have added that liberal Supreme Court judges have tried to find gerrymandering unconstitutional, but conservative justices have supported it, arguing that district maps are a “political question” to be decided perhaps by the very legislatures that have been gerrymandered to lock in one-party rule.

A related court case should be decided soon: In Louisiana v Callais, the Court appears to be ready to drive the final nail into the coffin of the Voting Rights Act. Current interpretations of the VRA require states to draw a certain number of minority-majority districts, so that Black or Hispanic voters have a chance to elect congresspeople to represent their interests. Without this stipulation, a state could spread its minority populations across multiple districts and elect White-only congressional delegations. While this change would likely not take effect until the 2028 elections, it could result in as many as 15 Black House members in the South losing their seats.

[3] For example, Biden re-established the wall between the White House and the Justice Department that Trump had torn down in his first term. Arguably, Merrick Garland’s desire to end DOJ’s politicization is the reason that the Trump indictments appeared so slowly, which allowed him and the partisan Supreme Court to run out the clock.

April 27, 2026 – 9:26 am Categories: Articles | Comments (5)

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