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What happens if the Court rejects the rule of law?
Last December, for example, the Supreme Court handed down a decision that fundamentally alters the Union — giving states sweeping authority to restrict their residents’ constitutional rights.
At least, that’s what happened if you take the Court’s 5-4 decision in Whole Woman’s Health v. Jackson seriously. Jackson involved Texas’s anti-abortion law SB 8, which allowed “any person” who is not employed by the state to sue anyone they suspect of performing an abortion after the sixth week of pregnancy, and to collect a bounty of at least $10,000 from that abortion provider. The Court allowed that law to take effect, even though abortion was still considered a constitutional right at the time.
If you apply the logic from Jackson more broadly, any state could pass a law unleashing such litigious bounty hunters upon people who exercise any constitutional right. Perhaps a state wants to make it illegal to own a gun, or maybe it wants to allow bounty hunters to sue any Black family that sends its child to a predominantly white school — and the federal judiciary will simply stand back and let it happen. Realistically, the Court is unlikely to allow these sorts of attacks. But to spite abortion, the conservative majority was willing to open the door to them.
Jackson, moreover, was only the beginning of a Rumspringa of conservative excess led by the Court’s Republican-appointed majority.
In its just-completed term, the Supreme Court overruled Roe v. Wade, permitting states to ban abortions without having to resort to SB 8-style chicanery. It also overruled a seminal 1971 decision prohibiting the government from advancing one religious belief at the expense of others. It all but neutralized another half-century-old precedent permitting federal law enforcement officers who violate the Constitution to be sued. And the Court’s Republican majority dismantled two decisions protecting criminal defendants who were convicted or sentenced without adequate defense counsel, most likely condemning an innocent man to die in the process.
The Court endangered huge swaths of long-existing gun laws, striking down a New York state law that has been on the books for 109 years. And it did so in an opinion that simultaneously fetishizes the “Second Amendment’s plain text,” while ignoring the first thirteen words of that amendment.
The same Court that attacked Roe as “remarkably loose in its treatment of the constitutional text” saw no problem with ignoring half of the text of the Second Amendment.
In what may be the most consequential environmental case in decades, the Court relied on something called the “major questions doctrine” — a fairly new legal doctrine that is never mentioned in the Constitution or in any statute and that was invented entirely by judges — to strip the Environmental Protection Agency of much of its authority to fight climate change.
The Court even abandoned any pretense that it must be honest about the facts of the cases it decides, claiming that a public school football coach who ostentatiously prayed on the 50-yard line after games — while surrounded by players, spectators, and members of the press — was merely engaged in a “short, private, personal prayer.”
It was a singularly alarming Supreme Court term. The Court didn’t simply abandon longstanding legal rules, at times it seemed to abandon the rule of law altogether.
What is “the rule of law”?
I make a strong claim in this essay, arguing that the Supreme Court of the United States is no longer deciding many major cases in a way that is recognizably “legal.” So let’s start by establishing a baseline definition of what constitutes the rule of law and what it means for a judge to act consistently with this principle.
Societies that adhere to the rule of law must apply the same binding rules to all persons and institutions, including the state itself. According to the United Nations, these rules must be “publicly promulgated, equally enforced and independently adjudicated,” and the rule of law demands “equality before the law,” “legal certainty,” and “avoidance of arbitrariness.”
The late Justice Antonin Scalia offered one of the best explanations of how a judge can act consistently with the rule of law in a 1989 essay. “When, in writing for the majority of the Court, I adopt a general rule,” Scalia explained, “I not only constrain lower courts, I constrain myself as well.” Because “if the next case should have such different facts that my political or policy preferences regarding the outcome are quite the opposite, I will be unable to indulge those preferences.”
Scalia’s formulation captures the rule of equality before the law. If a judge applies a certain rule to Republicans, they must be comfortable applying it to Democrats as well. If they apply one rule to people who oppose abortion, they must apply the same rule to people who support abortion.
Similarly, Scalia’s formulation advances the values of legal certainty and non-arbitrariness. While there are extraordinary circumstances when the Supreme Court should overrule one of its previous precedents, lawyers and lawmakers should typically be able to look at the Court’s past decisions and be able to predict how the law will apply moving forward. When possible, the Supreme Court should hand down clear legal rules which enhance this predictability and that cannot easily be manipulated to hand down arbitrary decisions that favor some groups over others.
With these principles of equality, clarity, and non-arbitrariness in mind, let’s take a look at some of the Court’s recent decisions.
Whole Woman’s Health v. Jackson is one of the worst decisions in the Supreme Court’s history
There are a handful of Supreme Court decisions that legal scholars refer to as the “anti-canon,” decisions that were so poorly reasoned and monstrous in their consequences that they are taught to law students as examples of how judges should never behave. The anti-canon includes cases like the pro-slavery decision in Dred Scott v. Sandford (1857), the segregationist decision in Plessy v. Ferguson (1896), the anti-worker decision in Lochner v. New York (1905), and the Japanese-American internment decision in Korematsu v. United States (1944).
Whole Woman’s Health v. Jackson belongs on this list. It is, as Chief Justice John Roberts wrote in dissent, so thoroughly inconsistent with the idea that the Constitution binds every state government that it threatens to transform that document into a “solemn mockery.” Jackson introduces an intolerable amount of unpredictability and arbitrariness into US law, transforming the constitutional rights that every American should reasonably be able to rely upon into dust that can be blown away by a sufficiently clever state legislature.
So long as Jackson remains good law, no constitutional right is safe.
To understand why Jackson is so troubling and why it threatens literally all constitutional rights, it’s helpful to understand why Texas wrote this law to rely on private bounty hunters.
As a general rule, someone who believes that a state law violates their constitutional rights cannot sue that state directly in federal court. Under the Court’s decision in Ex parte Young (1908), however, they may sue the state officer tasked with enforcing an allegedly unconstitutional law. Thus, for example, if a state passed a law requiring state police to blockade abortion clinics, a plaintiff might sue the chief of the state police to block that law.
But SB 8, the anti-abortion law at issue in Jackson, attempts to cut state officers out of the enforcement process altogether. SB 8 provides that it “shall be enforced exclusively through ... private civil actions” that can be filed by anyone who is not a state employee.
It should be noted that Texas lawmakers did not actually succeed in writing a law that no Texas state official plays a role in enforcing. The plaintiffs in Jackson sued a Texas state judge who would hear lawsuits brought under SB 8, as well as the clerk of a Texas court charged with moving these cases through the courts. If Young means anything, these plaintiffs should have been allowed to move forward with their federal lawsuit.
But Gorsuch’s majority opinion in Jackson holds that these suits against Texas state judges and clerks may not proceed. That means there’s no way to obtain a federal court order halting SB 8.
In fairness, an abortion provider could have conceivably waited until they were sued in Texas state court for violating SB 8, and then argued that SB 8 violates Roe v. Wade in state court. But even if Roe were still good law, this defense is not adequate to protect abortion providers’ rights.
That’s because SB 8 doesn’t simply allow any person who is not employed by the state of Texas to sue an alleged abortion provider, it also permits a victorious plaintiff to collect a bounty of at least $10,000 from the provider. There is no upper limit to this bounty, and an alleged abortion provider who successfully defends against an SB 8 lawsuit can still be sued by other individuals hoping to collect the bounty.
Anyone suspected of performing an abortion that violates SB 8 could be hit by hundreds or even thousands of lawsuits. And they would either have to hire an army of lawyers to defend against these lawsuits or risk being ordered to pay a bounty that has no upper limit. Either option risks bankruptcy.
If taken seriously, moreover, Jackson permits states to use an SB 8-like structure to attack any constitutional right. A state might allow private bounty hunters to sue any journalist who publishes a news article that paints a Republican elected official in a negative light, or it might prohibit private citizens from criticizing the state’s governor. Shortly after Jackson was handed down, Democratic California Gov. Gavin Newsom threatened to sign a law permitting private bounty hunters to sue anyone who “manufactures, distributes, or sells an assault weapon.”
It remains to be seen whether this Court would apply its Jackson decision to a state law attacking the Second Amendment or other constitutional freedoms. But if the Court winds up applying Jackson only to constitutional rights that a majority of its members do not like, that’s an even worse outcome for the rule of law than if it applies Jackson’s anti-constitutional rule to every SB 8-style law that makes it through any state legislature.
The rule of law is the rule of equality; it means that the same rules must apply to liberal litigants as apply to conservatives.
The Supreme Court placed itself at the head of much of the executive branch of government
In its late June decision in West Virginia v. EPA, the Court effectively placed itself at the head of multiple executive branch agencies — above President Joe Biden — giving itself veto power over any regulation handed down by these agencies. In doing so, it fundamentally reshaped the US’s separation of powers.
Many federal laws lay out a broad overarching policy, then give an executive branch agency authority to implement that policy through binding regulations. West Virginia concerned a provision of the Clean Air Act, which requires certain power plants to use the “best system of emission reduction” that can be achieved with currently available technology, and then tasks the EPA with determining what the “best system” to reduce emissions may be at any given moment.
This way, as technology evolves to allow cleaner energy production, the EPA can issue new regulations requiring the energy industry to adopt these cleaner technologies, without Congress having to pass a whole new law.
West Virginia imposed an arbitrary new limit on EPA’s congressionally given authority, which appears nowhere in the Clean Air Act or in any other federal law. Under West Virginia, the EPA may not use its authority to encourage “generation shifting” — that is, requiring the energy industry to shift from particularly dirty methods of energy production, such as coal, and toward cleaner methods such as solar or natural gas. Instead, the EPA may only use its authority to require existing coal plants to install new devices or otherwise alter how they burn coal to produce energy.
To justify its policy judgment that generation shifting is not allowed, the Court’s six Republican appointees relied on something called the “major questions doctrine.” Under this doctrine, the Court explained in a 2014 opinion, “we expect Congress to speak clearly if it wishes to assign to an agency decisions of vast ‘economic and political significance.’” Thus, if a majority of the Court deems a regulation to be too significant, it will strike it down unless Congress very explicitly authorized that particular regulation.
But the Court has never fully articulated what causes a regulation to be so significant that it runs afoul of this doctrine, and, in any event, the doctrine comes from nowhere.
The Constitution does not mention this doctrine. Nor does any federal law. The Court has, in effect, given itself the power to veto any regulation issued by the executive branch of government, even when Congress broadly authorized an executive branch agency to regulate.
Until very recently, the justices avoided such encroachments upon the executive’s domain. As the Court explained in Mistretta v. United States (1989), “in our increasingly complex society, replete with ever changing and more technical problems, Congress simply cannot do its job absent an ability to delegate power under broad general directives.” Until a few years ago, the Court’s decisions urged judges to defer to federal agencies on nearly all policy-related questions.
The reasons for this deference were twofold. As the Court explained in Chevron v. Natural Resources Defense Council (1984), agencies typically have much greater expertise in the areas that they regulate than the judiciary. And federal agencies also have far more democratic legitimacy than unelected judges who serve for life. “While agencies are not directly accountable to the people,” the Court said in Chevron, agencies answer to a president who is accountable to the voters. And so “it is entirely appropriate for this political branch of the Government to make such policy choices.”
But now the Court has given itself the power to declare any regulation that it does not like to be a sin against the “major questions doctrine,” and in so doing to veto that regulation. That doesn’t just introduce far too much arbitrariness into federal law. It’s also an extraordinary transfer of power away from an elected branch of government and toward a judiciary staffed by unaccountable judges.
The Court does not behave as though it is bound by legal texts
The Second Amendment is unusual in that it states explicitly what purpose it is supposed to advance. It provides that “a well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.” As the Supreme Court held in United States v. Miller (1939), the “obvious purpose” of the Second Amendment was to “render possible the effectiveness” of militias, and the amendment must be “interpreted and applied with that end in view.”
Nevertheless, the Supreme Court held last month, in New York State Rifle & Pistol Association v. Bruen, that “individual self-defense is ‘the central component’ of the Second Amendment right,” and that gun regulations must be judged according to whether they undercut this atextual purpose.
I don’t think much more needs to be said about Bruen (although if you want to read a longer critique of Justice Clarence Thomas’s majority opinion in this case, I wrote that piece here). The Second Amendment’s text is crystal clear about why that amendment exists. But six Republican appointees on the Supreme Court believe the Second Amendment should have a different purpose. So they decided that the text of the Constitution does not matter. That is the very hallmark of an arbitrary decision.
And it’s not the first time this Court has disregarded legal text to reach a certain end.
About a year ago, in Brnovich v. DNC (2021), the Supreme Court invented a bunch of new limits on the Voting Rights Act — the landmark law prohibiting race discrimination in elections — that appear nowhere in the law’s text. As Justice Elena Kagan wrote in dissent, Justice Samuel Alito’s majority opinion in Brnovich “mostly inhabits a law-free zone.” No lawyer could have read the text of the Voting Rights Act and predicted the specific limits the Court placed on voting rights in Brnovich.
Similar things could be said about most of the Court’s recent voting rights decisions. In Shelby County v. Holder (2013), for example, the Court neutralized a provision of the Voting Rights Act that requires states with a history of racist election practices to “preclear” any new voting rules with federal officials before those practices can take effect. Shelby County rested on a so-called “‘fundamental principle of equal sovereignty’ among the States” that appears nowhere in the Constitution,
Indeed, the Constitution’s text indicates that Congress has broad power to decide how to protect voting rights. Its 15th Amendment provides that states may not deny or abridge the right to vote “on account of race, color, or previous condition of servitude,” and it gives Congress the power “to enforce this article by appropriate legislation.”
This year, the Court took similar liberties with voting rights law, handing down at least three “shadow docket” decisions that abridged the right of Black Americans to cast a vote that actually matters. In Merrill v. Milligan and Ardoin v. Robinson, the Court reinstated racially gerrymandered maps in Alabama and Louisiana that effectively cut Black voters’ electoral power in those states in half. And in Wisconsin Legislature v. Wisconsin Elections Commission, the Court struck down state legislative maps due to concerns that they may give too much electoral power to Black voters.
The Court provided little or no explanation for why it reached these decisions, but the common theme is that a majority of the justices voted to reduce Black electoral power in all three cases. And the Court plans to hear the Merrill case again in October — most likely so that it can permanently weaken the Voting Rights Act’s safeguards against racial gerrymandering.
The Court claims the power to decide what happened in the past
One other theme from this recent term is worth mentioning. In three major constitutional cases involving three very different provisions of the Constitution, the Court ruled that judges must look to historical practice when interpreting the nation’s founding document.
In the Bruen guns case, the Court held that “the government must demonstrate that the regulation is consistent with this Nation’s historical tradition of firearm regulation” if it wishes to defend a gun law against a Second Amendment challenge. In Dobbs v. Jackson Women’s Health Organization, the case overruling Roe, the Court declared that rights that are not specifically mentioned in the Constitution may only be protected by courts if they are “deeply rooted in this Nation’s history and tradition.” And, in Kennedy v. Bremerton School District, the praying coach case, the Court decreed that the provision of the First Amendment requiring separation of church and state “must be interpreted by ‘reference to historical practices and understandings.’”
One glaring problem with this approach to constitutional law is that history is contested, and even expert historians frequently disagree about the right way to interpret historical events. So this new historicism inevitably invites arbitrary and unpredictable decision-making by judges.
In the Bruen case, for example, both Thomas’s majority opinion and Justice Stephen Breyer’s dissent waste a simply mind-numbing amount of ink recounting centuries of gun laws stretching at least as far back as a 1328 law providing that Englishmen may not “ride armed by night nor by day, in Fairs, Markets.” In the end, the six Republican appointees conclude that this multi-century tour of English and American gun laws supports the policy outcome preferred by the Republican Party; and the three Democratic appointees look at the exact same history and conclude that it supports the policy outcome preferred by the Democratic Party.
Similarly, while Alito’s Dobbs opinion concludes that a right to abortion was “entirely unknown in American law” before the latter part of the 20th century, the Roe opinion reached the opposite conclusion, concluding that the historical practice was to allow abortions prior to “quickening” — “the first recognizable movement of the fetus in utero, appearing usually from the 16th to the 18th week of pregnancy.” At least some actual historians have argued that Alito is wrong and Roe was correct about this point.
In any event, I, like Samuel Alito, am a lawyer and not a historian. I, like Clarence Thomas, do not have a doctorate in history or any formal training in how professional historians resolve historical debates. I do not claim any ability to resolve what people in 1789 might have thought about laws banning assault rifles that didn’t yet exist, or whether the generation that ratified the 14th Amendment would have believed that mifepristone should be legal.
I will note, however, that the entire judiciary is staffed by lawyers and not historians, and that judges typically decide cases based on briefs authored by lawyers who are not historians. So the Court’s penchant for turning constitutional cases into debates over history is likely to produce a lot of bad history and a lot of bad law. It’s a bit like demanding that the nation’s public health policy be determined by a panel made up entirely of physicists.
And that’s assuming that these amateur historians, now tasked with determining whether the 17th-century jurist Sir Matthew Hale would have supported a ban on machine guns, are acting in good faith. Which brings us back to the Court’s factually challenged decision in Kennedy.
Recall that, in Kennedy, six of the justices couldn’t tell the difference between a “short, private, personal prayer” and a public spectacle even after they were confronted with photographic proof that Coach Kennedy decided to make a public spectacle of himself. If these judges are so loose with the facts of a well-documented event that occurred in 2015, imagine the liberties they may take with truly contested events that occurred nearly 250 years ago.
This Court has no sense of humility
Not so long ago, the Court had a very good solution to the problem that the meaning of legal texts — not to mention historical events — is often contested even by subject-matter experts operating in good faith.
Cases like Mistretta and Chevron counseled judicial deference to federal agencies because it is better for agencies accountable to a democratic president to resolve contested policy questions than to leave these questions to the one unelected branch of government. Other cases, such as United States v. Carolene Products (1938), warned that courts should typically defer to Congress when it was unclear whether the Constitution permits a particular law to stand. The advantage of this approach is that the people can always vote out a Congress that passed a bad law, but if the Court hands down a bad decision, there is often no solution other than a constitutional amendment.
The current Court hasn’t simply abandoned these doctrines of deference, it appears to be replacing them with new doctrines that don’t so much constrain judicial power as require judges to rely on historical sources when striking down laws that those judges don’t like. In cases involving federal agencies, that can mean the new doctrines require judges to use the magic words “major question” whenever they want to veto a regulation.
And this new era of judicial self-empowerment is only just beginning.
Abortion rights activists demonstrate at the Washington Monument. (photo: Jose Luis Magana/AFP/Getty Images)
ALSO SEE: The Limitations of
Joe Biden's Executive Order on Abortion
The rally aims to pressure President Joe Biden and his administration to declare a national public health emergency on the issue and take executive action to protect abortion rights.
Protesters started to gather in Franklin Square Saturday morning before heading to the White House in the afternoon.
The rally aims to pressure President Joe Biden and his administration to declare a national public health emergency on the issue and take executive action to protect abortion rights, according to The Women’s March.
The demonstration comes a day after Biden signed an executive order directing the Department of Health and Human Services to boost access to abortion pills and protect access to emergency medical care and family planning services, including various types of contraception, the White House said in a release.
The order also seeks to protect patients’ privacy and access to accurate information as well as promote the safety and security of patients, providers and clinics, the White House said.
An emergency declaration from Biden can unlock additional funds and resources to help local governments meet the demand for reproductive health services, according to the Women's March. It can also open the door for the federal government to leverage additional resources to curb the negative impact of abortion bans in certain states.
On Friday, Louisiana joined 9 others states, most of them in the South, that have outlawed abortions.
So far, Ohio, Tennessee, South Carolina and Florida have restricted access to abortions, but have not banned the procedure. Eight states have pending abortion bans that could go into effect later in the year.
Lawmakers in Pennsylvania, one of the 21 states where abortion is still legal, took the first step to amend the state constitution Friday, giving voters the choice to declare whether abortion should be a considered a constitutional right as early as next year.
Against this background, abortion rights advocates in Washington, D.C. have stepped up their efforts to press the Biden administration on abortion rights.
Instead of a mass march similar to the one organized in May following the leaked Supreme Court draft opinion overturning Roe, organizers of The Women’s March have described Saturday's demonstrations as a “targeted civil disobedience,” even hosting trainings for attendees ahead of the event in response to the increased likelihood of arrests.
1.
opener What happens if the Court rejects the rule of law?
The highest Court in the most powerful nation in the world appears to have decided that it only needs to follow the law when it feels like it.
Last December, for example, the Supreme Court handed down a decision that fundamentally alters the Union — giving states sweeping authority to restrict their residents’ constitutional rights.
At least, that’s what happened if you take the Court’s 5-4 decision in Whole Woman’s Health v. Jackson seriously. Jackson involved Texas’s anti-abortion law SB 8, which allowed “any person” who is not employed by the state to sue anyone they suspect of performing an abortion after the sixth week of pregnancy, and to collect a bounty of at least $10,000 from that abortion provider. The Court allowed that law to take effect, even though abortion was still considered a constitutional right at the time.
If you apply the logic from Jackson more broadly, any state could pass a law unleashing such litigious bounty hunters upon people who exercise any constitutional right. Perhaps a state wants to make it illegal to own a gun, or maybe it wants to allow bounty hunters to sue any Black family that sends its child to a predominantly white school — and the federal judiciary will simply stand back and let it happen. Realistically, the Court is unlikely to allow these sorts of attacks. But to spite abortion, the conservative majority was willing to open the door to them.
Jackson, moreover, was only the beginning of a Rumspringa of conservative excess led by the Court’s Republican-appointed majority.
In its just-completed term, the Supreme Court overruled Roe v. Wade, permitting states to ban abortions without having to resort to SB 8-style chicanery. It also overruled a seminal 1971 decision prohibiting the government from advancing one religious belief at the expense of others. It all but neutralized another half-century-old precedent permitting federal law enforcement officers who violate the Constitution to be sued. And the Court’s Republican majority dismantled two decisions protecting criminal defendants who were convicted or sentenced without adequate defense counsel, most likely condemning an innocent man to die in the process.
The Court endangered huge swaths of long-existing gun laws, striking down a New York state law that has been on the books for 109 years. And it did so in an opinion that simultaneously fetishizes the “Second Amendment’s plain text,” while ignoring the first thirteen words of that amendment.
The same Court that attacked Roe as “remarkably loose in its treatment of the constitutional text” saw no problem with ignoring half of the text of the Second Amendment.
In what may be the most consequential environmental case in decades, the Court relied on something called the “major questions doctrine” — a fairly new legal doctrine that is never mentioned in the Constitution or in any statute and that was invented entirely by judges — to strip the Environmental Protection Agency of much of its authority to fight climate change.
The Court even abandoned any pretense that it must be honest about the facts of the cases it decides, claiming that a public school football coach who ostentatiously prayed on the 50-yard line after games — while surrounded by players, spectators, and members of the press — was merely engaged in a “short, private, personal prayer.”
It was a singularly alarming Supreme Court term. The Court didn’t simply abandon longstanding legal rules, at times it seemed to abandon the rule of law altogether.
What is “the rule of law”?
I make a strong claim in this essay, arguing that the Supreme Court of the United States is no longer deciding many major cases in a way that is recognizably “legal.” So let’s start by establishing a baseline definition of what constitutes the rule of law and what it means for a judge to act consistently with this principle.
Societies that adhere to the rule of law must apply the same binding rules to all persons and institutions, including the state itself. According to the United Nations, these rules must be “publicly promulgated, equally enforced and independently adjudicated,” and the rule of law demands “equality before the law,” “legal certainty,” and “avoidance of arbitrariness.”
The late Justice Antonin Scalia offered one of the best explanations of how a judge can act consistently with the rule of law in a 1989 essay. “When, in writing for the majority of the Court, I adopt a general rule,” Scalia explained, “I not only constrain lower courts, I constrain myself as well.” Because “if the next case should have such different facts that my political or policy preferences regarding the outcome are quite the opposite, I will be unable to indulge those preferences.”
Scalia’s formulation captures the rule of equality before the law. If a judge applies a certain rule to Republicans, they must be comfortable applying it to Democrats as well. If they apply one rule to people who oppose abortion, they must apply the same rule to people who support abortion.
Similarly, Scalia’s formulation advances the values of legal certainty and non-arbitrariness. While there are extraordinary circumstances when the Supreme Court should overrule one of its previous precedents, lawyers and lawmakers should typically be able to look at the Court’s past decisions and be able to predict how the law will apply moving forward. When possible, the Supreme Court should hand down clear legal rules which enhance this predictability and that cannot easily be manipulated to hand down arbitrary decisions that favor some groups over others.
With these principles of equality, clarity, and non-arbitrariness in mind, let’s take a look at some of the Court’s recent decisions.
Whole Woman’s Health v. Jackson is one of the worst decisions in the Supreme Court’s history
There are a handful of Supreme Court decisions that legal scholars refer to as the “anti-canon,” decisions that were so poorly reasoned and monstrous in their consequences that they are taught to law students as examples of how judges should never behave. The anti-canon includes cases like the pro-slavery decision in Dred Scott v. Sandford (1857), the segregationist decision in Plessy v. Ferguson (1896), the anti-worker decision in Lochner v. New York (1905), and the Japanese-American internment decision in Korematsu v. United States (1944).
Whole Woman’s Health v. Jackson belongs on this list. It is, as Chief Justice John Roberts wrote in dissent, so thoroughly inconsistent with the idea that the Constitution binds every state government that it threatens to transform that document into a “solemn mockery.” Jackson introduces an intolerable amount of unpredictability and arbitrariness into US law, transforming the constitutional rights that every American should reasonably be able to rely upon into dust that can be blown away by a sufficiently clever state legislature.
So long as Jackson remains good law, no constitutional right is safe.
To understand why Jackson is so troubling and why it threatens literally all constitutional rights, it’s helpful to understand why Texas wrote this law to rely on private bounty hunters.
As a general rule, someone who believes that a state law violates their constitutional rights cannot sue that state directly in federal court. Under the Court’s decision in Ex parte Young (1908), however, they may sue the state officer tasked with enforcing an allegedly unconstitutional law. Thus, for example, if a state passed a law requiring state police to blockade abortion clinics, a plaintiff might sue the chief of the state police to block that law.
But SB 8, the anti-abortion law at issue in Jackson, attempts to cut state officers out of the enforcement process altogether. SB 8 provides that it “shall be enforced exclusively through ... private civil actions” that can be filed by anyone who is not a state employee.
It should be noted that Texas lawmakers did not actually succeed in writing a law that no Texas state official plays a role in enforcing. The plaintiffs in Jackson sued a Texas state judge who would hear lawsuits brought under SB 8, as well as the clerk of a Texas court charged with moving these cases through the courts. If Young means anything, these plaintiffs should have been allowed to move forward with their federal lawsuit.
But Gorsuch’s majority opinion in Jackson holds that these suits against Texas state judges and clerks may not proceed. That means there’s no way to obtain a federal court order halting SB 8.
In fairness, an abortion provider could have conceivably waited until they were sued in Texas state court for violating SB 8, and then argued that SB 8 violates Roe v. Wade in state court. But even if Roe were still good law, this defense is not adequate to protect abortion providers’ rights.
That’s because SB 8 doesn’t simply allow any person who is not employed by the state of Texas to sue an alleged abortion provider, it also permits a victorious plaintiff to collect a bounty of at least $10,000 from the provider. There is no upper limit to this bounty, and an alleged abortion provider who successfully defends against an SB 8 lawsuit can still be sued by other individuals hoping to collect the bounty.
Anyone suspected of performing an abortion that violates SB 8 could be hit by hundreds or even thousands of lawsuits. And they would either have to hire an army of lawyers to defend against these lawsuits or risk being ordered to pay a bounty that has no upper limit. Either option risks bankruptcy.
If taken seriously, moreover, Jackson permits states to use an SB 8-like structure to attack any constitutional right. A state might allow private bounty hunters to sue any journalist who publishes a news article that paints a Republican elected official in a negative light, or it might prohibit private citizens from criticizing the state’s governor. Shortly after Jackson was handed down, Democratic California Gov. Gavin Newsom threatened to sign a law permitting private bounty hunters to sue anyone who “manufactures, distributes, or sells an assault weapon.”
It remains to be seen whether this Court would apply its Jackson decision to a state law attacking the Second Amendment or other constitutional freedoms. But if the Court winds up applying Jackson only to constitutional rights that a majority of its members do not like, that’s an even worse outcome for the rule of law than if it applies Jackson’s anti-constitutional rule to every SB 8-style law that makes it through any state legislature.
The rule of law is the rule of equality; it means that the same rules must apply to liberal litigants as apply to conservatives.
The Supreme Court placed itself at the head of much of the executive branch of government
In its late June decision in West Virginia v. EPA, the Court effectively placed itself at the head of multiple executive branch agencies — above President Joe Biden — giving itself veto power over any regulation handed down by these agencies. In doing so, it fundamentally reshaped the US’s separation of powers.
Many federal laws lay out a broad overarching policy, then give an executive branch agency authority to implement that policy through binding regulations. West Virginia concerned a provision of the Clean Air Act, which requires certain power plants to use the “best system of emission reduction” that can be achieved with currently available technology, and then tasks the EPA with determining what the “best system” to reduce emissions may be at any given moment.
This way, as technology evolves to allow cleaner energy production, the EPA can issue new regulations requiring the energy industry to adopt these cleaner technologies, without Congress having to pass a whole new law.
West Virginia imposed an arbitrary new limit on EPA’s congressionally given authority, which appears nowhere in the Clean Air Act or in any other federal law. Under West Virginia, the EPA may not use its authority to encourage “generation shifting” — that is, requiring the energy industry to shift from particularly dirty methods of energy production, such as coal, and toward cleaner methods such as solar or natural gas. Instead, the EPA may only use its authority to require existing coal plants to install new devices or otherwise alter how they burn coal to produce energy.
To justify its policy judgment that generation shifting is not allowed, the Court’s six Republican appointees relied on something called the “major questions doctrine.” Under this doctrine, the Court explained in a 2014 opinion, “we expect Congress to speak clearly if it wishes to assign to an agency decisions of vast ‘economic and political significance.’” Thus, if a majority of the Court deems a regulation to be too significant, it will strike it down unless Congress very explicitly authorized that particular regulation.
But the Court has never fully articulated what causes a regulation to be so significant that it runs afoul of this doctrine, and, in any event, the doctrine comes from nowhere.
The Constitution does not mention this doctrine. Nor does any federal law. The Court has, in effect, given itself the power to veto any regulation issued by the executive branch of government, even when Congress broadly authorized an executive branch agency to regulate.
Until very recently, the justices avoided such encroachments upon the executive’s domain. As the Court explained in Mistretta v. United States (1989), “in our increasingly complex society, replete with ever changing and more technical problems, Congress simply cannot do its job absent an ability to delegate power under broad general directives.” Until a few years ago, the Court’s decisions urged judges to defer to federal agencies on nearly all policy-related questions.
The reasons for this deference were twofold. As the Court explained in Chevron v. Natural Resources Defense Council (1984), agencies typically have much greater expertise in the areas that they regulate than the judiciary. And federal agencies also have far more democratic legitimacy than unelected judges who serve for life. “While agencies are not directly accountable to the people,” the Court said in Chevron, agencies answer to a president who is accountable to the voters. And so “it is entirely appropriate for this political branch of the Government to make such policy choices.”
But now the Court has given itself the power to declare any regulation that it does not like to be a sin against the “major questions doctrine,” and in so doing to veto that regulation. That doesn’t just introduce far too much arbitrariness into federal law. It’s also an extraordinary transfer of power away from an elected branch of government and toward a judiciary staffed by unaccountable judges.
The Court does not behave as though it is bound by legal texts
The Second Amendment is unusual in that it states explicitly what purpose it is supposed to advance. It provides that “a well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.” As the Supreme Court held in United States v. Miller (1939), the “obvious purpose” of the Second Amendment was to “render possible the effectiveness” of militias, and the amendment must be “interpreted and applied with that end in view.”
Nevertheless, the Supreme Court held last month, in New York State Rifle & Pistol Association v. Bruen, that “individual self-defense is ‘the central component’ of the Second Amendment right,” and that gun regulations must be judged according to whether they undercut this atextual purpose.
I don’t think much more needs to be said about Bruen (although if you want to read a longer critique of Justice Clarence Thomas’s majority opinion in this case, I wrote that piece here). The Second Amendment’s text is crystal clear about why that amendment exists. But six Republican appointees on the Supreme Court believe the Second Amendment should have a different purpose. So they decided that the text of the Constitution does not matter. That is the very hallmark of an arbitrary decision.
And it’s not the first time this Court has disregarded legal text to reach a certain end.
About a year ago, in Brnovich v. DNC (2021), the Supreme Court invented a bunch of new limits on the Voting Rights Act — the landmark law prohibiting race discrimination in elections — that appear nowhere in the law’s text. As Justice Elena Kagan wrote in dissent, Justice Samuel Alito’s majority opinion in Brnovich “mostly inhabits a law-free zone.” No lawyer could have read the text of the Voting Rights Act and predicted the specific limits the Court placed on voting rights in Brnovich.
Similar things could be said about most of the Court’s recent voting rights decisions. In Shelby County v. Holder (2013), for example, the Court neutralized a provision of the Voting Rights Act that requires states with a history of racist election practices to “preclear” any new voting rules with federal officials before those practices can take effect. Shelby County rested on a so-called “‘fundamental principle of equal sovereignty’ among the States” that appears nowhere in the Constitution,
Indeed, the Constitution’s text indicates that Congress has broad power to decide how to protect voting rights. Its 15th Amendment provides that states may not deny or abridge the right to vote “on account of race, color, or previous condition of servitude,” and it gives Congress the power “to enforce this article by appropriate legislation.”
This year, the Court took similar liberties with voting rights law, handing down at least three “shadow docket” decisions that abridged the right of Black Americans to cast a vote that actually matters. In Merrill v. Milligan and Ardoin v. Robinson, the Court reinstated racially gerrymandered maps in Alabama and Louisiana that effectively cut Black voters’ electoral power in those states in half. And in Wisconsin Legislature v. Wisconsin Elections Commission, the Court struck down state legislative maps due to concerns that they may give too much electoral power to Black voters.
The Court provided little or no explanation for why it reached these decisions, but the common theme is that a majority of the justices voted to reduce Black electoral power in all three cases. And the Court plans to hear the Merrill case again in October — most likely so that it can permanently weaken the Voting Rights Act’s safeguards against racial gerrymandering.
The Court claims the power to decide what happened in the past
One other theme from this recent term is worth mentioning. In three major constitutional cases involving three very different provisions of the Constitution, the Court ruled that judges must look to historical practice when interpreting the nation’s founding document.
In the Bruen guns case, the Court held that “the government must demonstrate that the regulation is consistent with this Nation’s historical tradition of firearm regulation” if it wishes to defend a gun law against a Second Amendment challenge. In Dobbs v. Jackson Women’s Health Organization, the case overruling Roe, the Court declared that rights that are not specifically mentioned in the Constitution may only be protected by courts if they are “deeply rooted in this Nation’s history and tradition.” And, in Kennedy v. Bremerton School District, the praying coach case, the Court decreed that the provision of the First Amendment requiring separation of church and state “must be interpreted by ‘reference to historical practices and understandings.’”
One glaring problem with this approach to constitutional law is that history is contested, and even expert historians frequently disagree about the right way to interpret historical events. So this new historicism inevitably invites arbitrary and unpredictable decision-making by judges.
In the Bruen case, for example, both Thomas’s majority opinion and Justice Stephen Breyer’s dissent waste a simply mind-numbing amount of ink recounting centuries of gun laws stretching at least as far back as a 1328 law providing that Englishmen may not “ride armed by night nor by day, in Fairs, Markets.” In the end, the six Republican appointees conclude that this multi-century tour of English and American gun laws supports the policy outcome preferred by the Republican Party; and the three Democratic appointees look at the exact same history and conclude that it supports the policy outcome preferred by the Democratic Party.
Similarly, while Alito’s Dobbs opinion concludes that a right to abortion was “entirely unknown in American law” before the latter part of the 20th century, the Roe opinion reached the opposite conclusion, concluding that the historical practice was to allow abortions prior to “quickening” — “the first recognizable movement of the fetus in utero, appearing usually from the 16th to the 18th week of pregnancy.” At least some actual historians have argued that Alito is wrong and Roe was correct about this point.
In any event, I, like Samuel Alito, am a lawyer and not a historian. I, like Clarence Thomas, do not have a doctorate in history or any formal training in how professional historians resolve historical debates. I do not claim any ability to resolve what people in 1789 might have thought about laws banning assault rifles that didn’t yet exist, or whether the generation that ratified the 14th Amendment would have believed that mifepristone should be legal.
I will note, however, that the entire judiciary is staffed by lawyers and not historians, and that judges typically decide cases based on briefs authored by lawyers who are not historians. So the Court’s penchant for turning constitutional cases into debates over history is likely to produce a lot of bad history and a lot of bad law. It’s a bit like demanding that the nation’s public health policy be determined by a panel made up entirely of physicists.
And that’s assuming that these amateur historians, now tasked with determining whether the 17th-century jurist Sir Matthew Hale would have supported a ban on machine guns, are acting in good faith. Which brings us back to the Court’s factually challenged decision in Kennedy.
Recall that, in Kennedy, six of the justices couldn’t tell the difference between a “short, private, personal prayer” and a public spectacle even after they were confronted with photographic proof that Coach Kennedy decided to make a public spectacle of himself. If these judges are so loose with the facts of a well-documented event that occurred in 2015, imagine the liberties they may take with truly contested events that occurred nearly 250 years ago.
This Court has no sense of humility
Not so long ago, the Court had a very good solution to the problem that the meaning of legal texts — not to mention historical events — is often contested even by subject-matter experts operating in good faith.
Cases like Mistretta and Chevron counseled judicial deference to federal agencies because it is better for agencies accountable to a democratic president to resolve contested policy questions than to leave these questions to the one unelected branch of government. Other cases, such as United States v. Carolene Products (1938), warned that courts should typically defer to Congress when it was unclear whether the Constitution permits a particular law to stand. The advantage of this approach is that the people can always vote out a Congress that passed a bad law, but if the Court hands down a bad decision, there is often no solution other than a constitutional amendment.
The current Court hasn’t simply abandoned these doctrines of deference, it appears to be replacing them with new doctrines that don’t so much constrain judicial power as require judges to rely on historical sources when striking down laws that those judges don’t like. In cases involving federal agencies, that can mean the new doctrines require judges to use the magic words “major question” whenever they want to veto a regulation.
And this new era of judicial self-empowerment is only just beginning.
Donald Trump. (photo: Erin Schaff/NYT/Redux)
The ruling narrowing House Democrats’ demand for records from Mazars USA is likely to be appealed.
The fight is not over — both sides can still appeal the three-judge panel’s ruling to the full U.S. Court of Appeals for the D.C. Circuit or to the Supreme Court. But the decision marked a partial victory for each side over a subpoena issued in 2019 by the House Oversight Committee to Trump’s accounting firm, Mazars USA.
“We uphold the Committee’s authority to subpoena certain of President Trump’s financial records in furtherance of the Committee’s enumerated legislative purposes,” Chief Circuit Judge Sri Srinivasan wrote. “But we cannot sustain the breadth of the Committee’s subpoena.”
The panel was revisiting a matter that the U.S. Supreme Court returned to the lower courts for further proceedings in July 2020.
In a complex, nuanced 67-page opinion, Srinivasan interpreted how to apply the Supreme Court’s directive to “insist on a subpoena no broader than reasonably necessary to support Congress’s legislative objective.” The case deals with a largely unprecedented fight over how far Congress can go in investigating alleged corruption by the nation’s chief executive, and what protections former presidents retain from lawmakers’ probing after leaving office under the Constitution’s separation of powers.
Trump, who lost reelection in 2020 and is likely preparing another bid for the White House in 2024, was the first major party nominee in decades to refuse to release his tax returns, publicly criticizing the Internal Revenue Service for auditing him. Trump declined to divest himself of his business holdings, and while in office oversaw the government leasing agency for his flagship Washington hotel even as his businesses took in millions from both the federal government and foreign powers.
In response, congressional Democrats launched several efforts to investigate his finances, which Trump stonewalled. The House oversight committee demanded a host of information from Mazars about Trump and his business entities for an eight-year period spanning 2011 to 2018, saying his presidency exposed weaknesses in oversight that could be addressed only with the information. The committee said it sought the documents to corroborate testimony of former Trump lawyer Michael Cohen that Trump artificially inflated and deflated the reported value of his assets for personal gain.
Trump filed suit in May 2019 to block the release, arguing that he enjoyed absolute immunity from legislative inquiries and that House Democrats only wanted to expose his data for political gain.
In another case still pending appeal, Trump also opposed a House Ways and Means Committee demand to see six years of his federal tax records. After Trump left office, President Biden’s Treasury Department agreed that the records should be disclosed, and a federal judge appointed by Trump agreed last December. Trump has continued to fight the release as a private citizen.
The judges in Friday’s decision — Srinivasan and U.S. Appeals Court judge Judith W. Rogers — questioned during oral arguments late last year whether forcing a former president to share his financial information upon leaving office could have a “chilling effect” on all future commanders in chief, as Trump attorney Cameron Norris argued.
At the same time, Ketanji Brown Jackson — the third judge who heard arguments but who since has been elevated to the Supreme Court and did not participate in the opinion — voiced concerns about carving out long-lasting protections for presidents after they return to private life, undermining Congress’s authority.
In the end, Srinivasan navigated a middle ground, parsing the committee’s demand for three types of information — documents relating to Trump’s business and personal financial records with Mazars; records regarding the federal lease for Trump’s recently sold Trump International Hotel at the Old Post Office building in downtown Washington; and records related to legislation regarding the “foreign emoluments” clause of the Constitution, which bars presidents from accepting gifts from foreign nations.
The court said lawmakers could obtain Mazars records, source documents and engagement letters from 2014 through 2018, but only those that “reference, indicate, or discuss any undisclosed, false, or otherwise inaccurate information” about Trump’s reported assets, liabilities, or income, as well as any related communications that information was incomplete, inaccurate, or “otherwise unsatisfactory.”
The court also upheld the subpoena for documents related to his federal hotel lease spanning from Trump’s election in November 2016 through 2018, but only from the business that held the lease, Trump Old Post Office LLC. Finally, the appeals court agreed that the House could obtain all documents from 2017 and 2018 related to financial ties or transactions between Trump or a Trump entity and “any foreign state or foreign state agency, the United States, any federal agency, any state or any state agency, or an individual government official.”
The committee has “amassed detailed evidence of suspected misrepresentations and omissions” in Trump’s required disclosure forms, according to the court, and provided “detailed and substantial” explanations of how his financial disclosures, government contracts, and acceptance of foreign gifts as president could inform changes to federal law meant to protect taxpayers and police conflicts of interest among political officeholders.
“If the level of evidence presented by the Committee here does not suffice to obtain a narrowed subset of the former president’s information, we doubt that any Congress could obtain a President’s papers,” the judges wrote, adding that “requiring disclosures aimed at preventing Presidents from engaging in self-dealing and other conflicts of interest is assuredly a legitimate legislative purpose.”
“Former President Donald Trump displayed an unprecedented disregard for federal ethics and financial transparency,” House oversight committee Chairwoman Rep. Carolyn B. Maloney (D-N.Y.) said in a written statement. She said while it was “disappointing that the Court narrowed the subpoena in some respects,” she was pleased it “upheld key parts of the Committee’s subpoena, affirmed our authority to obtain documents from Mazars, and rejected former President Trump’s spurious arguments that Congress cannot investigate his financial misconduct.”
Trump attorneys with the Consovoy McCarthy law firm did not immediately respond to a request for comment Friday.
Friday’s ruling whittled down a similar August 2021 decision by the trial judge in the case. U.S. District Judge Amit P. Mehta limited documents lawmakers could obtain to a wider set of Trump’s personal financial records from 2017 and 2018, when he was president, and records related to his Washington hotel lease and legislation regarding the emoluments clause.
The courts acted after Chief Justice John G. Roberts Jr. in July 2020 upheld Congress’s authority generally to issue subpoenas for a president’s personal financial records, but ruled in a 7-to-2 opinion that congressional subpoenas seeking a president’s information must be “no broader than reasonably necessary” and returned the question to lower courts to work out the standard.
The case was not resolved before Congress’s term expired in January 2020, but the newly elected House, still under Democratic control, renewed its request in February 2021.
Griner pleaded guilty in a Russian court to what her supporters say are trumped-up charges of "large-scale drug possession" and "drug smuggling." (photo: CNN)
Pressure is growing on the Biden administration to help free U.S. basketball star Brittney Griner from Russian detention as Griner pleaded guilty Thursday in a Russian court to what her supporters say are trumped-up charges of “large-scale drug possession” and “drug smuggling.” Russian officials arrested the two-time U.S. Olympic basketball gold medalist and eight-time WNBA all-star in February at a Moscow airport after allegedly finding two vape cartridges containing cannabis oil in her luggage. We speak with two reporters covering the case, Dave Zirin and Maya Goldberg-Safir, who say Griner is an unlawfully detained political prisoner. “We can’t separate this case from the Russian war in Ukraine or from the fact that she is a Black lesbian being held by a prominently anti-gay regime,” says Goldberg-Safir. Zirin also criticizes the U.S. sports community, saying the lack of attention spotlighted on her case in part “reveals the tremendous and deep-rooted sexism and homophobia inside mainstream sports media.”
In an effort to clear a deal for her release, Brittney Griner pleaded guilty Thursday in a Russian court to what her lawyers say are trumped-up charges of “large-scale drug possession” and “drug smuggling.” This comes after Russian officials at the airport arrested the two-time U.S. Olympic basketball gold medalist and eight-time WNBA all-star in February at a Moscow airport, alleging they found two vape cartridges containing cannabis oil in her luggage. She had just arrived on a flight from New York to play for a basketball team in Russia, which nearly half of professional U.S. players do in order to supplement their income, since the WNBA’s maximum salary is capped at just under $230,000, the WNBA, women’s basketball.
Griner’s trial began last week. Russian officials have said they will only negotiate in her case after the trial is over. Brittney Griner told the court through an interpreter she had no intention of committing a crime, had acted unintentionally because she had packed her luggage in a hurry. Griner still faces conviction and sentencing and is set to appear in court again next Thursday.
As Brittney Griner was escorted to the courtroom in handcuffs, she held a photo of her wife Cherelle. This is Cherelle Griner speaking Wednesday at a “Bring BG Home” rally on the home court of the Phoenix Mercury, Griner’s team in the U.S.
CHERELLE GRINER: What and how I feel today is a deeper emotion than hurt. I’m frustrated. I’m frustrated that 140 days have passed since my wife has been able to speak to me, to our family and to her friends. I’m frustrated that my wife is not going to get justice. I know you all are frustrated, too. That’s why you’re here. This easily could be any one of us. So tonight I ask for your help in continuing to fight for BG’s safe and quick return home. Let’s make sure this administration knows that they have our support to do whatever is necessary and that we are not going to ever be quiet until she’s home safely.
AMY GOODMAN: This week, President Biden and Vice President Harris spoke with Cherelle Griner in their first one-to-one contact after Brittney Griner wrote a letter to Biden pleading for him not to forget about her. The call came more than two weeks after the State Department botched a plan to have the couple speak by phone on their fourth wedding anniversary. The White House Press Secretary Karine Jean-Pierre was asked about Griner’s case Thursday.
PRESS SECRETARY KARINE JEAN-PIERRE: We believe that the Russian Federation is holding — is wrongfully — has wrongfully detained Brittney Griner, and she is in intolerable circumstances right now. And we are going to do everything that we can. The president has this top of mind to make sure that we get Brittney home safely, and also Paul Whelan. That is an important — important priority of the president.
AMY GOODMAN: In April, Russia released of Trevor Reed, a former U.S. marine, as part of a prisoner exchange. After Thursday’s court appearance by Griner, the WNBA Players Association said in a statement it stands with Brittney Griner. Griner also got support from U.S. women’s soccer star Megan Rapinoe Thursday during the Presidential Medal of Freedom ceremony at the White House. As Rapinoe received the award, she wore a white blazer with the initials “BG” embroidered on her lapel alongside stitched flowers. Rapinoe shared the image online, writing, quote, “the most important part of today. BG We Love You.”
For more, we’re joined by two guests. Dave Zirin is host of Edge of Sports podcast, sports editor for The Nation, where his recent article is headlined “Brittney Griner’s Show Trial Begins.” Also with us, Maya Goldberg-Safir, co-director of the Third Coast International Audio Festival, a writer who’s been following Brittney’s case closely. Her latest article is headlined “Brittney Griner And The Labyrinth Of Wrongful Detainment.”
We welcome you both to Democracy Now! First, let’s start with Maya. Your response to this trial and the trial’s end, with Brittney pleading guilty — right? — to carrying these vape cartridges of cannabis oil, which would not be illegal in the United States, and what this means?
MAYA GOLDBERG-SAFIR: Thank you, Amy.
So, first, I think it’s incredibly important every time we talk about Brittney Griner’s case to first talk about the big issues at play here and be really blunt about it. She is wrongfully detained. It’s been 141 days. And what that means is that this case is political. This is not about justice. This is a case that is decided from above the court, from powers that be. The outcome of this trial is going to be whatever outcome is most favorable to Russia right now and the demands that they’re making on the U.S.
And one of the ways that we know that this is a wrongful detainment is because these charges are very clearly trumped up. You mentioned that the charge she is facing, for up to 10 years in prison, is large-scale possession of cannabis and drug trafficking. And the prosecution themselves have reported that they had found a fraction of a gram of cannabis in her luggage. How is 10 years in prison a deserved sentence?
So it’s really clear here that the legal system is actually being used as a weapon of the state, and this is actually a state-sponsored hostage situation. And as you said, they guilty plea could be a strategic move in an attempt to hasten the negotiations between the U.S. and Russia. What we know is that, no matter what, the outcome will be political, not legal.
AMY GOODMAN: Dave Zirin, you’ve long written that she is a political prisoner. The U.S. State Department said that she is being wrongfully detained. Can you talk also — both response to what’s happening now, Cherelle and the family thinking that her case was not top priority? I mean, you have this failed call that was supposed to go through, set up by the U.S. Embassy, but they didn’t staff the phone, so Brittney called it 21 times, and Cherelle didn’t get that call. Finally, you get Brittney Griner begging President Biden in a personal letter that was handed to him, saying that she is terrified she will be in Russia for the rest of her life. Talk about the significance of all of this, and also the possible prisoner exchange.
DAVE ZIRIN: Absolutely, let’s talk about both of those things. First of all, credit to Maya, who’s been on this story from the beginning.
I think what we have to understand, Amy, is that the sports world, there were two wings when Brittney Griner was first found to be effectively disappeared by the Russian criminal justice system. There was a wing that loved Brittney Griner so much, around the WNBA and basketball circles more generally, that they listened to the State Department give them awful advice to just be quiet for months, to not only not say a word, but to tell others to be quiet. I mean, I spoke to so many people in and around the WNBA who wanted to comment about Brittney, to call for her to come home, but were told that silence was the best option for a negotiation. It clearly was not.
And then there’s another wing of the sports world that did not love Brittney Griner nearly enough, and I’m talking about the mainstream sports world that would have raised heaven and hell to the earth if it had been, say, a Tom Brady or a Steph Curry who was behind bars facing 10 years in a Russian prison. And that reveals the tremendous and deep-rooted sexism and homophobia inside mainstream sports media.
Now, you asked about the idea of a prisoner exchange. I mean, the name that’s been floated greatly is a man named Viktor Bout, who is an arms dealer in U.S. custody who has the nickname in U.S. circles as the “merchant of death,” which is ironic because that phrase “merchant of death” actually comes to describe — its roots are in U.S. arm manufacturers from the 1930s. Now, Viktor Bout, this should be an easy —
AMY GOODMAN: I think it’s Viktor Bout [pron. Boot].
DAVE ZIRIN: Bout, I’m sorry. I’m sorry about that. The issue with Viktor Bout is that there are people in the Biden administration who think that that trade is actually too much for Brittney Griner and are trying to slow that idea. But I think one of the reasons they’re trying to slow it is that Viktor Bout was an arms dealer for the United States and for U.S. client states and played a big role in the era after 9/11 in terms of transporting Army contractors into the Middle East. So, perhaps they don’t want him out speaking about what he knows. But, to me, this would be an easy decision in terms of trading Viktor Bout and getting Brittney Griner home. But like I said, there are conflicts in the Biden administration about whether they want to do that.
AMY GOODMAN: And so, the significance, Maya, of who exactly Brittney Griner is, her power in sports right now? She herself — and you talked about this in our previous conversation — wrote a book about her own life, Life Out Loud, as an athlete, as a lesbian, as an African American lesbian. Talk about what that means and to have her held captive and the reason she’s played in Russia for so many years — what, more than eight years now — because of the lack of pay equity.
MAYA GOLDBERG-SAFIR: Brittney Griner is truly a trailblazer in sports. And I think that her story oftentimes goes overlooked. She was the first openly gay number one draft pick in the WNBA in 2013, and she really changed the game. She fundamentally changed the way that the league relates to its queer players and fans, coaches. And I think she has made an incredible impact on sports.
Now as she is being detained, I think we can’t separate this case from the Russian war in Ukraine or from the fact that she is a Black lesbian being held by a prominently anti-gay regime. And she faces dangers and, I think, has a specific target on her back because of that. And we see this, I think, when we see her paraded through the courthouse with multiple guards — there was a police dog at one point — handcuffed. And we also see this in even the U.S. media coverage, that is really narrowing in on the possibility of her guilt or hashing out the alleged crimes according to Russian media, reprinting their claims. I think this is not a fair or safe position for Brittney Griner to be in.
And what is most important, and what’s most important for U.S. reporting, as well, is to, up front, talk about the fact that she is wrongfully detained and that what is most important in this situation, when someone is being held hostage by a state in order to extract demands from the U.S., to extract concessions, is that the government do everything in its power to bring her home. And like Dave mentioned, when there is the possibility of a prisoner exchange on the table, but we know that there are people in D.C. who are opposed on principle and in policy, in informal policy opposed, to that kind of prisoner exchange, we have to wonder: Are they really doing everything they can to bring Americans wrongfully detained home, or are they actually holding up this process and contributing to the detainment of more than 60 Americans who are wrongfully detained right now around the world?
AMY GOODMAN: Griner’s detention, again, in Russia linked to this issue of pay equity, which came up Thursday when Megan Rapinoe became the first soccer player to receive the Presidential Medal of Freedom, a longtime member of U.S. women’s national soccer team, who helped it win two Olympic medals and two World Cup championships. She also joined with other members of the team in suing the U.S. Soccer Federation for gender discrimination in pay, medical care and workload, leading to a landmark $24 million settlement in February and the federation’s pledge to give the women’s national soccer team equal pay to the men’s team in all games and tournaments, including the World Cup. The U.S. women’s soccer team has won four World Cup titles, while the men’s team has won none. Now, keep in mind, Rapinoe is wearing a white blazer with white letters emblazoned on them, “BG,” for Brittney Griner. This is President Biden yesterday.
PRESIDENT JOE BIDEN: Megan did something really consequential. She helped lead the change for perhaps the most important victory for anyone on her soccer team or any soccer team: equal pay for women. Equal pay for women.
AMY GOODMAN: Now, we’re going to switch gears a little, because among the other people who received the Presidential Medal of Freedom Thursday during that ceremony at the White House was the seven-time Olympic gold medalist Simone Biles, the most decorated American gymnast of all time. This is President Biden.
PRESIDENT JOE BIDEN: Today she adds to her medal count of 32. I don’t know where you’re going to find room. Thirty-two Olympic and World Championship medals. At age 25, the youngest person ever to receive the Medal of Freedom. Youngest ever.
AMY GOODMAN: Simone Biles has also spoken out about mental health and sexual assault and is part of a group of some 90 women, including her U.S. fellow Olympic teammates, who have sued the FBI for a billion dollars in damages over its mishandled investigation into sexual abuse by the former U.S. Olympic team doctor Larry Nassar, who’s behind bars now. Most of the women say he abused them after he had already been reported to the FBI in 2015. Dave Zirin, you also have also been following Simone Biles and the women’s gymnastics team for years. Talk about the significance of this, I mean, Simone Biles, how important it is she is recognized, and at the same time she has this massive lawsuit against the FBI.
DAVE ZIRIN: Well, first and foremost, for folks who don’t know, Simone Biles is the greatest athlete of her generation and in the discussion for the greatest athlete of the last century. She does things in gymnastics that other people simply do not do. She has moves named after her that other people simply do not do. She is beyond the parameters of the sport itself.
That being said, she’s also a person of profound principle. And I really do believe, from everything I know about Simone Biles, she would give up that congressional medal that she received — or, the presidential medal, I’m sorry, that she received in a heartbeat, if it would mean that the Justice Department would do its job and actually go after the members of the FBI who let Larry Nassar perform acts of sexual abuse and sexual assault with impunity. That’s what the U.S. gymnastics women want. They want justice. And the only reason they’re going to civil court is that they’re not getting it through the Justice Department. And from everything I know about Simone Biles, I guarantee you she probably did not bite her tongue about that when she was around Biden officials the other day.
AMY GOODMAN: And we will continue to cover that case, as well. Dave Zirin, we thank you for being with us, sports editor for The Nation magazine, host of the Edge of Sports podcast, and Maya Goldberg-Safir, author of the new article in the Defector headlined “Brittney Griner And The Labyrinth Of Wrongful Detainment.” We will link to both your articles.
A United States Border Patrol agent on horseback uses the reins to try and stop a Haitian migrant from entering an encampment on the banks of the Rio Grande. (photo: Paul Ratje/AFP/Getty Images)
A 511-page internal report found “a lack of appropriate policies and training, and unprofessional and dangerous behavior.”
The report, which totaled 511 pages, said an investigation found “no evidence” that agents on horseback struck migrants with reins while patrolling the border near Del Rio, Texas. That finding contradicts what many—including President Joe Biden—believed at the time of the incident, which sent field agents to administrative duty and sparked an internal investigation.
“It’s horrible, what you saw. To see people like they did, with horses, running them over, people being strapped, it’s outrageous,” Biden said last September. “Those people will pay.”
While there was no whipping, the report doesn’t exactly clear the agents involved—or their supervisors—of wrongdoing.
Instead, the U.S. Customs and Border Patrol said in a statement that “failures at multiple levels of the agency, a lack of appropriate policies and training, and unprofessional and dangerous behavior by several individual agents” were uncovered during the investigation.
Border Patrol singled out one agent for using “derogatory and vulgar” language while also putting a child at risk with the horse he was mounted on.
“Hey! This is why your country’s shit. You use your women for this,” the agent, who was not identified, was heard yelling in one viral video captured by Al Jazeera.
Friday’s report said Border Patrol agents were not briefed on the agency’s objectives when they decided to help Texas officials maintain an influx of Haitian migrants crossing into the state last September.
Several of the migrants involved in the viral incident had already crossed the border into the U.S. and were issued tickets by Border Patrol that indicated they were awaiting processing, the report said.
The Haitians were given permission to buy food and supplies for their families in Mexico, the report said, and the group in the viral incident was simply returning with provisions when mounted agents swarmed them, which explains why so many were holding bags of food as they were corralled.
The report said these agents “used force or the threat of force to drive migrants back into the Rio Grande River despite the fact they were well within the territorial boundary of the United States.”
During a news conference Friday, Customs and Border Patrol Commissioner Chris Magnus said his agency has convened a review panel to determine disciplinary measures against four agents, but he declined to give specifics on what sort of punishment they could face.
“Not everyone’s going to like all the findings, but the investigation was comprehensive and fair,” Magnus said.
Protesters, many carrying Sri Lankan flags, gather outside the president's office. (photo: Dinuka Liyanawatte/Reuters)
The office of Prime Minister Ranil Wickremesinghe said the protesters forced their way into his Colombo home on Saturday evening. It wasn't immediately clear if he was inside at the time of the attack.
Wickremesinghe said earlier that he will resign only when all parties have agreed on a new government.
He was responding to a call by leaders of political parties represented in Parliament that he and President Gotabaya Rajapaksa quit, after tens of thousands of people trooped to the capital to vent their fury at the leaders they hold responsible for the nation's worst economic and political crisis.
"Today in this country we have a fuel crisis, a food shortage, we have the head of the World Food Program coming here and we have several matters to discuss with the IMF. Therefore, if this government leaves there should be another government," Wickremesinghe said in a voice statement.
But he made it clear he will not step down before a new government is formed, angering crowds that moved near his home to force him to leave office immediately.
Wickremesinghe said he suggested to the president to have an all-party government, but didn't say anything about Rajapaksa's whereabouts. Opposition parties in Parliament were currently discussing the formation of a new government.
Rajapaksa appointed Wickremesinghe as prime minister in May in the hope that the career politician would use his diplomacy and contacts to resuscitate a collapsed economy. But people's patience wore thin as shortages of fuel, medicine and cooking gas only increased and oil reserves ran dry.
Many protesters accuse Wickremesinghe of trying to save Rajapaksa when he came under pressure to resign and every other member of his powerful political dynasty quit the Cabinet.
Privately-owned Sirasa Television reported that at least six of their staff members including four reporters were hospitalized after they were beaten by police while covering the protest near Wickremesinghe's home.
Sri Lanka Medical Council, the country's top professional body, warned that the country's hospitals were running with minimum resources and will not be able to handle any mass casualties from the unrest.
The association said that the president, prime minister and the government would be held responsible if people died or were maimed. It urged the leaders to heed the cry of the people, resign and hand over the reins to an all-party government.
The crowds earlier Saturday broke into Rajapaksa fortified residence. Footage showed people in a jubilant mood taking a dip in the garden pool of the residence. Some lay on beds, others made tea and drank, and made "statements" from the conference room that Rajapaksa and Wickremesinghe must immediately quit.
It was not clear if Rajapaksa was inside his residence when it was stormed. A government spokesman, Mohan Samaranayake, said he had no information about his movements.
Leaders of political parties in Parliament met later and decided to request Rajapaksa and Wickremesinghe to step down, opposition lawmaker Rauff Hakeem said on Twitter. He said a consensus was reached that the parliamentary speaker should take over as temporary president and work on an interim government.
Sri Lanka's economy is in a state of collapse, relying on aid from India and other countries as its leaders try to negotiate a bailout with the International Monetary Fund. The economic meltdown has led to severe shortages of essential items, leaving people struggling to buy food, fuel and other necessities.
The turmoil has led to months of protests, which have nearly dismantled the Rajapaksa political dynasty that has ruled Sri Lanka for most of the past two decades.
The president's older brother resigned as prime minister in May after violent protests saw him seek safety at a naval base. Much of the public ire has been pointed at the Rajapaksa family, with protesters blaming them for dragging Sri Lanka into chaos with poor management and allegations of corruption.
At the president's seaside office, security personnel tried to stop demonstrators who pushed through fences to run across the lawns and inside the colonial-era building.
At least 34 people including two police officers were wounded in scuffles as protesters tried to enter the residence. Two of the injured are in critical condition while others sustained minor injuries, said an official at the Colombo National Hospital who spoke on condition of anonymity as he was not authorized to speak to the media.
Thousands of protesters entered the capital from the suburbs after police lifted an overnight curfew. With fuel supplies scarce, many crowded onto buses and trains to come to the city to protest, while others made their way on bicycles and on foot.
Protest and religious leaders called on Rajapaksa to step down, saying he has lost the people's mandate.
"His claim that he was voted in by the Sinhala Buddhists is not valid now," said Ven. Omalpe Sobitha, a prominent Buddhist leader. He urged Parliament to convene immediately to select an interim president but said that Wickremesinghe did not enjoy the people's support.
Last month, Wickremesinghe said the country's economy has collapsed. He said that the negotiations with the IMF have been complex because Sri Lanka was now a bankrupt state.
In April, Sri Lanka announced it is suspending repaying foreign loans due to a foreign currency shortage. Its total foreign debt amounts to $51 billion of which it must repay $28 billion by the end of 2027.
Police had imposed a curfew in Colombo and several other main urban areas on Friday night but withdrew it Saturday morning amid objections by lawyers and opposition politicians who called it illegal.
U.S. Ambassador to Sri Lanka Julie Chung on Friday asked people to protest peacefully and called for the military and police "to grant peaceful protesters the space and security to do so."
"Chaos & force will not fix the economy or bring the political stability that Sri Lankans need right now," Chung said in a tweet.
A fire burns in Sequoia National Forest, California. (photo: Noah Berger/AP)
A team was being sent to the Mariposa Grove to wrap some of the massive trunks in fire-resistant foil to protect them as the blaze burned out of control, said Nancy Phillipe, a Yosemite fire information spokesperson. More than 500 mature sequoias were threatened but there were no reports of severe damage to any named trees, such as the 3,000-year-old Grizzly Giant.
The cause of the fire was under investigation and the rest of the park remained open, though park cameras showed thick smoke hanging in the air around some of the park’s most iconic views.
The fire grew overnight but didn’t threaten any new areas, Phillipe said. It was proving difficult to contain, with firefighters throwing “every tactic imaginable” at it, she said. That included air drops of fire retardant as well as the planned use of bulldozers to create fire lines, a tactic that’s rarely used in a wilderness setting like Yosemite, Phillipe said.
The bulldozers would primarily be used to put in fire lines to protect the community of Wawona, which is surrounded by the park and home to several hundred people, she said. Evacuation orders were issued Friday for the community as well as the Wawona Campground, where about 600 to 700 people were staying in a campground, cabins and an historic hotel.
The giant sequoias, native in only about 70 groves spread along the western slope of California’s Sierra Nevada range, were once considered impervious to flames but have become increasingly vulnerable as wildfires fueled by a buildup of undergrowth from a century of fire suppression and drought exacerbated by climate change have become more intense and destructive.
Lightning-sparked wildfires over the past two years have killed up to a fifth of the estimated 75,000 large sequoias, which are the biggest trees by volume.
There was no obvious natural spark for the fire that broke out Thursday next to the park’s Washburn Trail, Phillipe said. Smoke was reported by visitors walking in the grove that reopened in 2018 after a $40 million renovation that took three years.
The grove, which is inside the park’s southern entrance, was evacuated and no one was injured.
The fire had grown to about 1.1 square miles (2.8 square kilometers) by Saturday morning.
A fierce windstorm ripped through the grove a year-and-a-half ago and toppled 15 giant sequoias, along with countless other trees.
The downed trees, along with massive numbers of pines killed by bark beetles, provided ample fuel for the flames.
The park has used prescribed burns to clear brush around the sequoias, which helps protect them if flames spread farther into the grove.
“When the unwanted fires hit those areas, it tends to slow the rate of spread and helps us gain some control,” Phillipe said.
In the Sierra foothills, 80 miles (128 kilometers) to the northwest of the Yosemite fire, some evacuation orders were lifted as containment grew to 72% on the Electra Fire, which broke out near Jackson on Monday. It temporarily forced about 100 people celebrating the July 4th holiday along a river to seek shelter in a Pacific Gas & Electric Co. facility.
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