27 June 23
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In the duel between the Wagner Group’s Yevgeny Prigozhin and Russian President Vladimir Putin, both men lost their nerve.
In an insane series of events over the weekend, Russian mercenary leader Prigozhin launched what appeared to be a coup against Putin’s regime, marching his Wagner Group mercenaries from their positions in Ukraine, where they had been fighting alongside the Russian military, into Russia. They seized control of Rostov-on-Don, a key military hub, before marching north to Moscow. Prigozhin and his troops met little resistance from the Russian military; he seemed poised to enter the capital and seize power. Nothing would stop him, he said, vowing that “we will go to the end.”
But his bravado didn’t last long. Just as Wagner forces were closing in on Moscow Saturday, Prigozhin suddenly reversed himself. He cut a deal with the Russian president, brokered by Alexander Lukashenko — Belarus’s autocratic leader and a close Putin ally — and announced that his troops would turn back. Prigozhin agreed to leave Russia and go into a sort of exile in Belarus, while Putin agreed to drop a charge of armed rebellion against Prigozhin and grant immunity to his men in connection with the rebellion. Some Wagner forces seem likely to be integrated into the Russian army.
It is still not certain what Saturday’s deal really means and whether it represents an end to the crisis or merely a short-term tactical shift in an ongoing duel between Prigozhin and Putin. But one thing is clear: Prigozhin lost his nerve on Saturday. He had a golden opportunity to seize power at a moment when Putin was surprised and vulnerable. The Russian military had many of its resources in Ukraine rather than Russia, and Wagner’s heavily armed forces had at least the potential to outgun the remaining Russian security services guarding Moscow.
But Prigozhin’s moment was fleeting. Now the odds are good that Putin will have his rival murdered. The Russian leader has had opponents thrown out of windows for far less. To think that Lukashenko, a Putin stooge, will protect Prigozhin in Belarus is madness. Moscow has a long reach; Putin has had plenty of opponents assassinated in the West, and Minsk, the capital of Belarus, might as well be a suburb of Moscow.
If Prigozhin believes Putin will abide by their deal, he isn’t thinking straight — which may be why he launched the coup attempt in the first place.
But Putin is a dead man walking, too, because his tenuous hold on power has now been exposed to the world. Prigozhin’s rebellion has revealed that Putin’s regime is a hollow shell and doesn’t really have a monopoly on violence in Russia.
On Saturday, Putin gave an angry national address, calling Prigozhin’s rebellion treasonous and “a stab in the back of our country and our people.” But just a few hours later, he negotiated the settlement with Prigozhin. Putin’s actions showed the Russian people and the rest of the world that when confronted by a powerful adversary, he will blink. That is certainly the lesson now being absorbed by leaders in Ukraine and at NATO.
Putin’s only play to remain in power may be to have Prigozhin murdered once he settles into exile in Belarus. Prigozhin, meanwhile, may be condemned to await his assassin, even as he wonders what might have been.
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Russian president Vladimir Putin. (photo: Mikhail Metzel/Sputnik/AP)
When Putin addressed the nation on Monday for the first time since the chaos of this weekend’s armed rebellion, he thanked the population for displaying “unity and patriotism” which he said clearly demonstrated that “any attempt to cause internal turmoil was doomed to fail.”
But the armed insurrection by the leader of the Wagner mercenary group has shattered the carefully crafted myth that was the cornerstone of Putin’s presidency — that he represented stability and strength — and many in the upper reaches of Russian politics and business wonder whether he can recover from it. Some even suggested that a search for Putin’s successor could be underway.
“Putin showed the entire world and the elite he is no one and not capable of doing anything,” said one influential Moscow businessman. “It is a total collapse of his reputation.”
“Games are being played that no one understands,” said a Russian official close to top diplomatic circles. “Control of the country has been partly lost.”
Members of the Moscow elite were grappling with how it had been possible for the renegade force of Wagner mercenaries to so easily seize control of the main command center for the Russian Army’s war in Ukraine in the southern Russian city of Rostov-on-Don without facing resistance, and then progress hundreds of miles along the road to Moscow before Yevgeniy Prigozhin, the leader of the Wagner Group, eventually decided to turn his troops back.
“How is it possible for them to drive tanks hundreds of kilometers north toward Moscow and not be stopped?” said an associate of a Moscow billionaire. “There was no resistance.”
“When you have columns of thousands of people marching and no one can stop it, the loss of control is evident,” said one Russian billionaire who, like others, spoke on the condition of anonymity because of fears of retribution.
Putin insisted in his address that all steps had been taken on his direct order to “avoid major bloodshed.” He explained that time had to be given to “those who made the mistake” to “recognize that their actions had been decisively rejected by society” and that what they were doing was leading to “tragic and destructive consequences for Russia.”
But questions persisted about how Putin could have allowed Prigozhin, a close associate since the 1990s, to escape charges for mounting an armed insurrection — in particular since his forces shot down helicopters and a military plane, and killed at least 13 Russian servicemen, according to Russian military bloggers. After halting his troops, Prigozhin moved to Belarus, from where, judging by an audio message he released on Monday, he intends to continue to operate his Wagner private mercenary group.
“This should be a terrorism case. These were very serious crimes,” said the first Moscow businessman. “But again, nothing has been done.”
Prigozhin insisted in the audio message posted on Telegram on Monday — his first statement since he agreed to halt his march on Moscow — that he was trying to ensure the survival of his Wagner Group and was not attempting to topple Putin. He said he feared his group would be subsumed by the Russian military and was trying to make sure those who committed “a huge number of mistakes” in the war in Ukraine would be punished. The Wagner leader’s verbal assaults on Russia’s military leadership, which he has been leveling for months, has exposed deep divisions within the Russian elite about the conduct of Putin’s war, as well as over the Russian president’s overall policies.
The events of the past few days “show the country is not heading in the right direction,” said Sergei Markov, a Kremlin-connected political consultant. “If nothing is changed, this will happen again for sure.”
Two Moscow business executives suggested Prigozhin’s mercenaries would not have been able to progress so far unhindered on the road to Moscow if part of the Russian security services had not been backing them. Chechen fighters dispatched to Rostov-on-Don did not appear to do anything, one of the Moscow businessmen said, and other forces sent to counter the Wagner forces blew up only one fuel station in Rostov while leaving another, much bigger one in Voronezh, further along the route to Moscow, intact. Those regular Russian forces only blew up one bridge, in an attempt to slow the insurrection’s progress.
“It was as if they were only acting to show the president they were doing something, but actually they were doing nothing, and the Russian president didn’t control anything,” the businessman said. Prigozhin’s battle over the leadership of the Russian armed forces could represent a deeper struggle within the Russia security services over the future Russian presidency, he suggested.
Most fateful for the Russian president’s image was his decision to strike a deal with Prigozhin rather than risk a potentially bloody battle if the Wagner leader’s men reached Moscow’s outskirts, where special forces were preparing to defend the capital, analysts and business executives said.
“For the elite, this is very problematic. Because from the point of view of optics, Putin looks weak and looks like a figure who got frightened and was forced to compromise,” said Tatiana Stanovaya, founder of the R.Politik, a Russian political consultancy now based in Paris. “But from a subjective point of view, Putin came out of the situation successfully for himself. The alternative was a serious bloody battle on the outskirts of Moscow, which would have been worse.”
Questions remained over whether the deal reached with Prigozhin will hold, with temptations high on both sides to renege on promises made “under condition of shock,” Stanovaya said.
Prigozhin’s rebellion “exposed many vulnerabilities in the regime,” Stanovaya added. “Putin will take this very seriously and will try to cover the weak points.”
But others said the clock was already ticking on his rule. Some in the Kremlin are “looking now for a successor, and if they look for too long, then someone else will find one for them,” said the Russian official, close to top Russian diplomatic circles, noting that the Ukrainian armed forces were already taking advantage of the chaos in Moscow to make progress in their counteroffensive.
“Ukraine has been pressing forward toward Dnipro, Kherson and Bakhmut. In 1917, mutiny happened and Russia lost the First World War and the regime fell. In 1991 Russia lost the Afghan war and the regime fell. If we lose the Ukraine war, the regime will fall and we won’t be able to get it back.”
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Abortion rights protesters chant during a Pro Choice rally. (photo: Sandy Huffaker)
Reading Dobbs in this way is appealing because it identifies a clear intellectual target and points to a straightforward political strategy, pitting liberal constitutionalism against conservative constitutionalism. But this simple interpretation misses the heart of the matter: The primary intellectual source of Alito’s opinion is not originalism but the legal scholar John Hart Ely, a self-professed liberal who taught at Yale, Stanford, and Miami, and who was one of the most cited constitutional law professors of the 20th century. Unlike Alito, Ely self-identified as neither a hardcore textualist nor an originalist. Upon his death, a glittering roster of mostly liberal legal elites—his colleagues—eulogized him as one of the rare figures who had transformed their legal imagination.
Yet it was Ely who argued, in a 1973 essay that Alito would later cite in Dobbs, that Roe was “not constitutional law at all” and “gave almost no sense of an obligation to try to be.” While the first citation in Dobbs is to Roe itself, the second is to Ely. By the third paragraph of the opinion, Alito is relying almost entirely on Ely’s contentions. Of the five factors the Dobbs court deploys in favor of overruling Roe—before even getting to its arguments based on originalism—at least four, and in particular the first two, rest primarily on Ely. Any assessment of Dobbs, and the increasingly conservative tilt of the court more generally, must therefore reckon with the legacy of Ely’s critique of Roe, and the opportunities for American constitutionalism it helped foreclose.
Ely attained his stature largely because many understood his magnum opus, Democracy and Distrust, as solving a central problem in constitutional law in the late 1970s and early ’80s: how to protect minority rights without engaging in judicial overreach. Democracy and Distrust is usually cited for its discussion of how judicial minimalism—the idea that judges should only interpret the law, while legislatures should make it—might be made compatible with the Constitution’s use of broad, sometimes imprecise language to protect rights. The book is part of a canon of legal theory that prides itself on being content-neutral.
Less often discussed is an awkward fact: Democracy and Distrust assumes that Roe is the paradigmatic example of a case worth overturning. The essay Alito cites, Ely’s 1973 “The Wages of Crying Wolf,” laid the foundations for his later book. And though Ely’s theory is taught independently from his criticism of Roe, the two cannot be disentangled. To Ely, Roe served as a red line, marking what did and did not count as legitimate constitutional law. This opened the door to subsequent criticism of Roe. A now-famous passage in Dobbs quotes a series of liberal law professors criticizing Roe; these quotations are in some respects selective or misleading, but they are not merely window dressing. As some have noted, when Dobbs overturned Roe, institutional liberal responses were at first surprisingly muted; many arguments in defense of Roe depended on respect for precedent more than substantive reasoning. Ely’s continuing influence is at least part of the answer as to why.
One might, of course, ask why we should take legal reasoning—let alone its intellectual roots—seriously at all right now, given that the court appears to be comfortable reaching whatever conclusion it wants whenever it wants. But this court is not interested in the outcomes of single cases alone. The conservative majority has greater ambitions: to impose its conception of the Constitution as the only legitimate framework within which to interpret the law. This matters even if one thinks litigation at the Supreme Court is, for the foreseeable future, a lost cause. Constitutional arguments matter not just inside but also outside courts. As the general rise of conservative constitutional ideology has demonstrated, they also matter in the long run as well as the short term. Aiming beyond even the vast powers of his immediate jurisdiction, Alito wants Americans who have different views than his own to think that they have no hope of marshaling the Constitution to their cause. And at this moment, little liberal constitutional theory stands in his way.
None of this was preordained. Roe is frequently discussed in light of the culture wars of the 1980s and ’90s. With these debates in recent memory, it is easy to cast Roe itself as controversial from the start: a flawed case with a troubled legacy. But this mistakes political agitation for unreliable legal footing. At the time it came out, Roe was understood by many—including the predominantly conservative Burger court, which decided Roe 7–2—as a predictable extension of legitimate and deep-rooted visions of constitutional law. For almost a decade after, Roe appeared to be on a trajectory similar to that of Brown v. Board. The decision was debated, but also soundly defended by eminent legal scholars. It seemed on track to become part of the corpus of constitutional thought: a case that lawyers had to reason within, not merely one tolerated as precedent. By the 1990s, however, it had become a sign of intellectual seriousness inside liberal legal circles to say that Roe was a bad case. Ruth Bader Ginsburg famously criticized the reasoning in Roe in a lecture she gave shortly before her own nomination to the court.
The question, in other words—and this is not just for those concerned with abortion rights, but for anyone concerned with both the court’s sudden swerve toward overturning precedent and the future of constitutional law in general—is not, as Alito and many others have tried to make it out to be, how anyone could miss what a terrible case Roe is. Rather, it is how and why so many legal scholars have taken Ely’s arguments so seriously for so long.
Ely raised a litany of objections to Roe. But fundamentally his argument boiled down to three claims, each of which would, in time, find its way into Dobbs. These formulations, which he first articulated in his 1973 essay and subsequently developed in his 1980 book, may seem abstract, even esoteric—the sort of argument that cannot be parsed without elite legal education. But they are, in fact, relatively straightforward.
First, and most famously, Ely argued that Roe was “substantive due process.” To Ely, this meant that, by definition, Roe’s right to abortion was fictitious—there was no grounding for it in the Constitution.
Ely’s critique relied on the idea that when courts use the 14th Amendment’s due process clause to enforce certain constitutional rights, they are confusing substantive and procedural rights. Substantive rights are conventionally understood as the rights one has in civil, political, and private life—rights to or against things—while procedural rights are about what one is entitled to during legal proceedings. The First and Second amendments are usually understood as substantive rights, for example, while the right to a jury trial is procedural. Roe, like several other cases, relies in part on the “liberty” protected by the due process clause—a “procedural” clause—while abortion rights, like many rights found in the Bill of Rights, are usually understood as “substantive” rights. As a result, Roe’s reasoning has often been labeled as substantive due process: It combines both substantive and procedural clauses of the Constitution. In itself, this is hardly a fatal critique: Legal scholars are not in the habit of criticizing the right to travel across state lines, which relies on a similar construction. Ely, however, argued that substantive due process was a tell, that courts are substituting their own “values” for “rights.” In other words, courts are inventing rights wholesale and, as a result, usurping the role of the legislature.
Second, Ely objected to the fact that in Roe, the Burger court drew together several provisions of the Constitution. Strikingly, his logic elided the fact that this was not unusual at the time, nor have other decisions that relied on the same doctrinal approach been singled out like Roe. Because the Bill of Rights is understood to have applied only against the federal government when it was drafted, any case protecting rights based on the first nine amendments must invoke the 14th Amendment if these rights are to apply against state legislatures (a process known as incorporation). For this reason, courts routinely combine the 14th Amendment’s due process clause and substantive rights based on single provisions in the Bill of Rights (for instance: gun rights or speech rights). Ely did not actively contest such cases, while, in sharp contrast, he objected vociferously to the use of the 14th Amendment in Roe.
What made Roe different was its reliance on Griswold v. Connecticut, which had famously found a right to privacy, which included the right not to become pregnant, among the First, Third, Fourth, and Fifth Amendments, as well as being further supported by the Ninth. Specifically, Griswold protected the availability of birth control to married couples, which was extended to unmarried couples a few years later, in Eisenstadt v. Baird. While Roe did not perform an extensive textual analysis of these provisions, by drawing directly on Griswold and other decisions with similar reasoning for its ruling, it effectively relied on this “inter-provision” reasoning by reference. This reasoning dovetailed with Roe’s use of the 14th Amendment—what Ely criticized as substantive due process—because Roe applied to the states, not the federal government. (It was state laws regulating abortion that were at issue.)
In other words, while Ely tolerated rights based on single provisions of the Bill of Rights in combination with the 14th Amendment, he disavowed Roe’s reliance on multiple provisions as creating fictitious fundamental rights. Alito’s reasoning in Dobbs follows suit: He concedes the possibility of a “privacy” right but countenances it only so long as it is attached to either the First or Fourth Amendment. He states, as though in shock, that Roe found abortion rights “to spring from no fewer than five different constitutional provisions.” One might take the fact that Roe relied on multiple constitutional provisions as proof of its overdetermination. But instead, Alito and Ely hold out the presence of inter-provision interpretation as evidence of intellectual weakness.
Third, Ely’s dismissal of Roe depends on his contention that abortion rights are not “political process” rights. Having made the idea that substantive due process was illegitimate a linchpin of his work, Ely argued that the only way to “save” cases that could be designated as such—including a swath of Warren court jurisprudence he was attached to—was to reinterpret them as about political process instead. In what would become his signal contribution to legal theory, Ely argued that courts could articulate these unnamed fundamental process rights so long as they aided minorities that—and here he borrowed from a 1938 opinion by Justice Stone—could be termed “discrete and insular.” With this distinction, Ely was able to recategorize as legitimate a host of civil rights cases that might otherwise be termed “substantive due process”: They fell within his newly constructed “safe harbor.”
Yet this safe harbor did not extend to women. In Ely’s view, because women have the right to vote, because they are numerically not a minority, and because, unlike in cases of segregation, men and women cohabitate, women did not fall within his rubric of people whose political power is compromised. Dobbs takes a leaf from Ely’s book in this respect: Alito uses women’s right to vote as evidence that the absence of abortion rights would place no unjustifiable burden on women as a political class. Ely avoided the question of gender relations, including their economic and power dynamics. He could thus deny that abortion access could be salient to the political process for women. At the same time, his logic affirmed political rights for fetuses, which he argued were discrete and insular minorities. Ely’s analysis therefore pointed in the direction of granting fetuses political personhood, as Dobbs would later gesture toward as well.
Why did Ely seem so intent on negating the right to abortion? Ely claimed that his work was dictated by the demands of legal theory. In fact, he contended, his willingness to criticize Roe was actually evidence of his intellectual integrity, not cause for question. He regularly stated that, in theory at least, he supported abortion rights, if legislatures wanted to provide them. Yet, clearly, he was also motivated by ambition: In the legal academy of the 1970s, to argue against the grain on what seemed, at least for the time, a settled issue allowed him to position himself as willing to face hard truths for the sake of legal rigor. The moral complexity of abortion and the relative marginality of women in the legal academy helped to ensure that he risked little reputational damage in doing so. While many of his colleagues thought he was wrong on the law, they debated him in the spirit of amicable collegiality.
None of this, however, explains how Ely’s ideas came to determine the scope of constitutional law. Ely’s—and Alito’s—views were hardly destined for dominance. By 1973, when Roe was decided, courts had spent the previous 30-plus years articulating constructions of the Constitution that demanded more robust individual rights. These ranged from new criminal procedure requirements and the suspension of the death penalty to First Amendment, equal protection, contraceptive, and voting rights. Notably, this also included the articulation of a constitutional right to privacy. This sea change is often attributed to the Warren court’s tenure, which began in 1953 and ended in 1969. But it had deeper roots: Among other things, the early 20th century legal giants Oliver Wendell Holmes, Louis Brandeis, and Hugo Black all argued repeatedly that robust individual rights held against state as well as federal power are integral to both the structure and continued existence of constitutional law.
This expansion of rights prompted criticisms—parts of which Ely later marshaled in his arguments against Roe. Some of these criticisms were in good faith; others, less so. What united those that rose to prominence—something a young Ely no doubt observed—was how they anchored their authority in the aspiration to neutrality. In 1954, in Brown v. Board, the court had invalidated legislation in order to demand that states desegregate. While supportive of Brown, the legal scholar Alexander Bickel warned—via what he famously termed “the countermajoritarian difficulty”—that courts should be especially careful when invalidating legislation, lest legislatures flout their rulings and show courts to be powerless. Because we take legislation as representative of the will of the majority, courts are required to show legislation a degree of deference. They must justify themselves when they invalidate law in the name of constitutional rights. Ely would later claim that he was solving the countermajoritarian difficulty in Democracy and Distrust, by providing a nonpolitical way to decide which rights deserved “fundamental” protections sufficient to override legislation in this way.
The leading constitutional law professor Herbert Wechsler, meanwhile, insisted that Brown—and thus court-ordered desegregation—was illegitimate because it violated the First Amendment’s free-association clause. What courts needed to do instead, Wechsler famously claimed, was to deploy “neutral principles” of interpretation. Ely’s “political process rights” would similarly be informed by the search for “content-neutral” legal reasoning.
Yet by the early 1970s, criticism of the new jurisprudence had failed to gain serious traction—not only with respect to racial equality, but also when it came to privacy rights. Leading up to Roe, the famous textualist Justice Hugo Black critiqued the justification for privacy rights used in Griswold. Lodging 1 of 2 dissents in that case, Black essentially argued that, because the word “privacy” is not in the Constitution, judges could not infer its existence as a right. But Black died in 1971, and his dissent in Griswold remained marginal. It did not stand in the way of the court’s decision two years later in Roe. (In any case, it’s worth noting that Black’s underlying logic in his Griswold dissent is not in line with Dobbs. Black was a textualist but also a fierce advocate of individual rights. And though conservatives today frequently try to claim him as their own, Black dissented in Griswold at least in part to avoid resurrecting “ordered liberty,” the doctrinal test that the Dobbs court relies on.) Wechsler’s “neutrality critique” of desegregation, in the meantime, had been put to rest by Charles Black’s 1971 foreword about Brown in the Harvard Law Review, which pointed out that legal fiction—that “separate” could ever mean “equal”—could not trump legal reality.
In the end, it was none other than Robert Bork, the conservative legal scholar who would go on to be rejected, famously, as a candidate for the Supreme Court, who laid the groundwork for Ely’s early writing on Roe. Bork had also taken note of Wechsler’s work: His 1971 article “Neutral Principles and Some First Amendment Problems,” written in a fit of animus against what he saw as the excesses of sexual liberation, repurposed Black’s textualism and rehabilitated Wechsler’s neutrality. Fatefully, he used both as a weapon against privacy and substantive due process instead of desegregation.
Bork condemned Griswold—Roe’s precursor—as the height of judicial overreach, crafting two important arguments that Ely would later reproduce. First, Bork argued that if one allows for Griswold, one has to allow for Lochner v. New York, the universally maligned 1905 case that struck down maximum-hours protections for low-wage bakers. Lochner was a substantive due process case. It was based on what the court called “the right to contract,” and the Lochner court contended that this right existed in the 14th Amendment. Because neither the words “right to contract” nor “privacy” are in the Constitution, and because Griswold was superficially similar to Lochner, inasmuch as both relied on the 14th Amendment, Bork argued that Lochner was analogous to Griswold. Both, he argued, simply invented rights.
Second, Bork drove a wedge between “substantive due process” and “equal protection” cases. A significant number of the new cases, including many that functionally furthered desegregation, had been decided on bases other than the equal protection clause alone. Several used inter-provision reasoning similar to that in Griswold—for instance, by combining the due process and equal protection clauses. Still others understood the scope of the equal protection clause and the First Amendment to include voting rights and privacy rights, respectively. Bork denigrated virtually all of these cases as substantive due process. Meanwhile, he conceded that formal desegregation based on the equal protection clause—Brown, in effect, if not its reasoning—was legitimate. In doing so, he offered liberals a concession they had already won. Prefiguring both Ely and Alito, Bork used substantive due process as a label for doctrine that required both inter-provision interpretation and the 14th Amendment (what Griswold and most privacy cases draw on). Bork thus managed to conflate complexity (more steps) with weakness (“not constitutional law”). Not coincidentally, the argument managed to draw a dividing line between race and gender, and sidelined class too.
Bork’s formulations would prove invaluable to Ely, a 35-year-old Yale Law School professor and Bork’s junior colleague: more likely than not, they are what allowed him to draft his essay “The Wages of Crying Wolf” almost immediately after Roe came out. Swapping Roe for Griswold, Ely relied on the linkages Bork drew between Lochner, substantive due process, and privacy for the core of his criticism. Further, Ely’s idea of political process rights—though still in its infancy in this essay—mirrored the structure of Bork’s equal protection exception. This allowed Ely to argue he wasn’t against newly recognized rights; he was simply rigorously testing their basis.
Ely’s essay was more eye-catching than Bork’s, partly because his liberal bona fides (which he made it a point to announce) made it counterintuitive. Coming at a time when criticism of Roe hardly seemed likely to make any direct impact, “The Wages of Crying Wolf” owed much of its salience to its author’s willingness to buck liberal celebrations of Roe.
The legal reasoning in the essay, however, is cavalier, and its style is distinctive. Ely’s opening gambit asserts that, rather than law, Roe creates “values—or whatever.” Ely expressly and repeatedly analogizes sodomy (which remained illegal) to abortion. A key passage compares prohibitions against both sodomy and abortion as “cramp[ing] the life style” of the “homosexual” and the “mother” alike. On what would become his signature contribution to the field of legal theory—the revival of Stone’s concept of the “discrete and insular minority”—he writes: “I’m not sure I’d know a discrete and insular minority if I saw one, but confronted with a multiple choice question requiring me to designate (a) women or (b) fetuses as one, I’d expect no credit for the former answer.” In such passages, it is hard to tell what Ely takes less seriously—the people affected by the laws he is discussing (in this case, women) or the demands of legal analysis. His cadence might best be described as that of a law professor attempting to imitate J.D. Salinger. Substituting condescension for argument, Ely’s essay reads like a stunt, not a serious undertaking.
This stylistic approach garnered Ely attention, even fans. But serious logical flaws hobbled the essay’s appeal. From the outset, Ely’s equation of Roe and Lochner was far less stable than he made it appear. Because Roe relied on Griswold’s inter-provision interpretation, and Lochner was based only on the 14th Amendment, Roe was not clearly analogous to Lochner. The problems with the analogy were evident from the lengths Ely went to to elide them. Soon after his essay was published, Ely began to use “Lochnerize” (to impose made-up substantive due process law) as a verb. Just as Bork had done with Griswold, Ely’s attempt to equate Roe with Lochner was an effort to make Roe unacceptable by association. As a rhetorical gesture, this worked: We use “Lochnerize” today to refer to making up things in the law.
Regarding the legal matter, Ely was far less successful—at first. His peers pointed out problems with Ely’s arguments for the remainder of the decade. First, it was possible to persuasively defend Roe’s logic, as Laurence Tribe did in the Harvard Law Review foreword in 1973. Second, as Stanford Law professor Thomas Grey noted a few years later, the distinction between “substance” and “process” that critics of substantive due process depend on breaks down on close inspection. Finally, as Grey also pointed out, it’s not even clear that the reason Lochner was a bad case was because it was substantive due process. Lochner’s misuse of the word “liberty,” in other words, is more like Citizens United’s contortions around the term “person” than it is like Roe. Throughout the 1970s, these and other weaknesses meant Ely’s essay was mostly refuted or ignored. (In recent years, scholars including Reva Siegel, Pamela Karlan, and Samuel Moyn have called renewed attention to flaws in Ely’s thinking.)
Had Ely not reformulated his essay more than half a decade later, it might have ended there. In 1980, however, Ely tempered his language and refined his argument. Democracy and Distrust is dedicated to the much-lauded liberal Chief Justice Earl Warren. No longer framed as a critique of Roe, Ely presented his arguments as the solution to Bickel’s countermajoritarian difficulty, the problem of how judges should decide cases that pit the constitutional rights of individuals against presumptively majoritarian legislation. Further, Ely argued that he had squared the circle between textualists’ desire for clear constitutional rights (largely a conservative demand) and the way that broad, textually enshrined constitutional provisions, such as the Ninth Amendment, supported (mostly liberal) demands for interpretation. Still leveraging his liberal credentials to frame his legal analysis, this time Ely positioned himself not as an entertainingly provocative young scholar but as the reasonable defender of progressive rights, reliable precisely because he put principle over party. In part because it was framed as such, Ely’s work became a liberal lodestar. Not coincidentally, the way in which the legal academy interpreted Roe shifted as well.
The important thing to realize about Roe is that, as a legal matter, none of the problems frequently posited—its moral difficulties, countermajoritarianism, the contention that it is like Lochner—are impossible to solve. Even the oft-cited difficulties around the viability test—the dividing line between a woman’s right and a state’s interest that marks when prohibiting abortion becomes constitutional—usually boil down to a repackaged argument that privacy rights don’t exist. Such complaints suggest that Roe doesn’t have a constitutional theory. But Roe did have a positive theory. It built on Griswold and a host of other cases. In doing so, Roe protected the indivisible connection between privacy and women’s liberty. Further, most of these decisions were engaged in a similar endeavor: explicating how rights relate to one another, and why the structure of constitutional law requires some unenumerated rights in order to function. Roe’s underlying commitment to inter-provision interpretation, moreover, protected and built on a framework that justified more than just reproductive rights. It also undergirded cases with far-reaching redistributive implications, in particular those in which the court invalidated state laws for effectively discriminating on the basis of wealth.
By the 1980s, however, the Reagan Justice Department was ascendant, and the intellectual tide was turning against such interpretations. In the face of political headwinds, Ely offered liberals an argument with which they could theoretically safeguard at least part of the case law they were attached to—primarily racial equal protection rights and some election law—without being accused of being “unreasonable” or “activist.” Essentially, his bargain was this: Keep a limited set of precedents in a safe harbor called “discrete and insular political process rights,” but, by dispensing with Roe, give up the fundamental logic that had actually animated many of those rights in the first instance. Because Ely offered a general framework for constitutional law—one that appeared to “save” cases liberals were attached to while also “demonstrating” that he took seriously the concerns of conservative legal theorists—his work became an essential part of the architecture of liberal constitutional thought.
Why didn’t more legal scholars insist on revealing these problems with Ely, or on advancing the interpretive possibilities Roe presented? Prefiguring challenges we face today, center-to-left legal opinion fragmented. Leading lights of the critical legal studies movement, like Duncan Kennedy, doubled down on the point critics of Roe were making. Starting from what “conservative critics of the Warren Court have taught us,” Kennedy “rejected the attempt to distinguish” Lochner and Roe. In doing so, Kennedy played into the hands of conservatives.
Many feminist legal scholars defended Roe, but others argued that women’s rights were better bolstered through logic that excluded it. Some, like Catharine MacKinnon, viewed privacy as neo-coverture: a patriarchal space that only reinstated gender inequality. Others thought equal protection doctrine seemed the more pragmatic (if limited) route to gains in women’s rights. Still others hoped that equal protection litigation could deliver bold and lasting change.
Mainstream liberals, meanwhile, were by and large happy to let abortion rights become a “women’s question” rather than a central issue in constitutional interpretation. In a Harvard lecture in 1980, for example, the liberal lion and D.C. Circuit Judge James Skelly Wright defended both racial equality and economic rights under what he called a “creative implementation of the equal protection clause.”* Yet while Wright respected “core privacy rights” as precedent, he advised against pursuing any grounds other than equal protection for constitutional rights going forward. To do otherwise, he said, recalling Ely almost verbatim, would risk “judges imposing their own views on the citizenry on the pretext of enforcing the Bill of Rights or the Fourteenth Amendment.”
By the mid-1980s, adopting the language of “neutrality” had come to mean abandoning Roe. The ascendancy of Ely’s argument reached its dénouement in the early 1990s. Even Ruth Bader Ginsburg, who by no means wished for Roe to be overturned, found the opinion too broad, and criticized the fact that it was based on privacy rather than on equal protection grounds. During her nomination to the court, Ginsburg’s friends had to call to the White House to explain that she was most certainly not an opponent of the decision. In the eyes of supporters of women’s equality and abortion rights, her nomination signaled progress. But it also masked how thin—even self-defeating—the fundamental logic of liberal jurisprudence had become. At the same time as she was confirmed to the court, Ginsburg’s adherence to the idea that Roe was a bad case was also arguably a prerequisite of being taken seriously inside the academy—certainly in the legal academy in which Ginsburg had been educated.
The problem with relying on equal protection, as Ginsburg proposed, is that at the time Roe was decided, doing so would have undercut the case. Despite subsequent advances in equal protection doctrine, the protection it afforded women remains far less than that available as a “fundamental” right—the right to privacy. Meanwhile, relying on equal protection, or hoping for the eventual promotion of women’s equal protection rights’ to “fundamental” status via the passage of the Equal Rights Amendment or an equivalent doctrinal change, undercut liberals’ ability to defend Roe. It would require political conditions decades in the future to make Dobbs possible. But by this point, the interpretive die had already been cast. Although the 1992 decision Planned Parenthood v. Casey offered a measured reaffirmation of Roe, its logic was primarily anchored in Roe’s status as precedent. Not even Casey’s restatement of Roe could undo the harm Ely had done to its legitimacy.
Citing the moral complexity of abortion rights, some would rather avoid the matter—never mind that someone else will interpret the law instead. Many others have called for a political—not interpretive—response to the end of Roe, since they see constitutional interpretation as the same thing as federal courts, and those, for obvious reasons, as a dead end. Such an approach focuses on state law, Congress, and executive action. To some extent, this has borne fruit. Without a response rooted in constitutional interpretation, however, Alito’s opinion, and others like it, will ultimately reign supreme. The past year has shown how new restrictions on abortion severely affect the lives of countless Americans; but beyond this, Dobbs also has implications for a much broader swath of law.
If there is a future for constitutional law that exists outside what this court has constructed, it cannot exist in half measures. The constitutional proceduralism of the 1980s has left liberals and progressives with little constitutional capacity to defend Americans’ rights. It has also meant that, as Democrats head into the 2024 election season, they have not agreed on a constitutional—rather than moral—argument for why abortion and related rights are more than merely majoritarian preferences. Liberals will need to build a coherent set of constitutional arguments with which to combat the jurisprudence set forth by this court. Doing so, however, will require them to break with the paradigm that Ely created.
Following Ely, through a combination of political expediency, professional opportunity, and personal prejudice, the legal academy abandoned Roe. If liberals want to build a constitutional politics that gets around Dobbs, and indeed, one capable of saving existing constitutional rights, they will have to abandon Ely instead.
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Donald Trump. (photo: Erin Schaff/NYT/Redux)
Each track poses potential legal peril for those under scrutiny, but also raises tricky questions about where the line should be drawn between political activity, legal advocacy and criminal conspiracy.
A key area of interest is the conduct of a handful of lawyers who sought to turn Trump’s defeat into victory by trying to convince state, local, federal and judicial authorities that Joe Biden’s 2020 election win was illegitimate or tainted by fraud.
Investigators have sought to determine to what degree these lawyers — particularly Rudy Giuliani, Jenna Ellis, John Eastman, Kurt Olsen and Kenneth Chesebro, as well as then-Justice Department lawyer Jeffrey Clark — were following specific instructions from Trump or others, and what those instructions were, according to the people familiar with the matter, who like others interviewed for this article spoke on the condition of anonymity to describe an ongoing investigation.
Special counsel Jack Smith’s team has extensively questioned multiple witnesses about the lawyers’ actions related to fake electors — pro-Trump substitutes offered up as potential replacements for electors in swing states that Biden won.
The Washington Post has reported that Giuliani, a personal attorney for Trump who took over his campaign’s legal efforts after the 2020 election, coordinated the fake-elector effort. Ellis helped him urge state legislatures to reject certified Biden results, while Eastman argued to Trump that Vice President Mike Pence could accept alternate slates when certifying the electoral votes on Jan. 6, 2021. Chesebro wrote several memos on the fake-elector strategy. Olsen urged lawsuits to overturn the election results in several states, and Clark pressed Trump’s fraud claims from within the Justice Department.
Trump’s allies have argued that there was nothing criminal about preparing alternate electors in case they were needed.
Giuliani, Ellis, Clark, Eastman, Chesebro and Olsen or their representatives either did not respond to requests for comment or declined to comment Monday.
Smith, a longtime federal prosecutor who was appointed special counsel by Attorney General Merrick Garland in November, charged Trump this month with 37 counts alleging that he willfully retained classified documents at his Florida residence after leaving the White House and obstructed government efforts to retrieve them.
Garland also put Smith in charge of a separate investigation of efforts to overturn the election results. That probe appears to be focused on fraud-related charges, according to subpoenas reviewed by The Post and interviews with witnesses, lawyers and others familiar with evidence being presented to a federal grand jury in Washington.
The special counsel’s office did not respond to a request for comment Monday. Its election-focused probe is separate from the Justice Department’s prosecution of people directly involved in the Jan. 6, 2021, riot at the U.S. Capitol, which has yielded hundreds of convictions, including for seditious conspiracy. And it is independent of a criminal probe by the district attorney in Fulton County, Ga., that is also examining efforts to overturn the 2020 election.
In addition to its focus on fake electors, Smith’s team has looked extensively at ads and email pitches that raised funds off Trump’s false claims of election fraud, people familiar with the matter said.
In the weeks after the election, an advertising firm created three ominously named spots for Trump’s fundraising effort: “Overwhelming,” “Stop the Steal” and “On Tape.” But when lawyers for the campaign reviewed the advertisements, they raised concerns that the spots contained false information and might not meet network standards, according to people familiar with the matter.
The campaign was facing a repeated problem, Trump adviser Jason Miller wrote to Larry Weitzner, an executive at the firm producing campaign ads for Trump.
“The campaign’s own legal team and data experts cannot verify the bullshit being beamed down from the mothership,” he wrote, according to four people familiar with the email. That was why Giuliani and his lawyers were “0 for 32,” Miller added, an apparent reference to the number of times Trump’s legal team had challenged the election results in court and lost.
The email is one of many pieces of evidence prosecutors have obtained indicating that Trump advisers privately didn’t believe or were at least skeptical of voter fraud claims. Some of those messages came as top campaign officials continued to approve advertisements raising money off the claims and as Trump falsely continued to say the election was “rigged.”
Miller, who holds a senior role in Trump’s 2024 presidential campaign, declined to comment on the email. A person familiar with the situation said Miller wrote the message in a moment of frustration with the various legal theories and advice from Trump’s outside lawyers in the heated days and weeks after Trump lost the 2020 election. Weitzner did not respond to a request for comment.
Steven Cheung, a spokesman for Trump, decried the release of “out-of-context information to the press” and said the Department of Justice had “no case whatsoever.”
“Further, the DOJ has no place inserting itself into reviewing campaign communications and their meddling in such matters represents a grave danger to the First Amendment and should seriously concern all campaigns and Americans,” Cheung said. “This is the continuation of the many witch-hunts against President Trump in order to meddle and influence the 2024 election in order to prevent him from returning to the White House. They will fail.”
Smith’s team has sent subpoenas in recent months seeking detailed information about the fundraising ads, two people familiar with the matter said. The Post viewed one of the subpoenas. Investigators have asked multiple Trump advisers about the formulation of the ads, payment for them and whether campaign aides knew they were false before they were released. Prosecutors also have subpoenaed information about media-buying firms and others involved in the process, people familiar with that effort said.
If individuals knowingly used electronic communications such as emails to raise funds under false pretenses, that could constitute wire fraud. However, politicians and interest groups frequently use overheated rhetoric to try to raise money, and it’s unclear if prosecutors have reached any conclusions about whether the election fraud claims by the Trump campaign crossed a legal line.
People who have been questioned by prosecutors say there has been a prolonged and intense focus on what campaign officials knew in the weeks after the election, with investigators comparing their private comments to what they said publicly. During that period, campaign officials were provided reports from at least two research firms paid by Trump’s campaign that showed the fraud claims were either false or unproven.
Another focus is whether individuals who disagreed with some of the claims were co-opted to participate in fundraising efforts. In one subpoena reviewed by The Post, prosecutors ask for all documents related to “the use of Michael R. Pence’s name in fundraising, including but not limited to whether his name could or would continue to be used in fundraising” and “any individual indicating that they do not want to be, or no longer would be, a surrogate in fundraising emails.”
People familiar with the matter say Pence’s team blanched at Trump or his advisers making any promises in fundraising emails that Pence would help overturn the election, but did not object to all the emails.
Smith’s team also has asked for email correspondence among dozens of Trump and Republican aides and advisers, including some figures who were junior staffers, the people familiar with the matter said. Some of the aides include digital copywriters.
Prosecutors have sought and obtained some evidence that there was widespread disbelief even among members of the president’s inner circle about the claims of extensive voter fraud, according to subpoenas reviewed by The Post and interviews with people familiar with witness testimony.
When Trump wanted to release a press statement saying a single report of fraud was the “tip of the iceberg,” campaign advisers argued internally against using that language, because they believed there was no evidence for such a claim. The claim went into the news release anyway, according to people familiar with the matter. Prosecutors have homed in on the phrase — and the discussion of whether to use it — with multiple witnesses, according to people familiar with the investigation.
Smith’s team has also reviewed news releases and drafts of public statements that were never issued, quizzing witnesses about them. And investigators have obtained emails and messages among Trump advisers disputing claims about election fraud made by people who were also advising Trump but were not on the campaign, people familiar with the matter said.
In one example, some Trump advisers discussed the absurdity of a fraud accusation that was passed along from members of Trump’s golf club in Bedminster, N.J., to a Trump family member, who then sent it to the campaign for research.
Multiple witnesses and lawyers said prosecutors have asked repeated questions about Trump entities paying the legal bills for witnesses and whether any strings were attached to such payments, people familiar with the matter said. Two people with knowledge of the case described some of the investigators as fixated on why certain aides who have been questioned as part of the probe are having their legal bills paid for by Trump entities.
It is not uncommon for employers to pay legal costs when employees need a lawyer for issues arising from their jobs, but prosecutors appear to be trying to determine if there is anything untoward about the arrangement in Trump’s case.
Then there is the question of whether Trump’s efforts to get state officials in Georgia to “find” more votes for him amounted to a crime.
Georgia Secretary of State Brad Raffensperger — whom Trump called after the election, talking about finding enough votes to overcome Biden’s margin of victory in the state — is scheduled to be interviewed by investigators with Smith’s office on Wednesday in Atlanta, a spokesperson for Raffensperger’s office said.
The interview session had been delayed several times at the request of Smith’s office. Raffensperger was previously interviewed by the House committee that investigated Jan. 6 and in front of a grand jury as part of the state-level probe in Georgia, which is being led by Fulton County District Attorney Fani Willis.
This would be Raffensperger’s first interview with the Justice Department.
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Kansas Attorney General Kris Kobach. (photo: Orlin Wagner/AP)
The Kansas attorney general downplayed expected changes to transgender residents' use of bathrooms and other facilities.
Kobach said Monday that an expansive new Kansas law defining male and female according to a person’s biological characteristics requires state agencies to maintain records in line with a person’s sex assigned at birth.
Trans Kansans will still be able to vote and drive using their current IDs, but future IDs will show their gender at birth. Birth certificates don’t have to be given back to the state, but the Kansas Department of Health and Environment will change its records. Those changes will then be reflected on any subsequent birth certificates issued.
“This is similar to when a person changes address,” Kobach said at a press conference. “You may still use your driver’s license with the incorrect address on it, but the new driver’s license that is issued when your current license expires will reflect the correct address.”
But he downplayed the most significant changes expected to come as a result of the law concerning transgender people’s use of sex-specific facilities including bathrooms, locker rooms and domestic violence shelters.
The law states that people will be required to use facilities that align with their sex assigned at birth, but it does not create any crime for not complying.
Kobach’s remarks were among the first indications of how the sweeping new law, set to take effect July 1, will be enforced. For nearly two months, transgender Kansans have been anxiously awaiting guidance about how their lives will be impacted by the new law.
Supporters call the law a “women’s bill of rights” and have argued it’s needed to preserve safe spaces for cisgender women and girls.
Critics say that it’s one of the broadest restrictions on transgender rights in the country and that it could fuel harassment and violence against the LGBT community.
Kansas lawmakers passed the law in April, narrowly overriding a veto by Democratic Gov. Laura Kelly, who said it and several others would hurt the state’s economy by scaring away business investment.
It’s unclear how the law will factor in prospective employers’ calculations, but some transgender Kansans say they are planning to leave the state because of it.
IDs and birth certificates
Since 2019, Kansas has allowed transgender people to update the gender marker on their birth certificates and drivers licenses due to a U.S. District Court decision in a case brought by four transgender residents.
Late Friday night, Kobach filed a motion seeking a judge’s permission to no longer follow that order because of the new law. He said Monday that state law trumps consent decrees, so state agencies will eventually have to comply with SB 180. Kobach said he will wait for the judge to make a decision on the consent decree so state agencies don’t have to choose between upholding a consent decree or state law.
“We would not push an agency to be in that position,” Kobach said.
Omar Gonzalez-Pagan, a Lambda Legal attorney who represented the plaintiffs in the case, said the LGBT civil rights organization would “vigorously oppose” Kobach’s efforts to undo the rights granted by the decision.
“SB 180, while misguided and discriminatory, does not conflict with the Consent Judgment,” Gonzalez-Pagan said in a news release. “Lambda Legal will not allow the Attorney General to nullify a binding, years-old federal judgment.”
The announcement confirmed some legal experts’ suspicions that the state would move to end gender marker changes. But, many assumed, the state would allow existing changes to stand.
That spurred a massive mobilization among transgender people in the weeks after the law was passed to update their documents before it took effect. Kansas Legal Services held a series of legal aid sessions to help people request changes to their documents before the law took effect. Hundreds turned out.
“Having an accurate identity document,” said Kansas Legal Services attorney Ellen Bertels, “reduces the risk of harassment, discrimination, and even physical violence for trans folks in public.”
Micah Kubic, executive director of the American Civil Liberties Union of Kansas, said the law does not require any of the enforcement measures Kobach has outlined.
“These are of his own volition and interpretation, driven by his own extreme ideological perspective, not by requirements of the law, the constitution, or the best interests of Kansans,” he said.
Bathrooms
The attorney general said Monday that where transgender Kansas can go to the bathroom will not change.
That’s a marked change in tune from legislative hearings on the legislation, which overwhelmingly focused on lawmakers’ desire to bar transgender women and girls from women’s restrooms.
Kobach said the law only impacts public agencies, so private businesses can still have whatever bathroom restrictions they please. The new law doesn’t specifically outline bathroom restrictions in government buildings, like public universities, but he said it does shield schools and other government institutions from lawsuits if they barred transgender women from female bathrooms.
“It states that the government has an important governmental interest in maintaining bathrooms that are specific to a person's biological sex,” he said. “That is, essentially, addressing a legal argument that might be made in the future about whether it's in any way discriminatory to have bathrooms correspond to biological sex.”
The law also doesn’t mention how these restrictions would be enforced. In Florida, for example, using the wrong bathroom is a misdemeanor.
Rep. Tory Mary Blew, a Great Bend Republican, said she isn’t sure if the Legislature will come back next session and impose penalties.
“I can't answer that question,” she said. “It may be up to the chair of those committees (and) what they are interested in doing. A lot can change between now and when we come back in January.”
Prisons and jails
The soon-to-be-enacted law will have little impact on correctional facilities. The state prison system has dozens of trans inmates, though there is only one known inmate who has completed a sex change surgery and been transferred to a different prison. That inmate, originally born as a male, has a doctor's note certifying the gender change and is in the Topeka women’s prison.
An inmate's housing assignment is up to the Kansas Department of Corrections. The new law would not force the trans inmate to move to a male prison and only prohibits her from going to certain parts of the women’s prison.
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A DoorDash delivery worker. (photo: John Minchillo/AP)
Unsafe conditions, sexual harassment and gender-based discrimination are rife among female workers, research finds
A cultural anthropologist, Krishan has been studying the experiences of women and gender minorities for almost a decade. It was in India, while researching a rise in suicides among married women, that she first became interested in the effects of unpaid labour – and in the correlation between work and gender.
In a new report published on Monday by the Fairwork project, Krishan and her co-author Kavita Dattani turn their attention to location-based digital platform work – including ride hailing, food delivery and at-home beauty treatments – and the ways in which the gig economy can aggravate gender inequalities.
Conducted over four years, 38 countries and 180 platforms, the report’s three-part data collection strategy saw an international team of researchers interview more than 5,000 workers. What they discovered is an economy where failures to ensure safe working conditions and tackle gender-based discrimination are “commonplace”.
“There were so many reports of violence and abuse,” Krishan says. “The thing that really came to the fore was the incidence of sexual harassment. I didn’t expect them to have to deal with so much – it was shocking.”
The report explains that the masculinisation of driving and delivery roles mean that women are more likely to take on domestic work within a client’s home – removing them from the relative safety of public spaces. “Every time they enter a client’s home they’re wondering: ‘Is this person going to be good or bad?,’” Krishan says.
Krishan cites the example of a worker in India performing a beauty treatment at a client’s home, only to then be asked to stay and cook – a scenario she describes as very common.
“When workers are asked to do extra pieces of work that aren’t included in the official service, they can’t say no – there’s this huge power imbalance,” Dattani says. “Clients have a lot more voice on the platform, and it means workers get drawn into extra or possibly unpaid work.”
Such attitudes are, according to the report, by no means unique to India. Dattani, a feminist researcher of digital technologies whose previous work has centred on techno-masculinist logics – the tendency of digital platforms to assume all workers are men – points to the US. Here, she says, workers caring for elderly people reported feeling pressure to carry out extra cleaning for their clients, leading to unpaid labour.
Elsewhere in the US, workers described carrying guns to protect themselves from clients – with black women reporting that they feel particularly at risk. “We know that in the US, black people experience feeling unsafe in white neighbourhoods, as well as extreme levels of policing. Those two things compound experiences of inequity.”
The second reason for the popularity of feminised work, Krishan and Dattani explain, is the comparatively low barrier to entry. Private hire driving generally requires a considerable upfront investment – for instance, a car – while work in the home does not. Platform roles generally also remove the need for a traditional interview, which is appealing to those who are socially stigmatised.
This, Krishan says, is especially true for divorced or single mothers in countries such as Egypt, Bangladesh and India – where she has firsthand experience of the invasive nature of interviews. “They asked me if I was married, who I live with, what my mother does,” she says. “Eventually they said: ‘We can tell that you’re the right type of person, that you come from a good family.’”
For those less fortunate than Krishan, a role where fewer questions are asked has its attractions. In countries including Belgium, Argentina and the UK, migrants and refugees without the right to work reported taking on gig work by substitution, ie working in place of the person registered with the platform.
“I really believe this puts the worker in a very precarious position,” Krishan says. “If you are working as a substitute and something bad happens to you, you won’t complain because you don’t feel like you have the right. It just allows exploitation to take place.”
In the UK, women were found to be taking on platform work as a temporary cure for burnout – teachers and NHS workers joining the gig economy as a way to recover from the effects of the Covid pandemic. “They kept talking about what a relief it is after the enormous emotional burden of working in these services,” says Krishan.
Despite women joining the gig economy in the quest for more freedom, researchers found little evidence of platform flexibility. Instead, workers described limiting their roles to safer neighbourhoods and declining work at night, effectively widening the gender pay gap.
In countries such as Bangladesh and Paraguay, Krishan says platforms have had some success in combating these issues by requesting identification from clients – a practice which, although not widespread, allows workers to vet and flag those who use their services. However, other attempts at safety features have proved less successful.
Krishan points again to India, where she says platforms banned women from working after 6pm and from delivering heavy groceries. “The platforms usually realise ‘oh, this was terrible’ and change these policies,” Krishan says. “But in the meanwhile, people have lost income that they really can’t afford.
“So much of it is just the platform not listening to the women,” she says. “They’d rather come up with a very complicated algorithmic solution than just talk to them. And as a woman, that’s so frustrating.”
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Deckhand Justin Middleton pulls in a crab trap off San Francisco, where new pop-up fishing gear is being piloted. (photo: Brand Little/NPR)
"We're the only boat right now," says Brand Little, standing next to a large tank of bright red crabs on the deck of his boat, the Pale Horse.
State regulators closed the Dungeness season two months early this year, due to the arrival of humpback whales in the area. On both the East and West Coasts, crab and lobster fishermen are seeing their fishing seasons shrink over concerns that whales are getting entangled in the long ropes attached to their gear, accidents that often end up injuring or killing the animals.
But Little is still fishing, because he's trying out a system that many hope will be a technological fix to the problem: "pop-up" fishing gear.
Normally, crabs and lobster traps sit on the bottom of the ocean and are tethered to the surface by a rope that can stretch hundreds of feet. Pop-up fishing gear, also known as on-demand or ropeless gear, keeps the rope and buoy stowed on the ocean floor, until the fisherman comes to retrieve it. This spring, a dozen lobstermen were also permitted to fish in closed areas off Massachusetts and Rhode Island with pop-up gear.
The new gear has the potential to help whales and fishermen alike, but it isn't a quick fix. There are technical issues to iron out, including ensuring the gear can be used in crowded areas. The cost for each pop-up system can also run thousands of dollars, a massive expenditure for boats that would need to buy hundreds.
Within the fishing community, there's also reluctance to even test the equipment because many fishermen fear government regulators will mandate it.
Still, the urgency to make the gear work is growing, as fishermen keep taking financial hits and whales remain at risk. On the East Coast, North Atlantic right whales are dangerously close to extinction and more than 85% show injuries from being entangled.
"I think this on-demand system, this ropeless fishing, is a very human way to tackle the problem because it's technology," says Mark Baumgartner, senior scientist at the Woods Hole Oceanographic Institution. "What we're good at is coming up with technology to solve problems."
Testing pop-up gear in the water
On a Saturday morning, a steady stream of customers stop by Little's boat to snag a few crabs. Little's catch is far less than he'd get at the peak of crab season, but his goal is to test the pop-up fishing gear and look for pitfalls.
"That's what fishermen need to do – be part of the development of it or take what's handed to you," he says. "And 90% of what's out there I would not want to be handed."
The system works like this: the large round crab trap is tossed overboard along with a coiled rope, buoy and inflatable bag. After it's collected crabs on the seafloor, Little returns, finding the trap on an app. He hits a button, sending an acoustic signal to release the rope and buoy, which rise to the surface. Other gear manufacturers have different variations of this system.
Little says he was skeptical at first, but has found the gear has potential. The last few years have been tough on him and the rest of California's crab fleet. The season opening was also delayed several times in recent years, after humpback whales returned to coastal waters on their yearly migration in the winter.
Lobster fishermen on the East Coast have faced similar closures over North Atlantic right whales. Only around 340 right whales remain in the population and federal officials have documented dozens of entanglements since 2017. The whales feed by swimming slowly with open mouths, making them vulnerable to long ropes hanging in the water. The injuries can be grisly. Ropes dig into the whale's flesh, exhausting or killing whales after they drag the gear for miles. Earlier this year, rescuers worked for 3 days to remove more than 150 feet of rope from a whale, equipment later linked to the Canadian fishing industry.
Concerns about whales led Whole Foods to announce last spring that it would no longer sell live lobsters from Maine. The controversy has been intense, with Maine's lobster industry contending that no whale deaths have been linked to their fishery.
It's challenging for regulators to determine exactly where whales are being entangled. Many injured whales are found after the ropes have fallen off, and federal rules only recently required fishermen to put color coding on their ropes to better identify where they came from. As the oceans get hotter with climate change, right whales have also been shifting their migration, spending less time in Maine waters.
Some fishermen hesitant to dive in
On social media, Little has been posting when "whale-safe" crab is available to help customers understand what fishermen are doing about the problem.
"For me, it's adapt or die," he says. "You gotta roll with the punches. This problem isn't going away without changing the way we do stuff."
Still, his willingness to test out the new fishing gear has not made him popular at the docks.
"I get a lot of flack," Little says. "There's a lot of guys really upset with me for doing this."
On the East Coast, gear testing has faced a similar atmosphere of doubt. Dave Casoni, who has been lobstering off Cape Cod for five decades, said he's tested pop-up gear, but there's a fair amount of peer pressure to steer clear over worries it will bring more regulation.
"Maybe it would send a message that: see, the industry did it, therefore they were in favor of it," Casoni says. "I was accused of that and I had not intended to do that. I intended to find the shortfalls."
NOAA's Northeast Fisheries Science Center has created a library of ropeless gear, where fishermen can test gear in the water and help provide feedback to manufacturers. But of more than 5,000 lobstermen in New England, only 50 have used the library since it was created several years ago.
Patrice Maccarron, policy director of the Maine Lobstermen's Association, says the fear among fishermen is that if regulators see them using pop-up gear, they'll mandate it year-round, even when whales are not present. But some lobstermen are still trying to be part of the process.
"They tend to be younger people with families who want to be in the fishery," Maccarron says. "And they're thinking, you know, I don't want to do this. This is going to be really hard. But I also don't want my livelihood to be removed and to reach a point where we don't have options."
As the fishery closures have mounted, hitting the more than $500 million lobster industry, the conversation is shifting, albeit slowly.
"I think we're now seeing a lot more willingness to try this, a lot more feedback, a lot more people who are understanding that we're simply trying to provide fishermen a tool so they can access these closed areas," says Henry Milliken, who helps run the gear library at NOAA's Northeast Fisheries Science Center.
Technical issues still remain
Pop-up gear may work well in tests, but many fishermen worry it could be a different story when hundreds of boats use it during a busy commercial fishing season.
Buoys on the surface normally mark where traps are located, so fishermen can avoid putting their traps on top of someone else's. With pop-up gear, fishermen would need to use an app or their onboard navigation system to see where traps already are on the seafloor. And some worry there could be conflict when boats are working close together.
"It's very, very congested," Casoni says. "So I think the fear is it would create more problems amongst each other just fishing. It's a very busy, dangerous operation to begin with, and we don't need to add that."
To prevent problems, fishing gear made by different manufacturers needs to show up on the same maps, just as cell phones from different carriers can all use the same network. NOAA plans on holding a workshop this fall to develop universal technical standards for manufacturers.
Then there's the question how much slower it is to use pop-up gear. Dick Ogg, a crab fisherman from Bodega Bay, California, says he's tested the gear. He points out that fishermen work with hundreds of traps during already grueling work days, and adding any extra time with new gear would be an economic hit.
"The process is very fast and it's important to understand if we alter any of this, it has to be comparable," Ogg says. "If I do one extra minute on my pot allocation, that's an extra 5.8 hours a day."
The price tag for pop-up systems can cost from hundreds to thousands of dollars per unit, which adds up for boats with hundreds of traps. To deploy the gear in a fishery equitably, boats would likely need grants or loans to defray the costs.
"If we bring in a capital-intensive model, we know our small boats don't have that sort of operating capital," McCarron says. "And, you know, there's a very, very strong concern that we're going to lose them and there won't be a place for them."
New resources to make pop-up gear work
To accelerate the process, the federal government is putting almost $68 million towards efforts to help North Atlantic right whales this year, funding that comes from the Inflation Reduction Act and the omnibus spending bill passed in December. Of that, $27 million will go to new kinds of fishing gear.
"It's a very significant investment that we haven't seen before to address the issues that are facing North Atlantic right whales," says Kim Damon-Randall is the director of NOAA Fisheries Office of Protected Resources. "If we can develop on-demand technology for gear in the Northeast, that technology can be applied elsewhere."
Fishermen on both coasts are able to use pop-up gear voluntarily now, and lobstermen on the East Coast aren't facing imminent rules mandating the gear. While NOAA had developed new regulations that would close fishing grounds and limit the number of traps in the water, a last minute Congressional effort in December delayed those rules for six years.
No matter what side of the issue, most agree that pop-up gear will take some time, both to iron out the technical issues and to work on acceptance in the fishing industry. In the Northeast, a group of manufacturers, fishermen and the Woods Hole Oceanographic Institute, known as the Ropeless Consortium, is working together on improving the technology.
"Everything just needs to happen faster," Baumgartner says. "So more focus and more resources are what's needed. Those are coming but it's been slow in coming."
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