“Big moves on Day 1,” White House senior policy strategist May Mailman crowed on X the morning of President Donald Trump’s inauguration, linking to a news article about a forthcoming executive order. Even amid the barrage of actions during the first hours of the Trump 2.0 presidency, the order—“Defending Women From Gender Ideology Extremism and Restoring Biological Truth to the Federal Government”—was a bombshell. It directed federal agencies to eradicate every trace of what it called “gender ideology” and established new government-wide definitions of the sexes. “Woman” meant adult human female. “Female” was “a person belonging, at conception, to the sex that produces the large reproductive cell.” Men made “the small reproductive cell.” “Sex,” it decreed, was an “immutable biological reality.” For at least two years, Trump had been promising to “get transgender out” of schools, women’s sports, and the military. “It will be the official policy of the United States government that there are only two genders: male and female,” he would tell his cheering crowds. > Riley Gaines, the swimmer–turned–anti-trans activist, fangirled, “May Mailman > is my Taylor Swift.” But the order’s sweep and audacity seemed to surprise even Trump’s admirers. “It’s perfection,” Megyn Kelly gushed on her SiriusXM show. “In my wildest dreams, I couldn’t have drafted something this beautiful.” On X, the kudos flowed in from people in the United Kingdom, Australia, and Brazil. Many of the posts singled out Mailman, a Harvard-educated lawyer quickly identified as the order’s chief author. Riley Gaines, the swimmer–turned–anti-trans activist, fangirled, “May Mailman is my Taylor Swift.” Mailman had spent four years working in the first Trump administration, becoming an immigration hawk and close ally and friend of senior adviser Stephen Miller. During the Biden era, she landed at the Independent Women’s Forum, a Washington power player that rose to prominence by pink-washing conservative economic policies—claiming to champion women’s freedom and equality while actually working to undermine them. There, she threw herself into the anti-trans cause, going from state to state to promote model legislation, known as the Women’s Bill of Rights, that enshrined narrow definitions of “male” and “female” into law. May Mailman, director of the Independent Women’s Forum’s law center, speaks at a 2024 press conference about suing a sorority that allowed transgender women to join.David ZalubowskiAP Now, at the start of Trump’s second term, Mailman was stepping into the spotlight as a White House surrogate and speaking to conservative outlets about the need to “protect” cisgender women. “If men can just assert that they are women and take women’s privacy away, take their opportunity away, take their safety away,” she told a St. Louis radio host, “then there is no such thing as women’s rights anymore.” But there were intimations that the crusade against trans people encompassed something broader. Mailman wasn’t just anti-trans; she was profoundly dismissive of feminism. “There’s something about, you know, swiping right and left in your apartment by yourself at 11 p.m. after working a hard day that, like, doesn’t feel like feminism is the answer to all your problems,” she mocked on one podcast. She was worried about how “gender ideology” would affect men, too. “Who’s going to be our firefighters? Who are going to be our policemen?” she fretted on another. At a Federalist Society webinar last March, she urged listeners not to even use the word “transgender,” so as not to give “credence” to the idea of “this being a category of people.” She also raised an essential question: After defining sex in the law and kicking trans women out of sports and sororities, what comes next? The answer, she suggested, had something to do with sorting out social roles for men and women. “Trying to figure out how much do we care about gender roles, how much should gender roles infect the idea of womanhood, will, I think, ultimately affect our thinking about gender roles absent transgenderism,” she mused. Then she stopped, as if realizing she was treading into dangerous territory, and smiled. “That conversation is maybe for another day.” This is the story of an extraordinary effort by the second Trump administration to shape our ideas about who and what men and women are—a campaign that began with the targeting of trans people but has vast implications for the rights of cisgender people as well. At the center is Mailman, who describes herself as “one of the most effective and connected veterans of the Trump West Wing,” the get-it-done woman for Trump’s get-it-done man. “Stephen [Miller]’s the ideas guy,” she told Blaze News in April. “And then I’m trying to be the one who makes it happen.” In her whirlwind tour through the White House last year, Mailman made quite a few things happen very quickly—including a high-profile pressure campaign against her alma mater Harvard University to adopt Trumpian priorities in hiring and admissions or lose federal funding. Then, after six months, she left the administration, returning to IWF—now rebranded as just Independent Women—to direct its law center. There, she co-authored amicus briefs in two of the biggest Supreme Court cases of the year, both involving transgender students trying to overturn laws that forbid them from playing girls’ sports. The day after oral arguments, Mailman was on Fox News complaining that some of the justices had dared to call the students “transgender girls.”   > “The executive order absolutely has implications for heterosexual, cisgender > women. Sometimes, I think that’s their main target.” Her Defending Women executive order—and the other anti-trans federal decrees that followed—had an immediate, sweeping impact on the estimated 2.8 million trans Americans over age 13. On the phone several days after January’s Supreme Court hearing, Mailman tells me the push to enshrine definitions of sex had two goals: to prevent courts and administrators from interpreting existing laws in ways that are inclusive of trans people and to make voters feel alienated from Democrats. She frames the idea that transgender women are women as an “elite” concept. “If the left can’t agree that ‘woman’ means ‘female,’” she says, “there is something very othering about that to most Americans.” Now feminist scholars are also starting to raise alarms about the order’s implications for non-trans women. They warn it could be used to undo 50 years of legal and economic progress in the workplace, health care, education, and much more. “At the moment, the most painful, prejudicial consequences are for trans people,” says Kathryn Abrams, a University of California, Berkeley law professor studying sex discrimination. But “the executive order absolutely has implications for heterosexual, cisgender women,” she says. “Sometimes, I think that’s their main target.” For decades, much of the conservative movement has been fighting to undermine anti-discrimination protections based on sex, explains legal historian Mary Ziegler of the University of California, Davis. These include landmark laws like Title IX, which applies in education, and court decisions like United States v. Virginia, which said the government must have a strong reason, based on more than just stereotypes about physical capabilities, to treat men and women differently. Those protections profoundly reshaped American society, giving women more freedom to pursue the lives of their choosing. But they imposed new requirements on powerful institutions that balked at being regulated, and, Ziegler says, they outraged Christian conservatives who believe that “God has a plan for marriage and sexuality and the family” and “God’s plan should be written into the law.” The right slowed the momentum for women’s equality when it killed the Equal Rights Amendment in the early 1980s and turned abortion into a wedge issue. Decades later, the anti-trans movement’s emphasis on strictly defining sex as “biological” has given conservatives a new weapon to claw back the feminist movement’s earlier gains, Ziegler says. The term “biological sex,” she says, has become “the new takedown strategy for anti-discrimination law.” Related HOW RIGHT-WING SUPERSTAR RILEY GAINES BUILT AN ANTI-TRANS EMPIRE Mailman, not surprisingly, disputes that the sex definitions are part of a wider effort to weaken sex discrimination law. “Simply cementing the case that sex is real doesn’t change anything,” she tells me. “It is the status quo.” Nor does she think enshrining sex definitions based on eggs and sperm will lead to women being treated differently from men in, say, classrooms and workplaces. “There’s nothing about that that forces a woman into a separate calculus class.” But Mailman’s allies in the conservative movement—groups like the Alliance Defending Freedom, the religious right legal organization that has led many of the biggest attacks on abortion and LGBTQ rights—have their own agendas. “What they’re trying to do is to replace sex discrimination law with a Trojan horse sex discrimination law that no longer prohibits sex discrimination,” Ziegler says. Rather than attacking protections head on, she explains, “they’re going to say, ‘American anti-discrimination law means you can treat men and women differently because they have different bodies.’” If courts embrace this logic, Ziegler says, it would be much harder to fight back against potential restrictions on women’s lives—laws that limit job options for pregnant workers, for example, or that ban women from military schools—by arguing they violate the Constitution’s equal protection clause.   > “The administration is telling us what their long game is, which is to treat > women’s bodies as commodities and to create laws to exert control over these > commodities.” Other Trump 2.0 priorities, like its fixation with increasing birth rates, add to this growing sense of feminist dread. “They’re so open about the fact that they want women to leave the workforce and have babies—the earlier, the better—and fulfill the role of motherhood,” says Ting Ting Cheng, director of the Equal Rights Amendment Project at the NYU School of Law. “The administration is telling us what their long game is, which is to treat women’s bodies as commodities and to create laws to exert control over these commodities.” “The foundational piece,” Cheng adds, “is defining people by their biology—to essentially see women as people who have one manifest destiny to fulfill.” Last spring, to mark Trump’s 100th day in office, Mailman spoke with Debbie Kraulidis, vice president of Moms for America and host of its podcast. Inevitably, the conversation turned to trans kids in schools. Mailman recalled her own childhood in the 1990s and early 2000s: “When I was growing up,” she declared, “it was okay to be a feminine guy. It was okay to be a masculine girl.” Nowadays, she lamented, “you can’t be a tomboy anymore, because you’ll get your body parts chopped off.” The first child of a surgeon and his Korean-born wife, Mailman (née Davis) remembers her upbringing in “middle-of-nowhere” Kansas with great fondness: “For kids who are from small towns,” she told another podcaster, “you really get to build up your self-esteem and try a lot of things.” At Clay Center Community High School (class of 2006), she was a student council officer, drill team member, and athlete (lettering in cheerleading, tennis, and track), as well as the star at the top of the “Singing Christmas Tree.” By college, she was also a committed conservative, serving as treasurer for the University of Kansas College Republicans and interning for US Sen. Sam Brownback, a GOP stalwart who later became governor. But she didn’t seem to take herself too seriously, entering Spike TV’s “sexiest co-ed” competition in 2007 and earning a write-up in the college paper. “If somebody was doing it who wasn’t me, I’d probably be judgmental,” she told the reporter. Then again, “Why not, for $5,000?”   Graduating into the Great Recession with a journalism degree, she joined Teach for America, landing at Pathway Academy, a majority-Black charter school in Kansas City, Missouri. The school’s executive director, Jennifer Fleming, recalls her as “extremely intelligent, very self-motivated, goal-oriented,” building relationships with students and their families. Mailman would later describe implementing strict discipline, like “standing silent lunch,” in her classroom. Her sixth-grade class scored so high on state tests that the school got its accreditation back, Fleming says. The experience seemed to reinforce Mailman’s conservative beliefs. “I had always thought that Teach for America would help me equip people to be responsible for themselves,” Mailman later recalled for a profile on IWF’s website. “But my kids didn’t have the home environment necessary to do school…I became much more focused on what we can do to build families.” After two years and a master’s degree in education, Mailman headed to Harvard Law, where she chafed at automatically being made a member of the Women’s Law Association, she told me in an email after we spoke in January. “They gave us ladies a little pep speech, saying that women should support each other in class by applauding other women’s contributions,” she wrote. Men had no equivalent. “I hated this. It felt so infantilizing.” Mailman wanted me to know that as a conservative, she’s in favor of treating women equally; it’s left wingers who seek, through such “race and sex based identity groups,” to treat women as “weak or ill equipped” in her view. (Equal doesn’t mean identical, however: “At the same time, sex exists,” she wrote, citing differences between men’s and women’s LSAT scores.) May Mailman (née Davis, standing on left) poses with the girls’ tennis team in her 2006 high school yearbook.Clay Center Community High School From her 2006 yearbook, Mailman was the star at the top of her high school’s “Singing Christmas Tree.”Clay Center Community High School Mailman’s aversion to groups like the Women’s Law Association would echo, years later, in her Trump 2.0 campaign to eliminate diversity and inclusion measures at Harvard and other higher education institutions. The problem with universities, she told the New York Times last fall, is their “culture of victimhood—a glorification of victimhood—that is ultimately bad for Western civilization and bad for the country.” During her Harvard years, she’d felt very much outside the Obama-era political mainstream. “Conservatism was a lonely place,” especially for women, she told a podcaster last year. But that isolation was also empowering: “You end up being very comfortable with yourself, comfortable with your arguments, comfortable not having a lot of friends.” She became president of the ultra-elite Harvard chapter of the ultra-connected Federalist Society. Post-Harvard, she landed a prestigious clerkship with a federal appellate judge in Denver, then moved on to a private law firm. When a Harvard friend reached out with an offer to work at the “center of the universe”—the first Trump White House—she accepted immediately. Mailman started on day one of Trump 1.0 and stayed until the bitter end. According to emails reported by the New York Times, as deputy White House policy coordinator in 2018, she floated a proposal to send detained migrants to sanctuary cities. She describes herself as part of the “cleanup crew” for the administration’s family separation policy at the border. Later, she was promoted to the powerful White House counsel’s office, where her portfolio included social issues and the administration’s response to the Covid-19 pandemic. Trans issues were also on the White House’s radar, including a military ban. In 2018, the Department of Health and Human Services even considered an order that would have narrowly defined sex as “immutable biological traits identifiable by or before birth.” But the conservative base reacted with crickets to proposed anti-trans policies, Mailman recounted on a podcast. “Nobody seemed to care, except for people who didn’t like it.” Indeed, public support for trans rights was at an all-time high. When North Carolina passed a law in 2016 restricting trans students’ bathroom access in schools, Fortune 500 companies boycotted the state. Then in June 2020, the Supreme Court stunned conservatives by ruling 6–3 that firing someone for being gay or transgender violated the federal law banning sex discrimination in the workplace. “It is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex,” Justice Neil Gorsuch, Trump’s first appointee to the high court, reasoned in Bostock v. Clayton County. Mailman hated the decision: “I would argue there’s no logic to Bostock,” she told me. Mailman was still working for Trump when his supporters stormed the Capitol on January 6, 2021. That very day, she accepted a job offer from the Ohio attorney general, anticipating that her colleagues were about to become “unhirable for a very long time,” she later admitted. One month after Trump left office, Mailman also began a fellowship with the Independent Women’s Forum. Like many conservative organizations, IWF was starting to invest in anti-trans politics—putting Mailman at the center of the next big culture war. The organization Mailman joined had its roots in the 1991 Supreme Court nomination that was itself a turning point for the role of women in American politics. President George H.W. Bush’s nomination of Clarence Thomas to replace civil rights icon Thurgood Marshall on the nation’s highest court was greeted with howls of liberal outrage. Even before Anita Hill’s sexual harassment allegations threatened to tank his nomination, Thomas’ close friend Rosalie Silberman organized “Women for Judge Thomas” to vouch for his character. Thomas’ confirmation activated a generation of left-leaning women around the issue of sexual harassment. Silberman and her comrades created the Independent Women’s Forum to counter them. “We listened to the spin of those days—the litany that women are victims and men just don’t get it—and decided that those woebegone women did not speak for us,” Silberman said in 1998. “Nor did we think that they spoke for the vast majority of American women.” IWF’s policy agenda was defined by being anti-regulation and anti–“female victimhood.” At various points over its 35-year history, the organization has opposed the Violence Against Women Act, women’s admission to the Virginia Military Institute, the Affordable Care Act, and paid family and sick leave. It claimed Title IX was being used to defund men’s sports, that sexual violence rates were overblown, and that the gender pay gap was the result of women’s choices. For a time, it was run in tandem with the Koch brothers–affiliated interest group Americans for Prosperity. Supreme Court nominee Clarence Thomas appears at his Senate confirmation hearing in 1991.Lee Corkran/Sygma/Getty Members of the Independent Women’s Forum gather in a Northern Virginia conference room in 1995.Mary Lou Foy/Washington Post/Getty From the beginning, much of IWF’s influence was derived from its messaging, starting with its claim to be “independent”—seeming to stand apart not just from feminists, but from ultra-right groups, in part because it didn’t take a public stance on abortion. “Being branded as neutral, but actually having people who know-know that you’re actually conservative, puts us in a unique position,” IWF Board Chair Heather Higgins, a pharmaceutical heiress, explained at an event for potential 2016 donors. “Our value…is taking a conservative message and packaging it in a way that will be acceptable.” IWF’s first public, tentative forays into anti-trans politics seem to have started around 2017, with news releases ridiculing colleges for putting free tampons in men’s restrooms and for recommending that professors ask students their pronouns. Then in 2019, the conservative anti-trans movement suddenly got serious. That’s when the far-right American Principles Project turned a Kentucky gubernatorial election into a petri dish for anti-trans messaging—and found that a video about a boy in girls’ wrestling struck a nerve. > It didn’t matter that trans athletes were—and continue to be—vanishingly rare, > or that lawmakers in some states were unable to identify a single player who > would be affected by their bans. The Democrat won anyway. But conservatives had identified a compelling narrative: Trans people were victimizing female athletes. Within months, Republicans in 17 states introduced a new type of bill, banning trans girls from playing on girls’ sports teams. It didn’t matter that trans athletes were—and continue to be—vanishingly rare, or that lawmakers in states like Tennessee and South Carolina were unable to identify a single player who would be affected by their bans. The sports issue became the turning point for an anti-trans coalition that included juggernauts of the religious right like the Heritage Foundation and Alliance Defending Freedom. IWF stepped up to provide a female face and voice for the message. Never mind that the “women are victims” narrative contradicted so much of its past work. By 2022, threat of trans athletes had become a central theme of IWF’s messaging. It snapped up aggrieved athletes like college swimmer Riley Gaines, training her to communicate her story of tying for fifth place with transgender swimmer Lia Thomas and eventually hiring her as a spokeswoman. Payton McNabb, a high school volleyball player injured from a spike by a transgender girl, became another “ambassador.”    Mailman embraced the message too, testifying on behalf of IWF against trans athletes in front of a House Judiciary subcommittee. IWF’s media training was a big part of why she joined the group. “I wanted to be on liberal media as a conservative person,” she says, “trying to talk to people,” the way pundits of old used television to shape public opinion when she was a kid. As Mailman sees it, female messengers have been critical to shifting the narrative around trans issues because—stereotype alert!—they are better at conveying empathy than men. For a long time, she tells me, progressive messages of acceptance and affirmation held sway, and “women do want to be kind, and we do want to be empathetic.” So conservatives needed women to challenge “the empathy play,” she went on. For men, it’s “not their natural language.” Differentiating the sexes based on such stereotypes is exactly the type of thing that causes left-leaning women to shudder. But one of the most confounding aspects of the Defending Women executive order is its connection to a group of activists who define themselves as radical feminists. In 2022, IWF announced an ambitious new project that would serve as a prototype for the Defending Women order: a model bill, then known as the Women’s Bill of Rights, that defined male and female in law according to a narrow view of biology. At a press conference, IWF and other social conservatives spoke alongside current and former members of Women’s Liberation Front, a small left-wing group vehemently opposed to the very idea of transgender identity. IWF leaders described their legislation as merely ensuring that policymakers were all on the same page about the meanings of “female” and “male.” But former WoLF board member Kara Dansky, speaking on the call, made it clear that the bill’s goal was to end legal recognition of transgender people. “Everyone is either female or male,” she declared on the call. “Everything else is a lie.” Sometimes known as trans-exclusionary radical feminists, or TERFs, activists like Dansky believe that women’s rights will be lost if the category of “women” includes people assigned male at birth. They’ve pushed for decades to exclude trans women from women’s spaces. (Some who adhere to these views—including, famously, Harry Potter author JK Rowling—consider the TERF acronym a slur and describe themselves as “gender critical”; others embrace it.) Mailman tells me that TERF activists, particularly Dansky, were the intellectual force behind the effort to enshrine sex definitions. “The ones that were really driving the charge and had just a lot more knowledge and background, and had been thinking about these issues, writing about these issues, for such a long time, tended to be people on the left,” she says. (Dansky, in an email, says she did not contribute directly to the model bill’s language or strategy, though she does call Mailman an “extremely intelligent lawyer.” Like Mailman, she doesn’t believe that enshrining sex definitions could turn back the clock on women’s equality under the Constitution. “Radical feminists are gender abolitionists who fully support women who do not conform to sex stereotypes,” she writes.) Former Women’s Liberation Front board member Kara Dansky speaks at a 2020 event at the Seattle Public Library.Lindsey Wasson for the Washington Post/Getty The Women’s Bill of Rights wasn’t the first time radical feminists had teamed up with social conservatives on transgender issues. In 2016, WoLF received a $15,000 grant from the Alliance Defending Freedom to fund a lawsuit over trans students’ access to bathrooms and locker rooms. In 2021, WoLF took another $50,000 from ADF to sue California over a law that allows transgender women to be housed in women’s prisons. “It would be foolish to let performative virtue-signaling prevent us from using available resources,” WoLF legal director Lauren Bone emailed when I asked about the group’s work with the far right. Both sides have benefited from the strange alliance, Joanna Wuest, an assistant professor at Stony Brook University, points out. Right-wing money and connections allow fringe TERF groups to “punch above their weight,” she says. And conservative Christian groups get “a lot of rhetorical leverage out of saying [that even] radical feminist organizations are opposed to this interpretation of sex as gender identity.”  > Conservative Christian groups get “a lot of rhetorical leverage out of saying > [that even] radical feminist organizations are opposed to this interpretation > of sex as gender identity.”  Soon after the Women’s Bill of Rights was unveiled, Sen. Cindy Hyde-Smith (R-Miss.) introduced a version of it in Congress. With the midterms approaching, IWF targeted hundreds of thousands of Facebook users in swing states with ads touting the model bill as part of its supposed crusade for women’s empowerment, boosted by a $100,000 “Innovation Prize” from Heritage. In 2023, versions of the legislation began popping up in statehouses around the country. To promote it, IWF sent Riley Gaines and Mailman—a trip Mailman would later describe as her “first foray into TERFdom.” Mailman, by then married to former professional baseball player David Mailman, leaned on her own experiences as a woman to advocate for the bills. “‘Identification’ replaced the biological reality that we have been living our entire lives—that I am particularly 32 weeks into living right now,” she said on a stage in West Virginia, visibly pregnant with her second child. Her blitz through the state “was terrifying to watch,” says Khadijah Silver, director of gender justice and health equity at Lawyers for Good Government. “She did an incredible job of flooding legal and political environments, partnering with the right groups, to normalize a regressive and anti-scientific and extremely unfeminist analysis of gender—and make it pretty hard to break through that messaging.” The Kansas legislature became the first state to pass the bill in the spring of 2023, and when Democratic Gov. Laura Kelly vetoed it, the Republican supermajority overrode her. (“Victory!” WoLF declared in a press release.) Today, 16 states have similar laws, and two more have issued executive orders likewise defining sex. Logan Casey of the Movement Advancement Project describes the Women’s Bill of Rights as “more existential” than other anti-trans bills. “They’re not targeting just one policy area,” he says. “They’re zooming up and saying across the entire government, here’s how we define the word ‘sex’ so that we can basically apply it everywhere that we want, until somebody stops us.” Mailman drew on the state sex-definition bills as she drafted the Defending Women executive order. But the ink on Trump’s signature was barely dry before scientists began to push back, arguing that for all the order’s claim to “biological truth,” a modern understanding of sex involves far more than eggs and sperm.  Today, many biologists view sex as measured by multiple indicators—hormones, chromosomes, genitalia, brain physiology—that typically but don’t always align. > Scientists began to push back, arguing that for all the order’s claim to > “biological truth,” a modern understanding of sex involves far more than eggs > and sperm. More outcry came from reproductive-rights advocates, because the order defined sex as existing “at conception”—language that nods to anti-abortion religious activists who argue that fetal rights begin at fertilization. House Speaker Mike Johnson, for one, was elated about that phrasing, vaunting it during the 2025 March for Life in Washington. Mailman tells me the “at conception” language was added not for abortion policy purposes, but to make the point that sex is determined by DNA prior to birth. Still, “there’s a nice flavor to respecting fetal personhood,” she says. “That’s an added benefit.” So far, the Trump administration has not used the Defending Women order to pursue anti-abortion policies. Instead, it has zeroed in on attacks on the transgender community. The order had an immediate impact on passports, federal funding for gender-related health research, and transgender prisoners. Soon came more executive orders targeting teachers who supported trans students, schools that let them play girls’ sports, and doctors who provided them gender-affirming health care. Another order stated that being trans “conflicts” with a soldier’s “honorable, truthful, and disciplined lifestyle.” The Departments of Justice and Education formed a special team to investigate schools for promoting “gender ideology”—and some universities, in this new climate, fired instructors and censored Plato. The changes have been so drastic that federal judges have put many of the federal government’s anti-trans policies on temporary hold. But the ultimate decider will be the Supreme Court, which already has signaled its willingness to interpret sex discrimination law in ways that exclude trans people. Last June, conservative justices ruled 6–3 that states can ban puberty blockers and hormone therapy for transgender minors. In November, the Supreme Court allowed the State Department to stop changing trans people’s gender markers on their passports. Mailman appears on Fox News on January 14, 2026, to discuss the transgender sports cases before the Supreme Court.Fox News The court is currently considering a pair of cases that directly ask how much different treatment for the sexes based on “biology” is allowable. The cases involve two states, Idaho and West Virginia, which have both passed laws banning trans girls and women from playing on women’s school sports teams. During oral arguments in January, ultra-conservative Justice Samuel Alito seemed to view the cases as an opportunity to enshrine a constitutional definition of sex: How can a court determine whether there’s discrimination on the basis of sex, he asked, “without knowing what sex means?” But Justice Amy Coney Barrett appeared to understand that there would be greater consequences to a decision that gave states more leeway to treat men and women differently, so long as the state claimed the reason was biological. “Your whole position in this case depends on there being inherent differences, right?” Barrett asked the lawyer for West Virginia. But, she hypothesized, what if a state could produce studies showing that women’s presence in calculus classes held back men’s learning? Could women be excluded from calculus? “Seems to me like there would be some risk on your understanding that that would be okay,” she said. The exchange showed that even the Supreme Court justices are thinking about how an anti-trans ruling could have wider consequences for sex equality, says Kate Shaw, a law professor at the University of Pennsylvania and co-host of the Strict Scrutiny podcast. “They’re opening up the possibility of much broader potential exclusions,” she says. Such a decision could call into question decades of progress fighting sex discrimination. After all, differences between men’s and women’s bodies have been used for much of human history to justify treating women as inferior to men. The Trump administration has been open about its desire to return to those old days—from Defense Secretary Pete Hegseth’s opposition to women in combat to the White House’s reported consideration of proposals for “baby bonuses” to incentivize women to have more children. Even the title of the Defending Women executive order reflects early-1900s logic that the government needs to protect women due to their inherent fragility—an idea the Supreme Court rejected during the sex equality revolution of the 1970s, Shaw argues in a recent law journal article. And at a December press conference announcing a rule targeting trans teenagers’ medical care, Deputy Health Secretary Jim O’Neill described gender roles as divinely ordained. “Men are men. Men can never become women,” he paraphrased Mailman. “Women are women. Women can never become men.” Then he went a step further: “At the root of the evils we face—such as the blurring of lines between sexes and radical social agendas—is a hatred for nature as God designed it and for life as it was meant to be lived.” It’s the focus on transgender people that gives the administration “cover” to pursue this broader regressive agenda, Ziegler argues. For that strategy, she credits Mailman and her allies. The Defending Women order “is about to matter in a big way,” she says. “It created political cover for all of these changes that are going to affect trans people, queer people, along with cis, straight men and women.” Mailman left the White House in early August, pregnant with her third child. But she’s found it hard to step away entirely. In addition to rejoining Independent Women, she has launched her own consulting firm and is representing Netflix as it attempts to acquire Warner Brothers Discovery (reportedly alongside Kellyanne Conway, a Trump 1.0 loyalist who used to be on IWF’s board). She also continued to work for the administration in its negotiations with Harvard. At the time we spoke, she hadn’t turned in her government laptop. On her last official day in the White House, the Wall Street Journal published a story titled, “The Conservative Women Who Are ‘Having It All,’” with Mailman prominently featured. She’d been flying on weekends from DC to Texas, where her husband, who owns a tree-transplanting company, took care of their children with a nanny’s help, the Journal reported. “In theory, I would love to be a trad wife,” Mailman confided. She’d intentionally picked a husband who made more money so she “wouldn’t feel trapped” in the workplace, she said. But she didn’t feel guilty about missing time with her kids: “I don’t have a victimhood mentality.” For all the praise that conservatives heaped on Mailman for her work in the White House, these details about her home life rubbed some the wrong way. A few weeks later, the Institute for Family Studies, a right-wing think tank, started publishing rebuttals to the Journal article—and to the lifestyles of the conservative women it featured. “There is no boss, no industry, no political administration or nation who needs a woman more than her children need her,” one writer, Maria Baer, reprimanded. Baer was calling out Mailman for defying the gender ideals that social conservatives were working so hard to promote. And then Baer stuck in the knife: It was a matter of biology for women to devote themselves to mothering. “We pursue high-powered careers because we want to make an impact, to leave a legacy, to be remembered, or to change the world,” Baer wrote. “There is no surer way to accomplish each of these than by mothering our own children—a job which, by definition, no one else in human history can do.” Mailman probably shouldn’t have been surprised. But the criticism from an organization she respects came as a blindside. “It was frustrating,” she tells me on the phone, her baby fussing in the background. “I felt like I was getting critiqued on something that I literally was actually doing the opposite on.” She’d joined the Trump transition team thinking her tenure would be brief, she says, then accepted a job in the administration to “help my friends,” but only for six months. She’d repeatedly said no to working in the White House “because I wanted to be around my young kids and my husband, not for any cultural pressure reason, but that’s what’s best for me and for what I wanted.” It was yet another reminder that, despite Mailman’s insistence that defining sex narrowly wouldn’t affect women’s equality, right-wing groups can’t be counted on to go along with that rosy thinking. Nor did it seem to strike her as contradictory that being able to pursue “what’s best for me and for what I wanted” depends on the very feminist gains that those groups—now armed with the Defending Women order—are working to undermine. But Mailman was too busy to be upset at her allies-turned-critics. “Everybody is going to have their own opinion about everybody else,” she says. “You just move on.”

Oral arguments at the Supreme Court on Monday over the president’s power to remove the commissioners of independent agencies left little doubt that its Republican-appointed justices are about to fundamentally reorder our system of government. They appear ready to eliminate most pockets of expertise and nonpartisanship that we rely on as stewards of important economic, political, scientific, and regulatory power. They will do this, if this morning’s arguments are any indication, without grappling with the predictable and disastrous fallout, with the endpoint of their own logic, or the historical record to the contrary. Instead, the six Republican appointees appear ready to race headlong into a Trumpian future in which no agency or decision is beyond the reach of the precedent’s political cronies.  “You’re asking us to destroy the structure of government,” Justice Sonia Sotomayor observed Monday, “and to take away from Congress its ability to protect its idea that the government is better structured with some agencies that are independent.” FTC Commissioner Rebecca Slaughter, a Trump and Biden appointee whose case is now before the court, sued after Trump fired her in March for not aligning with his agenda, despite his being prohibited from removing commissioners except for “inefficiency, neglect of duty or malfeasance in office.” Slaughter’s case hearkens to the earliest days of the republic, when Congress first created independent agencies with limits on the president’s ability to remove the commissioners who run them. In their modern incarnation, beginning in the late 19th century, Congress has placed these agencies under the direction of a bipartisan group of commissioners who serve set, staggered terms and can only be removed for cause. The goal is to create expertise and independence, so that some of the government’s work is insulated from the abusive pull of political decision-making. In 1935, a unanimous Supreme Court upheld the for-cause removal protections for independent agency commissioners in a ruling known as Humphrey’s Executor. But since taking office in January, Trump has removed the Democratic commissioners from several of these agencies, in violation of the Humphrey’s Executor precedent and multiple laws, seeking to eliminate their independence. He’s fired Democratic commissioners of the National Labor Relations Board, the Merit System Protection Board, the Consumer Product Safety Commission, and the FTC’s Slaughter. It wasn’t a mystery where this case was headed. For years, the Roberts Court has sought to weaken and undermine Humphrey’s Executor, to reshape the federal government as a quasi-monarchical institution in which the president controls everything in the executive branch. This goal is intellectualized through the unitary executive theory, an invention of Ronald Reagan’s administration—in which Roberts and Justice Samuel Alito both served—to arrogate more power to the White House when Democrats had an unshakeable hold on Congress. > This is the whole problem in a nutshell: The majority does not really think it > is bound by its own logic. This year, the GOP wing of the court has been so eager to overturn Humphrey’s Executor that it actually couldn’t wait for the chance to issue a decision to render the precedent a nullity in practice. Thus, since Trump began firing Democratic commissioners, in January, the Supreme Court has repeatedly stepped in to allow those firings to take effect while the litigation over them proceeds, even though the firings clearly violated both the law and Humphrey’s Executor.  Despite the obvious direction this court was moving, it was still unsettling to hear six justices completely unwilling to acknowledge and wrestle with the consequences of overturning a 90-year-old precedent that acts as a pillar of the separation of powers that endeavors to protect key government functions from the corrosive effects of partisan politics. Take this exchange between Justice Elena Kagan, Solicitor General John Sauer, and Alito. Kagan began by pressing Sauer on the logical consequences of his argument that all the executive power rests with the president, such that he must be able to remove anyone engaged in executive branch functions. What about courts set up by Congress—separate from federal courts under the federal judiciary—such as the Tax Court and the Court of Federal Claims? What about civil servants and government employees? Sauer demurred that laws protecting civil servants and other employees haven’t been challenged—yet. “I know you haven’t challenged it,” Kagan responded. “It’s really, the question is, ‘Where does this lead? What does it take you to, given what your primary rationale is?” Then Alito piped up to suggest that maybe the court could just blow up our system of government without thinking through these pesky details. “Suppose we were to decide this case in your favor without reaching some of the agencies that have been mentioned, like the Tax Court and the Claims Court and the Court of Appeals for the Armed Forces,” Alito asked Sauer. “What would you propose that we say so as to reserve decision on those agencies?” Sauer happily responded that the court could simply say that it was withholding judgement on them. An exasperated Kagan jumped back in. “Our logic has consequences,” she said. “Once you use a particular kind of argument to justify one thing, you can’t turn your back on that kind of argument if it also justifies another thing in the exact same way. And so, putting a footnote in the opinion saying we don’t decide X, Y and Z, because it’s not before us, doesn’t do much good if the entire logic of the opinion drives you there.” This is actually the whole problem in a nutshell. The majority does not really think it is bound by its own logic. Next month, the Court is going to decide whether Trump can remove a governor of the Federal Reserve Board, a removal that could spook the markets and have more immediate and disastrous economic consequences than his takeover of the FTC. And so the court appears poised to allow the president to take over the agencies it wants to transform into political entities, and preserve the independence of the ones it wants to keep independent, and use words like “uniquely structured” and “distinct historical tradition” to pretend this isn’t a consequentialist, results-driven exercise in hackery. On the other hand, if the justices want to embrace the logic that civil service laws violate the president’s executive power, then it will continue in this vein until it has replaced all experts and meritorious hires with cronies and nepo babies.  Just as the Republican justices avoided this logical incongruity, they also avoided the consequences of reordering some of the government, from an arrangement in which experts, scientists, and bipartisan commissions control at least some sensitive and technical decision-making to one in which political favoritism and corruption rule. Jackson pushed that issue repeatedly at oral argument. > The entire oral argument was infused with contempt for Congress’ authority and > democratic legitimacy. “My understanding was that independent agencies exist because Congress has decided that some issues, some matters, some areas should be handled in this way by nonpartisan experts,” she said. “So having a president come in and fire all the scientists and the doctors and the economists and the PhDs, and replacing them with loyalists and people who don’t know anything, is actually not in the best interest of the citizens of the United States.” Relatedly, Jackson continued, why should the president’s desire to control everything take precedence over Congress’ judgment that some functions should be run by independent agencies? “Given the history of the monarchy and the concerns that the Framers had about a president controlling everything,” she asked, why shouldn’t Congress’ judgment prevail? Jackson returned repeatedly to the idea that Congress has the authority to create independent agencies, as well as to the idea that Congress oversees them. Justice Amy Coney Barrett portrayed independent agencies as “not answering to either the President or to Congress”; Justice Brett Kavanaugh called them “unaccountable” and worried that they cause “real-world problems for individual liberty,” though he didn’t name any. Sauer alleged a “power vacuum” in which independent agency commissioners exercise enormous control without answering to the president.  “I really don’t understand why the agencies aren’t answering to Congress,” Jackson said. “Congress established them and can eliminate them. Congress funds them and can stop. So to the extent that we’re concerned that there’s some sort of entity that is out of control and has no control, I guess I don’t understand that argument.” Indeed, the entire oral argument was infused with contempt for Congress’ authority and democratic legitimacy. The Republican-appointees prefer to give the president unlimited power than to allow Congress to create the agencies it sees fit; and they see Congressional oversight not as part of its constitutional function but as a problem.  Finally, though the conservative justices have spent decades touting their originalist methodology—which seeks the answer to constitutional and statutory questions in historical analogues and the Constitution’s original public meaning—they almost completely ignored the actual history of independent agencies. Since the Roberts Court began to move rapidly toward the unitary executive theory, historians and legal scholars have gone back to the archives to see whether there’s actually historical evidence for eliminating independent agencies and giving the president unfettered removal power. It turns out there are lots of historical examples of independent agencies and restrictions on presidential removals going back to the Founding era—as multiple amicus briefs in this case laid out.  “Independent agencies have been around since the founding,” Sotomayor said. “The Sinking Fund, the War Commission—we’ve had independent agencies throughout our history. So this is not a modern contrivance.” But the conservatives saw our status quo—in effect, in some form, for 250 years—as the real threat. Chief Justice Roberts, for example, worried that Congress might get power-hungry and decide to transform federal agencies like the Department of Education into independent agencies run by independent commissioners. That example is far-fetched at the moment: Congress created the department and now is sitting idly by as Trump unilaterally dismantles it. Nevertheless, this seemed a bigger worry for the conservative bloc than the actual, predictable consequences of letting Trump get his hands on every pocket of independence: further self-enrichment, retribution, chaos, and the other tragedies that stem from clowns running the circus. This is what it looks like when Supreme Court justices are completely unburdened by history, the logical conclusions of their own reasoning, and the real-world consequences of their own actions. And we are all along for the ride.

On Wednesday, the Supreme Court will hear oral arguments in Hamm v. Smith, a death penalty case that will decide whether intellectual disability can be ruled out on the basis of IQ tests alone. Long before he was convicted of murder in 1997, Joseph Clifton Smith was placed in schooling for an intellectual disability. Smith had five documented IQ test scores by the time he was tried, all around the bottom five percent of the population—four of which, his legal team has argued, fall in the range of mild intellectual disability. The state of Alabama disagrees: anyone scoring 70 or above on one test, its attorney general contends, is intelligent enough to execute. In 2022, the Eleventh Circuit Court of Appeals rejected that argument—setting the stage for a Supreme Court turnaround on IQ and capital punishment. > “If you tilt your head just right and squint…without considering anything > else, then you get the result [Alabama] thinks you should get.” The Supreme Court has previously stated that IQ tests alone fail to holistically determine intellectual disability, in 2002’s Atkins v. Virginia—which also established that executing people with intellectual disabilities violated the Eighth Amendment—reaffirmed in 2014 in Hall v. Florida, and most recently in 2017’s Moore v. Texas. But Atkins and Hall were close decisions, and the Court’s conservative majority has since grown. “It’s important to have a holistic assessment of the person,” said Shira Wakschlag, general counsel and senior executive officer for legal advocacy at The Arc, such as educational records and other documentation from childhood. IQ scores are a factor in determining intellectual disability, Wakschlag said, but they vary, and the tests don’t always offer consistent results. An amicus brief from the American Psychological Association, American Psychiatric Association and Alabama Psychological Association in support of Smith’s case similarly argued that “because the diagnostic inquiry is necessarily holistic and requires the exercise of clinical judgment, no single datum—such as IQ test scores—is dispositive of intellectual functioning.”  An October filing by Alabama’s Department of Corrections commissioner, John Q. Hamm, pushes for a very narrow definition of intellectual disability defined by an IQ below 70, and argues that “the ‘holistic’ rhetoric’ is ‘just window dressing’ for a novel and indefensible change in constitutional law.’” “If you tilt your head just right and squint, and apply this particular statistical principle in isolation, without considering anything else, then you get the result that [Alabama] thinks you should get,” said University of New Mexico School of Law adjunct professor Ann Delpha, whose work focuses on intellectual disabilities and the justice system. “That’s not what intellectual disability is about.” “The court has said repeatedly…at different times, that intellectual disability is determined through clinical judgment, through a comprehensive analysis,” Wakschlag said. “It is not a number.” The Supreme Court’s decision to hear the case is perhaps unexpected, given the clear precedent in its rulings that IQ tests are not enough to establish intellectual disability, and may signal a likely break with precedent. A decision that effectively overturns the Court’s past rulings on intellectual disability and the death penalty would encourage states to define down intellectual disability, and any safeguards that come with it, in their criminal justice systems—in line with a wider push, echoed by conservative proposals like the Heritage Foundation’s Project 2025, to strip disability protections from schools, workplaces, and other sites of public life.

Even if you have no idea what a crisis pregnancy center is, the donor website for the First Choice Women’s Resource Centers chain in northeastern New Jersey offers plenty of clues: Prominent logos for the anti-abortion groups Heartbeat International and CareNet. A home page banner proclaiming “Sanctity of Human Life Sunday 2026.” An agreement for prospective volunteers that states, “I openly acknowledge my personal faith in Jesus Christ as my Lord and Savior,” and “[I] reject abortion as an acceptable option for any woman.” That’s what appears on the website directed at First Choice’s donors. The chain also has two websites targeted at potential clients—pregnant women who might be seeking an abortion but end up on the crisis pregnancy center website instead, where First Choice is less clear about its religious ties and anti-abortion mission. “Learn more about the abortion pill, abortion procedures, and your options in New Jersey,” one site urges on its home page. “We specialize in pre-termination evaluations,” another site says, with services that include “free and confidential Abortion Information Consultation” and “post-abortion support.” On most pages, it is only at the very bottom that the qualifier, First Choice “do[es] not perform or refer for” abortions, appears. Websites that tell anti-abortion supporters one thing and pregnant women something else are common among the country’s 2,500 crisis pregnancy centers, or CPCs—part of a well-documented history of using misinformation and deception, as well as free ultrasounds and other services, to deter women from having abortions. Some of the best-known strategies include opening “fake” clinics near real abortion clinics, misstating the purported harms of abortion and emergency contraception, and pushing the unproven medical procedure known as “abortion pill reversal.” > Blue states have repeatedly tried to rein in CPCs. But as faith-based > organizations, pregnancy centers have a powerful shield—the First Amendment. Blue-state lawmakers and attorneys general have repeatedly tried to rein in CPCs. But as faith-based organizations, these pregnancy centers have a powerful shield—the First Amendment. When states try to regulate them, CPCs invariably claim that these efforts violate constitutional protections for free speech, religious expression, and freedom of association. In a landmark 2018 decision, the US Supreme Court sided with the CPC industry, blocking a California law that would have required pregnancy centers to inform patients about state-funded family-planning services, including abortion. That decision chilled state and local efforts to curb CPCs’ more controversial practices, creating what one legal scholar has called “a regulatory dead zone.” Meanwhile, since the fall of Roe v. Wade, the number of CPCs has grown—boosted by a surge in state funding and private donations—and reproductive rights supporters have renewed their push for greater oversight, this time focusing on consumer protection. On Tuesday, the Supreme Court will hear arguments in its latest CPC case, this one involving New Jersey’s efforts to investigate whether First Choice may have misled consumers. The question before the court is technical: Can CPCs run directly to federal court to fight an attorney general’s subpoena, as First Choice did, or must they first go to state court? As reporters Garnet Henderson and Susan Rinkunas recently wrote in Mother Jones and Autonomy News, the answer could have sweeping consequences for the $2 billion-a-year CPC industry: > Boring as this procedural quibble may seem, a favorable decision would be a > significant win for CPCs. They have a much better shot at winning any case in > the Trumpified federal courts than they do in state courts that may be more > supportive of abortion rights. What’s more, the ability to use friendly > federal courts as a shield from state regulation would set pregnancy centers > up for success in other lawsuits making their way to the Supreme Court—ones > that could eliminate states’ ability to crack down on [abortion pill reversal] > and other questionable practices entirely. But the case has also raised concerns among groups aligned with progressives that the same type of subpoenas issued by New Jersey against First Choice could be weaponized against humanitarian groups, journalists, and protesters. “The problem is bipartisan,” the ACLU wrote in one amicus brief. While New Jersey focuses on crisis pregnancy centers, “Florida’s attorney general pursues restaurants for hosting drag shows,” and Missouri’s attorney general investigates chatbots “to find out why they express disfavored views about President Trump.” In another brief, lawyers for Annunciation House, a Texas nonprofit that has been targeted for providing shelter and support to immigrants, wrote, “Nonprofit organizations—which rely heavily on volunteers—bear the heaviest burdens when faced with…state investigatory demands.” The stakes, the brief said, “can be existential.” The case dates from November 2023, when New Jersey Attorney General Matthew Platkin—an abortion rights supporter and CPC critic—issued a subpoena against First Choice as part of an investigation into whether the pregnancy chain was “misleading donors and potential clients into believing that it was providing certain reproductive health care services,” Platkin’s office states in a brief. The subpoena was broad, seeking 10 years’ worth of emails, videos, handbooks, the identities of many of its donors, and other information about First Choice’s ads and solicitations, its services and staff, and its claims about medical procedures, including abortion pill reversal. State and federal agencies have been using similar subpoenas to investigate potential violations of the laws they enforce for over 150 years, Platkin’s brief points out. Such subpoenas are not “self-executing,” meaning that Platkin’s office didn’t have the power to enforce them. Instead, in New Jersey and the rest of the country, the long-accepted procedure for enforcing or challenging a state agency’s subpoena is to seek relief in state court. If First Choice disagreed with the ruling from a New Jersey court, it could then plead its case in federal court.  But First Choice’s attorneys—the conservative legal behemoth Alliance Defending Freedom—cried foul, saying the CPC had done nothing wrong and accusing Platkin of “selectively target[ing] the nonprofit based on its religious speech and pro-life views.” Pregnancy centers “have been subject to a shocking level of violence and intimidation,” ADF asserted in one court filing. “First Choice is concerned that if its donors’ identities became public, they may be subjected to similar threats.” > “We haven’t forced those services on anyone. We haven’t charged any women for > the services we provide…. Yet Platkin calls this kind of caring ‘extremist.’” The lawyers also pointed to a 2021 Supreme Court precedent blocking California’s efforts to force charities and nonprofits in the state to report the identities of their major donors. According to ADF, the Platkin subpoena was so concerning that First Choice should be able to seek immediate relief in the federal courts, rather than having to expend time and resources litigating the issue first in state court. The ADF team—including Erin Hawley, wife of Missouri GOP Sen. Josh Hawley—compared Platkin’s investigation to Southern states’ attempts to force the NAACP to produce member lists in the late 1950s and early ’60s.  In an op-ed for NJ.com, First Choice’s executive director, Aimee Huber, noted that in 2022 alone, CPCs throughout the US provided 500,000 free ultrasounds, 200,000 STI tests, 3.5 million packs of diapers, and 43,000 car seats to women and families in need. “Over the last 40 years, First Choice has been privileged to offer crucial resources to more than 36,000 women across our state. We haven’t forced those services on anyone. We haven’t charged any women for the services we provide…Yet Platkin calls this kind of caring ‘extremist.’” But courts have repeatedly ruled that the case wasn’t ready—or “ripe”—to be litigated in federal court. A state judge, meanwhile, ordered Platkin and First Choice to negotiate to narrow the subpoena’s scope. The first time First Choice asked the Supreme Court to weigh in, back in February 2024, the justices declined. But when ADF tried again, this past spring, the court took the case. Most of the amicus briefs siding with First Choice are from a predictable collection of anti-abortion and conservative or libertarian groups, including red-state attorneys general, Republican members of Congress, the Second Amendment Foundation, and the Koch-funded American Legislative Exchange Council, or ALEC. But the CPC chain also received support from some unexpected quarters, including animal rights activists, the Reporters Committee for Freedom of the Press, and the Foundation for Individual Rights and Expression, represented by the ACLU.  In its brief, the humanitarian relief group Annunciation House described being hit with an investigative subpoena by Ken Paxton in 2024 demanding that it immediately turn over thousands of documents about immigrants and refugees it has helped—including sensitive medical and personally identifiable information—or face being shut down. The subpoena touched off a grueling, costly fight in state courts, with the Texas Supreme Court ultimately siding with Paxton. “The chilling effect impacts not only the targeted nonprofit, but also the broader nonprofit community, as organizations may avoid lawful speech or actions out of fear that they will lead to investigatory scrutiny,” the Annunciation House lawyers write. “Left unchecked, the [subpoena] process becomes the punishment.” In an interview with Mother Jones, Grayson Clary, a lawyer at the Reporters Committee, raised similar concerns. “Well beyond the context of this crisis pregnancy center, we have seen more state attorneys general trying to use their consumer protection authorities in new and potentially troubling ways, including to investigate news organizations,” he said, pointing to a Missouri case targeting the left-leaning Media Matters. “Saying, ‘We’re not after the journalism—we’re just protecting the consumers’ is often a fig leaf for efforts to control the content that a news organization is putting out.” “In practical terms,” Clary said, “what’s at stake in this question is how much of a tax does a state attorney general get to place on you for speaking, or for publishing news that they might disagree with, before you get a chance to ask a court to put a halt to it? And that question really can, in practical terms, be life or death, especially for a smaller or nonprofit news outlet,” On the abortion-rights side, what is most surprising about the amicus briefs is that they are nonexistent. But one group paying close attention to the case is Reproductive Health and Freedom Watch, a CPC watchdog. “If the Court finds in favor of this pregnancy center,” executive director Debra Rosen says, “I worry that it’s going to chill further scrutiny into this massive [CPC] industry.” Instead, amicus briefs in support of keeping the First Choice case out of federal court come from agencies that routinely issue investigative subpoenas, including blue-state attorneys general and state medical boards. The consequences of adopting First Choice’s argument would be “far-reaching,” Platkin’s office argues, “turning every quotidian subpoena dispute into a federal case.” The Supreme Court is expected to rule in the case by next summer.

After Wednesday’s oral arguments at the Supreme Court, it appears that a majority of the justices will vote to halt Trump’s imposition of sweeping tariffs under a 1977 emergency powers act. But a loss for Trump will, in fact, be doing him a favor. And the GOP-appointed justices—who have spent the past 10 months giving Trump virtually everything he wants—surely know this.  > An anti-Trump turn is a problem not just for the president, but also for the > Republican-appointed justices. Beginning in February, Trump imposed sweeping and ever-changing tariffs on nearly every nation in the world. The Constitution explicitly gives Congress the power to levy tariffs and taxes. But Trump claims an unlimited tariff power under the International Emergency Economic Powers Act (IEEPA), a 1977 law that authorizes the president to respond to “any unusual and extraordinary threat” from abroad. This includes the power to “regulate… importation or exportation of…property in which any foreign country or a national thereof has any interest.” The word “regulate,” Solicitor General John Sauer argued on Wednesday on behalf of Trump, must be read to include “tariff regulation,” which he called “the quintessential, most historically-tested method of regulating imports.” The response from the small businesses challenging the tariffs, as their lawyer Neal Katyal put it during arguments, is that this reading is nonsensical. “It’s simply implausible that in enacting IEEPA, Congress handed the president the power to overhaul the entire tariff system and the American economy in the process, allowing him to set and reset tariffs on any and every product from any and every country at any and all times,” he said. The three liberal justices seemed to agree, and were joined by several Republican appointees who also showed serious doubts—likely enough to count to at least a five-vote majority to knock down Trump’s tariffs. Chief Justice John Roberts, who has used his position to do Trump a lot of favors, noted that Trump’s use of IEEPA to claim an unlimited tariff authority ran up against the separation of powers. Tariffs are “taxes on Americans, and that has always been the core power of Congress,” he said. Justice Neil Gorsuch, likewise a reliable pro-Trump vote, worried that gifting Trump a vast power to impose tariffs would be a “one-way ratchet toward the gradual but continual accretion of power in the executive branch and away from the People’s elected Representatives.” (This is not a worry Gorsuch expressed when he and other GOP appointees voted to exempt the president from criminal laws Congress wrote, or when they let Trump withhold funds appropriated by Congress, fire commissioners protected by Congress, gut agencies enacted by Congress, and ignore other statutes passed by Congress.) Something about taxes seems to reignite the GOP justices’ appreciation for democracy. Near the end of Wednesday’s hearing, Justice Sonia Sotomayor voiced the same basic concern: “What we’re forgetting here is a very fundamental point, which is the Constitution is structured so that if I’m going to be asked to pay for something as a citizen, that it’s through a bill that is generated through Congress. And the President has the power to veto it or not, but I’m not going to be taxed unless both houses, the executive and the legislature, have made that choice.” She continued: “The president threatened to impose a 10 percent tax on Canada for an ad it ran on tariffs during the World Series. He imposed a 40 percent tax on Brazil because its Supreme Court permitted the prosecution of one of its former presidents for criminal activity. The point is, those may be good policies, but does a statute that gives, without limit, the power to a president to impose this kind of tax, does it require more than the word ‘regulate?’” It seems likely that a majority will agree that “regulate” is not enough to transform the world economy and bestow on Trump the kind of erratic and unbound power Sotomayor described to impose tariffs whenever it strikes his fancy.  But in knocking down Trump’s attempt to impose tariffs under IEEPA, the justices who have been so solicitous of his desires would be doing Trump another favor. Of course, the president, whose one consistent policy preference in life has been for protectionism, is unlikely to see it that way. Trump has weaponized tariffs as a means of control, not just over other countries, but as a tool to punish and reward loyalty from powerful Americans. But in doing so, he will make prices go up and employment go down. Those are not the conditions that a winning political party presides over. It was likely not lost on the justices that hours before oral arguments, Democrats won sweeping victories in off-year elections. In the New York City mayoral election, Zohran Mamdani, a democratic socialist, won a resounding victory in what began as a long-shot campaign focused on the soaring cost of living. Democrats likewise won gubernatorial races in Virginia and New Jersey by focusing on affordability and won voters who said the economy was their foremost concern. As Trump builds a ballroom while withholding food aid, voters are increasingly skeptical of the idea that he is putting their wellbeing first. As their discontent grows, an anti-Trump turn is a problem not just for the president, but also for the Republican-appointed justices, who may see their own majority on the court dismantled if Democrats return to power in 2028. Moreover, the Republican justices are firmly embedded in the larger project of elevating the interests of the GOP’s wealthy, white, and conservative Christian stakeholders. They have gone to bat for these interests again and again, including in their embrace of Trump. Letting Trump go wild with tariffs might, ultimately, help unravel that project. One of the keys to cementing authoritarianism is to preserve a sense of normalcy while consolidating control. The way to do this—to allow most Americans to go about their days as they did before—is to make sure the economy stays on track. But Trump’s predilection for tariffs, and the levers of power they give him, make him an economic menace. Reining in Trump’s ability to issue tariffs in such a disruptive manner would ease his immediate economic impact, while still allowing him to impose some tariffs under other authorities. Roberts and some of his fellow conservatives on the Court may understand that to win the war, Trump must lose the battle.  There is another element to the GOP wing’s political calculus. The ultra-wealthy donors who have spent millions create the court’s conservative 6-3 majority oppose these tariffs. The Koch network and its allies lean libertarian, and groups they support to pursue deregulatory and anti-labor agendas have signed on to represent the anti-tariff position in this case. Given that, a potential loss for Trump should not be taken as a simple win for liberals or the separation of powers, but primarily as a win for the plutocrats that the Roberts court has empowered and enriched for 20 years. They aren’t opposed to Trump, but they want to curb his anti-capitalist impulses. If they win, it will show they retain significant sway in the Republican firmament. But if instead, after all the skepticism the justices showed for Trump’s tariffs, they grant him sweeping tariff power under IEEPA, it will demonstrate just how much sway he has over the justices—despite their better judgment.

On Wednesday, the Supreme Court will hear oral arguments over President Donald Trump’s decision to impose tariffs on almost every nation on earth, in ever-changing amounts, whenever he feels like it. Legally, this is a case about any number of complicated questions and legal doctrines, including the president’s ability to declare emergencies under the International Economic Emergency Powers Act, the court’s novel major questions doctrine, its dormant non-delegation doctrine, the proper venue for challenging the tariffs, and the proper statutory interpretation of IEEPA. > “This is not just a battle over tariffs.” It’s a battle over just who is in > charge of the GOP. But these questions will almost certainly be window-dressing on a decision driven by how Chief Justice John Roberts and the other five Republican appointees navigate between the two stakeholders in this case: the powerful billionaires and business interests behind the challenge to the tariffs and Trump’s desire to transform the economy into an arm of his personalist rule. “This is not just a battle over tariffs,” explains Evan Bernick of the Northern Illinois University College of Law. “It is a battle between competing political economies within the American right. And how it works out will speak to just who ultimately has hegemony, who… is shaping the law of the United States.” While Bernick expects the businesses and states challenging the tariffs to prevail, “if they do not,” he says, “that tells me things about the relative power of these competing factions that I did not previously know.” In February and again in April, Trump cited IEEPA when imposing his sweeping—and sometimes very high—tariffs, some of which he went on to pause. While the Constitution grants Congress the power to impose tariffs, Trump claimed his actions were a legitimate use of that 1977 law, which gives presidents power to respond to “any unusual and extraordinary threat” from abroad, even though IEEPA doesn’t specifically name tariffs as an available tool. The court is hearing two consolidated cases brought by multiple small businesses. Some of the companies’ challenges were brought with support from ideologically conservative and libertarian nonprofits funded by wealthy Republican-allied donors, most notably the Koch network. For decades, the Kochs and their fellow-traveling tycoons, along with the religious right, channeled millions of dollars into a project to capture the Supreme Court, successfully creating a loyal 6-3 conservative majority. Beginning in 2005 with Roberts’ nomination, the Federalist Society vetted Republican nominees and their allies helped win their confirmations with lots of money. As Lisa Graves, who leads the judicial watchdog group True North Research and has published a new book on Roberts, recently told me, “Roberts is really the beneficiary of the first billionaire-backed campaign to capture the US Supreme Court.” He’s spent the last 20 years implementing their agenda.  The Roberts Court consistently rules for the interests of this small set of billionaire political donors, whose money flowed to the Federalist Society and other activist groups that helped each of the Republican-appointed justices reach the high court. Further, under Roberts, these members of the court have increased the political power of the GOP and its wealthiest patrons. For example, the court has been dismantling the Voting Rights Act to the benefit of the GOP, a project they will likely finish in the next few months. It has also cut the power of labor unions, and, by overturning the long-held practice of courts deferring to agency expertise, declared open season on federal regulations that industry dislikes. In its stead, the justices invented the major questions doctrine to justify striking down executive regulations the court decides are “major” and that don’t have clear authorization from Congress, and created increasingly radical interpretations of the unitary executive theory that have weakened agency independence so that partisan politics can destroy industry regulation.  This clear preference for moneyed interests was detailed by employment lawyer Scott Budow in a 2021 law review article on how the Roberts Court has changed labor and employment law. He discussed 15 cases in which the justices cast a collective 134 votes. “There is no unifying judicial philosophy—such as originalism or textualism—that neatly explains why conservative justices would reliably vote in one manner and liberal justices in the opposite manner for these cases,” he concluded. “Yet, if all one knew was that conservative justices favor employers and liberal justices favor workers, that person would have correctly predicted 132 of the 134 votes cast.” That is 98.5 percent of the time. “Trying to interpret or anticipate what’s going to happen in cases involving Trump inside the four corners of legal reasoning will fail, and hasn’t really explained almost anything the Robert’s court [has done] for the last 20 years,” says Michael Podhorzer, the former political director of the AFL-CIO. “Instead, if you step back and think about the interests that elevated the six of them to the court, then that is really very clarifying.”  > This case has big business going up against the president. In their 2022 book The Scheme: How the Right Wing Used Dark Money to Capture the Supreme Court, Sen. Sheldon Whitehouse (D-R.I.) and attorney Jennifer Mueller breakdown not only the story of how a small handful of rightwing families and groups channeled millions to put allies on the court, but how they also fund an array of legal outfits to bring cases and file amicus briefs—filings that help to signal to the justices which way their benefactors hope they will rule. As Whitehouse and Mueller write, between 2014 and 2020, 16 rightwing foundations gave nearly $69 million to 11 groups that filed amicus curiae briefs urging the court to hobble the Consumer Financial Protection Bureau, which guards against predatory financial industry practices, as well as more than $33 million to the Federalist Society. These groups include the Washington Legal Fund, the Pacific Legal Foundation, the New Civil Liberties Alliance, and the Liberty Justice Center—all of which have used Koch money to challenge labor unions and weaken government regulations. Repeatedly, the GOP wing of the court has handed these organizations, and their donors, major victories. Those same four legal groups that worked so hard to disempower unions and destroy the regulatory state are now before the court with a new request: stop Trump’s arbitrary tariffs. They have a strong case, at least under the Roberts court’s precedents—after all, the justices have created a brand new doctrine, the major questions doctrine, and used it to strike down regulations without clear statutory authorization that industry doesn’t like. Tariffs on nearly every nation are by every measure “major” actions that can make or break businesses and reshape both the US and world economies.  But unlike in other major questions doctrine cases, when industry was pitted against Democratic priorities like environmental regulations or student debt relief programs that the six conservative justices struck down, this case has the business community going up against the president. Trump, too, has been on a winning streak before the six GOP justices, who have repeatedly used their emergency or shadow docket to greenlight the president’s agenda, from slashing the federal bureaucracy to detaining suspected immigrants based on the color of their skin. As of last month, Trump had won some 21 emergency appeals to the court. The Republican wing even restricted lower courts’ authority to grant relief from Trump’s policies. The logical conclusion is that the justices are either on board with Trump’s authoritarian project, protective of his political coalition, or possibly also afraid to cross him for fear he disobeys their orders. Perhaps it is a combination of these factors, but the result is a court that contorts itself—or remains completely silent—in order to repeatedly rule in Trump’s favor. As Justice Ketanji Brown Jackson wrote in a dissent in August, analogizing her colleagues jurisprudence to a make-believe game from Calvin and Hobbes: “Calvinball has only one rule: There are no fixed rules. We seem to have two: that one, and this Administration always wins.” But this time, the administration is up against the court’s other preferred client, and one of their winning streaks must come to an end. One view of what’s coming starts with the solid premise that while ultrawealthy business interests don’t agree with all of Trump’s agenda, they prefer him to a Democrat. If we presume that Roberts and the court’s other Federalist Society recruits similarly view Trump as an essential—even if often misguided—element of their project, then they will try to limit his tariffs without strongly rebuking him. “I think the calculus that they’re going through is basically, ‘Would trying to stop him there lead to electoral defeat, or not? Is it too damaging to them?’” says Podhorzer, who also expects the court “at a minimum” will “do something that trims or constrains” Trump’s claimed tariff powers. “It’s important to look at whatever they end up doing as a reflection of where that business community is right now,” he adds. A decisive victory for Trump might signal that big business will tolerate a tariff regime in which they write multi-million dollar checks to Trump’s ballroom project in exchange for waivers—although they don’t seem to be there yet because, after all, they did help bring this challenge in the first place. A big Trump win could also signal that the justices themselves sense a fundamental shift in where power lies on the right, from the moneyed interests that created the court to the openly authoritarian MAGA movement. Legally, there are a lot of ways the justices could resolve this case. But it will be more illuminating to think of the Republican wing not as judges weighing arguments but as mediators seeking a compromise between two competing factions of the same team.

President Donald Trump is demanding that the Justice Department transfer $230 million in taxpayer dollars into his own personal bank account. He can do this, because thanks to the Supreme Court’s recent decisions, the executive branch could accurately be described by King Louis XIV—L’état, c’est Trump. > When Trump says this is his decision to make, he’s probably right. At first you might think, ‘Can he do that? Can he just shakedown the DOJ for roughly a quarter of a billion dollars?’ And then you think about the Supreme Court opinions under Chief Justice John Roberts, in which the court has shifted the fundamental structure of American government such that federal agencies, including the Justice Department, are mere extensions of the president’s will. Trump, always on the lookout for the next grift, understands the immense power this bestows on him. The colossal cash transfer he is demanding is being described as compensation for investigations the department launched into Russia’s interventions in the 2016 election and Trump’s absconding with classified documents after his first term. Now that he’s back in the White House, Trump plans to make the government pay for its appropriate use of its ability to investigate and prosecute to safeguard our democracy. And he grasps the fact that he has the absolute power to do that. “With the country, it’s interesting, because I’m the one that makes the decision,” Trump said Tuesday, responding to news of the impending payments. “That decision would have to go across my desk. And it’s awfully strange to make a decision where I’m paying myself.” > Trump: "It's awfully strange to make a decision where I'm paying myself. But I > was damaged very greatly and any money I would get I would give to charity." > > — Aaron Rupar (@atrupar.com) 2025-10-21T21:17:21.012Z Strange indeed—especially since, technically, it is senior Justice Department officials who would officially sign off on the payments, not the president: Breaking the story on Tuesday, the New York Times framed the ethical conflict around the fact that several of the DOJ officials who could sign off on the payments were formerly Trump’s personal lawyers. That’s corruption, of course, but in the old school way of putting cronies in a position to help you. But we’re in a new world now, and Trump himself gets this: He decides, because he effectively controls every decision made at every agency (with the possible exception of the Federal Reserve). If he doesn’t like a decision, he can fire the person responsible. Their desk is now his desk. Don’t just take it from him: the Supreme Court said so. In a series of opinions, Chief Justice John Roberts has reinterpreted the Constitution to give Trump this power. This warping of our constitutional order is known as the unitary executive theory, and it posits that the framers gave the president complete control over the executive branch. Last summer, Roberts authored the infamous immunity decision, Trump’s forever Get Out of Jail Free card, which protected presidents from virtually all prosecution for official acts. That decision not only permitted Trump to break the law, it also gave him unfettered control over the investigative and prosecutorial functions of the DOJ—which presumably includes issuing payments to those he claims should be compensated for investigations gone awry. Which all is to say that when Trump says this is his decision to make, he’s probably right. As Roberts has handed the presidency more and more power over every inch of the government, he has never copped to the fact that he was enabling corruption, theft, or autocracy. Absurdly, he claimed to be increasing democratic accountability. “The framers made the president the most democratic and politically accountable official in government,” he wrote in a 2020 decision, because “only the president (along with the vice president) is elected by the entire nation.” It’s hard to take this with a straight face; the electoral college allows a president to win fewer votes and still assume office, and a president in his second term will not face voters again. (Although Trump may try.) Undeterred by these facts, Roberts wrote in a 2021 case that all executive branch decisions are ultimately the president’s to make: The executive power “acquires its legitimacy and accountability to the public through ‘a clear and effective chain of command’ down from the President, on whom all the people vote.” The absurdity of Roberts’ decision was laid bare Tuesday: The president gets to pay himself hundreds of millions in taxpayer dollars, because he controls all executive branch personnel and all of their decisions, and there’s probably nothing anyone can do about it. It sure doesn’t feel like our democratic accountability has increased. Of course, Congress could and should pass a law prohibiting such payments, and dare the Supreme Court to strike it down—but this Congress is unlikely to do even that bare minimum in response. What’s to stop Trump from paying allies the same way? Have them file a complaint with DOJ over some legal skirmish, and then order the department to pay them their reward. If Trump gains control of the Federal Reserve—as he is asking the Supreme Court to give him—he could similarly transform the country’s central bank into his own “bottomless slush fund,” as the Atlantic’s Rogé Karma reported last month. He could use the Fed to pay his businesses, his friends, and his donors. He could even keep ICE’s operations active by hiring private contractors during a government shutdown, Karma points out, circumventing Congress’ power of the purse. If Trump will transfer a quarter billion dollars from the taxpayers to himself, it’s clear that he wouldn’t shy away from any of these uses—and probably find more ways to profit that we haven’t even dreamt. Roberts can claim that he’s expanding democratic accountability. But at this point, we can all see the mess he’s created. A man who takes from the voters to line his pockets is not feeling all that accountable to anyone.

The Supreme Court, with its six-to-three Republican-appointed majority, appears ready to kneecap what remains of the Voting Rights Act’s protections for minority political representation. During Wednesday’s oral argument in Louisiana v. Callais, at least five conservative justices seemed ready to enfeeble the seminal civil rights law such that it will no longer stop white majorities from locking racial minorities out of elected office. After oral arguments, it’s clear that this cornerstone of American multi-racial democracy is in grave peril. > The conservatives are ready to wind the clock back to 1982, if not earlier. At issue in the case is Section 2 of the law, which requires that racial minorities have an equal opportunity to meaningfully participate in the electoral process. This provision has been used to strike down districting schemes and maps that prevented Black voters and other racial minorities from electing their preferred representatives. Since 1965, Section 2 has given people of color a seat at the table, from school boards to the halls of Congress. It appears this 60-year era is coming to an end.  “Race is a part of redistricting always,” Justice Sonia Sotomayor said, addressing the solicitor general from Louisiana, who was arguing against an existing map that had enabled the election of two Black members of Congress in his state. “What you’re saying to us [is]…’You can use [race] to help yourself achieve goals that reduce particular groups’ electoral participation, but you can’t use it to remedy that situation.'” Several GOP-appointed justices appeared uneasy with striking down Section 2 outright, and instead gravitated toward an approach advocated by the Trump administration which would preserve Section 2 in name only. The administration’s approach would allow states and localities to cut racial minorities out of the halls of power by claiming their maps were simply the consequence of respecting a state’s traditional redistricting principles and the legislature’s prerogative to seek partisan gain. While people of color could still go to federal court to claim they are being targeted by racial gerrymandering, it would be very difficult to prove that their plight was not the incidental result of partisan politics and historic district lines.  The Supreme Court’s recent precedents virtually ensure that this is a trap few disenfranchised plaintiffs will be able to escape. In 2019, in a decision by Chief Justice John Roberts, the GOP appointees held that federal courts have no role in policing partisan gerrymandering—a decision that greenlit our current moment in which President Donald Trump has demanded that his allies in state capitals redraw their congressional maps to give Republicans more seats. Then last year, in a decision by Justice Samuel Alito, the GOP majority ruled that lower courts should presume good faith on the part of legislatures charged with racial gerrymandering, if they maintain that party, not race, guided their map-drawing.  Being able to cite partisan motivation to deny minority voters equal opportunity in the electoral process would “swallow Section 2 whole,” Janai Nelson of the NAACP Legal Defense Fund argued Wednesday. “Party cannot trump the responsibility of states to ensure that all voters have an equally open electoral process,” she continued. “The idea that you have to show that party is the reason for the racially polarized voting would eclipse the entire Section 2 analysis, which is focused on ferreting out and ending race discrimination in the political process.” For several of the justices, however, that may not be a bug, but an alluring feature. Indeed, the Justice Department’s position gives the Republican appointees the opportunity to say they are simply interpreting Section 2 to comply with their own recent precedents on gerrymandering. Such a holding would make it extremely difficult to prove discrimination, without dirtying the GOP justices with the stain of wiping a hallmark civil rights law entirely from the books.  This case arose out of Louisiana, which drew a congressional map in 2021 with one black majority district out of six, even though Black Louisianans make up nearly a third of the state’s population. Multiple courts found this was a likely violation of Section 2, and so Louisiana redrew its map with a second majority-Black district. A group of non-Black voters then sued, alleging that this new majority-Black district was a racial gerrymander that discriminated against white voters. The question the court ostensibly considered at oral argument Wednesday was whether the creation of this second Black opportunity district violated the Fourteenth Amendment’s equal protection guarantee and the Fifteenth Amendment’s prohibition on racial discrimination in voting. > “The racially polarized political environment in Louisiana has become worse, > not better.” In their briefs, the lawyers for these non-Black voters, as well the state of Louisiana, pushed for a more aggressive rollback of Section 2. They argued that it should only address intentional discrimination, and not maps or policies with a discriminatory effect. Based on the justices’ reactions at oral argument, they might prevail in that claim. But it would be awkward for the court to outright ban a Section 2 effects test because it already did so in a 1980 case, Mobile v. Bolden. Two years later, Congress overruled the court’s interpretation and explicitly said that Section 2 can block apparently neutral electoral practices that nonetheless have discriminatory effects. If the court baldly overturns Congress’ sanctioning of such an effects test more than forty years later, it would be hard to make it look like anything besides defiance of the legislative branch. Instead, at Wednesday’s arguments justices considered other means to diminish or extinguish Section 2, including, as Justice Brett Kavanaugh pressed multiple times, enacting a time limit on its ability to require race-conscious maps to ameliorate racial discrimination. Justice Amy Coney Barrett appeared sympathetic, seemingly adopting the idea put forward by the non-Black voters that Section 2 may have been constitutionally warranted to enforce equality in 1965, but is no longer constitutional given current levels of discrimination. The idea, essentially, is that we have achieved some undefined benchmark of racial harmony that suddenly made Congress’ vision of Section 2 unconstitutional. There’s an irony to claiming that race-conscious remedies to racial discrimination are no longer warranted at the same time racial animus surges in our politics. In an amicus brief, Black legislators in Louisiana tell the court that “if anything, the racially polarized political environment in Louisiana has become worse, not better in recent years.” You don’t have to take their word for it. Just this week, Politico reported that a group chat of young Republican Party officials and staffers texted each other a constant stream of racial epithets and other derogatory language toward minority groups. Over approximately seven months of chat logs, “epithets like ‘f—-t,’ ‘retarded’ and ‘n–ga’ appeared more than 251 times combined.” But the reality is that the chat logs aren’t always leaked. It’s hard to prove intentional discrimination because it’s easy to hide, especially with the tools that the Supreme Court has already given to legislators to obscure racial targeting behind partisan maneuvering and the presumption of good faith. If the court’s conservative wing takes this path, it would ultimately be winding the clock back at least to 1982, if not earlier—a goal the chief justice has worked toward throughout his entire career. Roberts, then a young lawyer in the Reagan Justice Department, led the fight to weaken the Voting Rights Act during the 1982 reauthorization that overruled the court after Mobile v. Bolden. “Violations of Section 2 should not be made too easy to prove, since they provide a basis for the most intrusive interference imaginable by federal courts into state and local processes,” he wrote at the time. Roberts penned upwards of 25 memos opposing Section 2, arguing that it would lead to “a quota system in all areas.” The future chief justice argued that Section 2 should only be used to strike down instances of intentional discrimination, not laws that have the effect of discriminating against people of color. He lost that fight when Congress overwhelmingly reauthorized the law and reinstated the effects test—but now opponents of the VRA have resurrected Roberts’ arguments forty years later in the Louisiana case. Roberts has already succeeded in gutting the VRA on other fronts, most notably writing the majority opinion in the 2013 case Shelby County v. Holder, which held that states with long histories of discrimination no longer needed to approve their voting changes with the federal government. That eliminated the most effective part of the law. At the time Roberts wrote that the Shelby County ruling “in no way affects the permanent, nationwide ban on racial discrimination in voting found in Section 2,” but to no one’s surprise, opponents of the VRA are now on the verge of gutting the remaining provision of the county’s most important civil rights law. A decision overturning or crippling Section 2 would turbocharge the GOP’s current gerrymandering efforts. The loss of Section 2 would be devastating for communities of color and the Democratic candidates they tend to support, costing Democrats up to 19 House seats. As much as 30 percent of the Congressional Black Caucus could lose their seats, according to a report by Fair Fight Action and the Black Voters Matter Fund. Even by conservative estimates, Republicans could easily eliminate a half-dozen Democratic seats, leaving no Democratic representatives or majority-minority districts in Tennessee and Deep South states including Alabama, Mississippi, South Carolina, and Louisiana, where voting discrimination has historically been most prevalent.   Edward Greim, the conservative lawyer who represented the group of non-African-American voters that challenged the Louisiana map, asked the court to rule quickly so that Louisiana could draw a new map that would eliminate the seats of one or more Democratic representatives. The Supreme Court has already fast-tracked the case, which means that a ruling eviscerating Section 2 could come well in advance of the 2026 midterms, giving GOP-controlled states ample time to surgically eliminate Democrats seats and representation for communities of color. Beyond the midterms, weakening Section 2—however the justices choose to go about it—would almost certainly reconstitute state legislatures, city councils, judicial districts, and every other type of political boundary in which racial minorities could be excised from government. “The result,” as the Legal Defense Fund’s Nelson said at oral arguments, “would be pretty catastrophic.”

The current Supreme Court, helmed by Chief Justice John Roberts, has been focused on chipping away at civil rights laws and policies for 20 years. On Wednesday, the justices will hear oral arguments in a case that could represent not just another chip, but a fatal blow to the load-bearing pillar of American multi-racial democracy: The 1965 Voting Rights Act.   > The Republican wing is ready to jettison a seminal protection for minority > voters. Section 2 of the VRA requires that people of color have an equal opportunity to elect representatives of their choice. The goal of the legislation was to end the Jim Crow system in which Black people were shut out of the political process, particularly in the former confederate states. Over the past 60 years, the section has curtailed a wide range of discriminatory practices, while fostering the creation of districts where communities of color can elect candidates of their choice. To further weaken or dismantle Section 2 would allow states, cities, and other localities to lock racial minorities out of power, from Congress to school boards, across the country, and particularly in the South.  This challenge to Section 2 came from a group of non-Black Louisiana voters and their Republican-aligned lawyers who allege that the creation of a second majority-Black district in the state in compliance with Section 2 has actually violated their rights under the Fourteenth Amendment’s guarantee of equal protection and the Fifteenth Amendment’s prohibition on racial discrimination in voting. Their theory of the case is that creating equal voting rights for Black people is unconstitutional racial discrimination against white people. As they explicitly state in their briefing: “Rather than eliminating hard-to-reach discrimination, Section 2 is now discrimination’s main source and aggravator.” This case should have been decided last term when it came before the court. But rather than rule on the fate of Louisiana’s second majority-Black district on narrower grounds, the justices scheduled the case for reargument this week to address the question of whether using Section 2 to provide political opportunities to racial minorities is itself unconstitutional race-based discrimination against white people. The fact that the court, with its 6-3 GOP-appointed majority and its long history of going after voting rights and civil rights, chose to take up this specific question is a strong indication that the Republican wing will adopt a version of this argument, weakening or jettisoning a seminal protection for minority voters across the country. Legally, this is a perverse argument. The Reconstruction Amendments were adopted to end slavery and provide Black people with equal rights, including the right to vote. To use those same amendments as weapons of white supremacy today is not just legally incorrect—it is a tragedy.  The justices may want to focus on theoretical questions of how to apply the Constitution’s promises of a right to vote and the equal protection of the laws, as their framing of the arguments suggest. But the case isn’t just an academic dispute. It’s actually a case about facts, even if they may be largely absent from Wednesday’s oral arguments and the majority’s eventual opinion. The non-Black voters and their lawyers claim Section 2’s requirements burden states with intrusive federal oversight that is unjustified by current conditions. And so the question is, on their terms, if the state of Louisiana and the others have moved so far beyond where we were in 1965 that this law is no longer warranted. To ask Black people in Louisiana, the answer is clearly no. Take an amicus brief from the Louisiana Legislative Black Caucus, an association of state legislators, which details case after case of discrimination against their members and Black voters in the state. “Black candidates face both open and subtle racial indignities when campaigning and some have observed that open racism has only increased in recent years,” the brief states. “Without this vital bulwark against anti-Black policies and practices, ongoing efforts to gerrymander and dilute the Black vote will proceed uninterrupted. Black voters will be deprived of their right to meaningfully participate in the political process, plunging Louisiana into a new era of racial ignominy.” Here are a few choice examples from the brief:  > When one LLBC member recently went door knocking in a predominately white > neighborhood, he was questioned by a constituent as to why he was campaigning > there (despite it being squarely within his district). The not so subtle > message was that even as a Black elected leader, he was not welcome to walk in > this predominately white neighborhood. Another member, who has held public > office in various capacities for almost fifty years, has experienced open > racism on the campaign trail that is just as terrible, if not worse, than when > he began his career in the 1970s. Earlier in his career, neighbors who > disagreed (or took issue with the color of his skin) were still cordial and > polite as he went door to door for his campaigns. During his most recent > campaign, doors were slammed in his face. Racist comments were uttered as he > sought to engage with voters and constituents. > > In August, the mayoral race in New Orleans was marred by a leaked email in > which a major donor queried whether and when to inject racial conflict into > the campaign. The email referenced an allegedly fabricated story that the > staff of a Black candidate had called the donor’s preferred mayoral candidate > a “white devil.”… > > In 2018, LLBC member Representative Steve Jackson received a death threat when > running for mayor in Shreveport. Upon returning home one day during the > campaign, he found a computer printout on his doorstep in which someone had > placed a photo of his face with a noose around it. Representative Jackson had > been advocating to remove a Confederate statue from the local courthouse > property. Below the image, the perpetrator typed out: “LEAVE OUR STATUE & > PROPERTY ALONE & GET OUT OF THE RACE N——” on the sheet of paper. The brief goes on to describe how white legislators ignore the concerns of their Black constituents, making the creation of Black opportunity districts imperative to Black people’s political power in the state. The legislators say the situation has become so grievous, with Black people unable to get attention from their non-Black representatives for crumbling roads and sewage systems, that Black representatives from other districts effectively must represent those people. The LLBC has even created “an informal network” to connect Black residents to the nearest Black representative in order to get their concerns aired in the state capital.  Without Section 2, they warn, the legislature will strip away as much Black representation as possible. “LLBC members received a text message while preparing this brief informing them that they must hold dates in late October for a potential special session shortly after the hearing for this case,” the brief states. “There is no question that the goal of the majority in such a session is to redistrict the State’s congressional map… The Legislature is poised to act to roll back the progress made over the past several decades—forecasting how rapidly and aggressively Louisiana will act if this Court removes protections.” (After pushback, the Louisiana legislature is expected to wait until after the Supreme Court issues a decision to redraw its maps.) On the other side of the ledger, the group of non-Black voters and their lawyers are light on the facts. The non-Black voters who make up the allegedly injured party bringing the case don’t seem particularly harmed. A New York Times investigation found some of the plaintiffs weren’t even aware they were part of the case, and as their original complaint in district court states, many of the plaintiffs won’t even be moved into a new district under the map they are challenging. > The plaintiffs argue amendments protecting Black citizens must be interpreted > to ignore their plight. What little harm they can muster seems to be a weaker version of the harm the LLBC brief claims Black people already suffer: “The harm is felt by African American and non-African American voters alike, who no longer can influence their communities,” the complaint states. “Instead, both sets of voters are separated from their communities and thrust into districts with other voters hundreds of miles away, with whom they have little in common apart from race. The result is they do not have the same power to appeal to their congressional representatives—some of whom may have no knowledge of their region or culture.” Whereas this alleged harm is speculative, the real harm of representatives ignoring their constituents is actually one factor Congress has articulated for determining whether a minority opportunity district is appropriate under Section 2—and as the LLBC brief points out, it’s already happening to Black voters in Louisiana. One of the more startling aspects of the plaintiffs’ arguments against Section 2 comes at the end of the non-Black voters’ September brief to the Supreme Court, in which the lawyers seem to abandon the suggestion that racial polarization and animosity have receded to instead paint Black and white Louisianans as engaged in an eternal struggle over a limited number of congressional seats. Drawing from Roberts’ decision two years ago ending affirmative action in higher education, they allege that congressional representation is a “zero-sum” situation that pits racial groups against each other, in the same way that Black and white applicants vie for a limited number of spots in a freshman class. Ensuring representation for Black voters, they continue, “perpetuates discrimination.” This claim doesn’t actually make sense, nor is it followed by any sort of explanation—but it does allow them to make reference to a 2007 Roberts opinion in which he famously wrote: “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.” In other words, the lawyers admit that there is currently racial disharmony and then suggest that the only way to end it is to let white people take representation from Black people. The plaintiffs’ arguments in favor of ending Section 2’s protections for racial minorities in the creation of political maps starts out as an assertion that current events no longer warrant federal intervention but, in the course of a single brief, come around to the idea that white people can’t be fairly represented by Black representatives and that the two races are locked in a battle over a limited number of Congressional seats. In this contest, they argue, the Constitution mandates that the amendments enacted to protect Black citizens after the Civil War must now be interpreted to ignore their plight. Eviscerating the VRA’s protections for Black voters will not end the use of race in map drawing. Rather, it will green light rampant racial gerrymanders that disadvantage minority groups, including Black people in Louisiana and across the south. These will be race-conscious and racist maps specifically designed to dismantle black political power as well as Democratic seats. The justices can call it colorblind, but both sides know that’s not the case.

In greater Los Angeles, the Trump administration’s goal of deporting millions of people is being operationalized through often violent raids that target people who appear Latino while waiting for the bus or working in low-wage jobs. A shorter way to say this is racial profiling of low-income people. Today, the Republican-appointed justices on the Supreme Court blessed this approach. > “We should not have to live in a country where the Government can seize anyone > who looks Latino.” The ruling, on the so-called shadow docket, is yet another in a long string of cases since the spring in which the GOP appointees have allowed the Trump administration’s power grabs. From firing federal workers and agency heads to deporting people to dangerous countries without due process, the court’s majority has waived aside precedent, clear statutory language, and even constitutional protections in order to give this president increasing power. This time, the pesky thing standing in the way was the Fourth Amendment. “The Fourth Amendment protects every individual’s constitutional right to be ‘free from arbitrary interference by law officers,'” Justice Sonia Sotomayor wrote in her dissent, joined by Justices Elena Kagan and Ketanji Brown Jackson. “After today, that may no longer be true for those who happen to look a certain way, speak a certain way, and appear to work a certain type of legitimate job that pays very little.” Among the administration’s long list of recent wins, this case is particularly foreboding. It allows the government to target people because of their appearance and how they speak, as well as where they were found and what kind of work they do—factors that the district court found likely violate the Fourth Amendment. To move freely in this country, it may become increasingly important to look white. As Sotomayor, the court’s only Latino justice, wrote in dissent, the majority has created a “a second-class citizenship status” of people who may be subject to harassment. Today’s decision sets a course for the United States to become a country where masked officers pluck people from streets and businesses because of how they look. But to the court’s majority, the Latino citizen or visa holder who must now carry immigration documents or a passport every time they leave the house, and who might endure repeated harassment from federal agents anyway, is not the real victim. Instead, granting emergency relief to the Trump administration indicates the justices think the greatest harm is that the government might be forced to turn away from indiscriminate raids and put more effort into finding undocumented immigrants while this case challenging its tactics moves through the courts. As former prosecutor Ken White, a frequent media commenter, summed up the court’s holding: “Supreme Court Rules 6-3 That Fundamental Interests Of United States Of America Would Be Irreparably Harmed If It[s] Race-Based Harassment And Detention By Masked Thugs Were Even Temporarily Halted.” It has become typical that even in extraordinary opinions granting the administration new powers, the GOP appointees provide little to no explanation. On Monday, the court’s majority once again declined to explain its rationale in a written decision—possibly because it doesn’t even have a cohesive argument. But Justice Brett Kavanaugh nonetheless provided a concurrence, a kind of opinion that usually accompanies another justice’s fuller explanation. Perhaps Kavanaugh’s attempt to explain his reasoning in this case provides a partial explanation for why the majority so often remains silent: to show its reasoning would be to betray just how weak that reasoning is. Kavanaugh’s words are all we have to understand the court’s decision. And while the explanation he provides is poor, that in itself is illuminating. The only way Kavanaugh can justify the government’s actions is to put on blinders, ignore the fact-finding performed by the district court, presume the Trump administration is acting in good faith, and even ignore the actual policy that the Trump administration is applying. You don’t need to be a lawyer to see the flaws, or read the counterpoints in Sotomayor’s dissent, to see that some of what Kavanaugh writes simply doesn’t make sense. > Millions of people in Los Angeles now fear leaving their homes. Kavanaugh, for instance, claims that the plaintiffs in this case, which include citizens who have been detained by ICE during its raids as well four groups that represent immigrant and worker rights, don’t have standing to challenge the administration’s immigration enforcement in Los Angeles because individuals and association members are unlikely to be detained again. “What matters is the ‘reality of the threat of repeated injury,'” he writes, before ludicrously concluding that the plaintiffs “have no good basis to believe that law enforcement will unlawfully stop them in the future based on the prohibited factors—and certainly no good basis for believing that any stop of the plaintiffs is imminent.” That must be news to the millions of people in Los Angeles who now fear leaving their homes, not because they have done anything illegal but because simply being at work, waiting for the bus, or going to Home Depot is enough to get slammed against a wall or taken to a warehouse for questioning. If you are a Latino citizen who takes the bus to work in Los Angeles or frequents Home Depot, and ICE detains you once, what would insulate you from the same thing from happening again? Of course, the answer is nothing. Kavanaugh’s reasoning here seems to completely ignore how ICE is choosing its targets, even though that is literally the subject of the lawsuit. Kavanaugh’s rejection of the facts continues when he brushes aside the often violent reality of ICE raids, as documented by the plaintiffs, and instead dismisses an ICE stop as a minor inconvenience. “As for stops of those individuals who are legally in the country, the questioning in those circumstances is typically brief, and those individuals may promptly go free after making clear to the immigration officers that they are U. S. citizens or otherwise legally in the United States.” Sure, that’s possible. But Kavanaugh’s chipper language is belied by recent images of hundreds of people being shackled at a Hyundai plant site in Georgia, and bused 100 miles to a detention center, including reportedly people with valid work permits and citizens—even those with their immigration documents on them—where some were held for days. Evidence presented by the plaintiffs in this case demonstrated that citizens were pinned against walls and driven away for questioning. There is an indignity that goes along with always having to carry papers because of what you look like. But Kavanaugh doesn’t acknowledge any of that. To do that, he would have to acknowledge that the most-harmed party might not actually be Trump and his plans. “We should not have to live in a country where the Government can seize anyone who looks Latino, speaks Spanish, and appears to work a low wage job,” Sotomayor wrote. In LA now, that is the reality, at least as long as this case continues. And there’s no reason in this opinion to assume it won’t soon be the reality for the rest of us, too.