James.galbraith

In the public testimony that’s come so far, the Jan. 6 committee has carefully laid out the evidence showing that the assault on the Capitol was not a spontaneous event, but the result of a widespread conspiracy that went on over a period of months. That conspiracy put the Proud Boys in place to break through police lines and lead the way into the Capitol. It fabricated claims of election fraud that ensured thousand of the most gullible would be on hand, ready to be shaped into a weapon. It pressured local and state officials in an effort to create some some appearance of fire beyond waves of smoke. And it sent slates of false electors to Washington in order to bolster a faux-legal assault on democracy.

But until a 26-year-old assistant to the White House chief of staff testified on Tuesday, the central figure of that conspiracy largely remained hidden. Until Tuesday, the big missing hole in that conspiracy was Donald Trump.

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It’s not that Trump’s name hadn’t come up over and over. Trump was on the phone with state and local officials, trying to cajole, bully, or threaten them into giving him the votes he wanted. Trump was there in the meetings with attorney John Eastman, where they worked out the scheme to turn Jan. 6 from a ceremonial event into a last-ditch effort to derail the government. Trump was there with would-be Attorney General Jeffery Clark. There with Rudy Giuliani. Bent over a table with disgraced former general Michael Flynn and with no one-should-take-me-seriously Sidney Powell. Trump was there months, even years, earlier, undermining the foundations of democratic elections.

But for the most part, Donald Trump’s private words were passed along in snippets and generalities, his attitudes and actions rarely seen in detail when outside the public eye.

What Hutchinson’s testimony did was fill in an essential gap. Not the gap that described how Trump was desperate to join the conspirators at the Capitol so that he could personally lead his forces in assault—though that’s certainly an important thing to know. What Hutchinson’s testimony provided was a chance to see Trump. To see him raging through the halls of the White House, slinging a plate against the wall in a scene that is shockingly familiar to a million victims of domestic abuse. It was visceral testimony. Testimony that made it patently obvious just how hard others were still working not to admit to the kind of man they had helped.

Hutchinson’s testimony was shocking especially because it provided such a clear vision of the angry, petty, raging, and abusive man driving the nation to the brink. It was the first time we were told that the Trump who appeared on stage—to mock disabled people, brag about his love for violence, and spew vile about his every perceived slight—was even worse in private. It presented scenes of a man not only completely lacking in any kind of self-control, but unaware that self-control was something he should have.

This wasn’t Trump described in generalities and paraphrased statements. This was Trump with ketchup running down the walls and the broken plates still on the floor. It’s the man at the center of the conspiracy who was there all along, but who America has been so reluctant to see.

On Wednesday morning, Republicans are rushing forward with unnamed sources to claim that both  Security Chief Bobby Engel and other members of Trump’s Secret Service team are ready to testify that Trump didn’t grab the wheel of the presidential limo, or assault Engel. 

However, there’s absolutely no doubt that the House select committee would not have put Hutchinson’s testimony before the public if they did not already have corroboration of everything she said. Rep. Bernie Thompson would not risk the reputation of the investigation on unsupported testimony. None of the members of the committee—several of whom have ambitions that go beyond their current position—would risk their political futures on being tied to testimony that could be readily knocked down. 

Hutchinson testified she was told about the events in the limo by White House Chief of Operations Anthony Ornato, and it’s a good bet that the committee already has Ornato agreeing to that story.

The more interesting thing about the Republican response to Hutchinson’s testimony is just how specific that response has been. They’ve zeroed in on just a few seconds in that limo, because that’s the only part where Hutchinson wasn’t actually present. The only part where they can bring it back to something … vague. Something with the rage and ugliness stripped away. Maybe they can get Engel or some Secret Service agents to say Trump didn’t actually put his hands on the wheel. Maybe they can find someone who will use a term other than “lunged.” Maybe they’ll say that his efforts to get to the Capitol fell short of “assault.” Maybe.

But none of those Trump apologists seem to be going after the statements that Hutchinson made concerning her own direct experience. None of them are hurrying to have House Minority Leader Kevin McCarthy sit down to testify about the phone call he made to Hutchinson while Trump was on stage at the rally on the Ellipse. None of them are encouraging Pat Cipollone to step forward and explain why he and so many others did not want Trump going to the Capitol. None of them are telling Mark Meadows to get up there and explain how his former aide is wrong. None of them are challenging Hutchinson about the observations she personally made, day after day, both before and after the election.

In her testimony, Hutchinson came off as absolutely believable. The statements that she made about Trump were absolutely believable. What’s unbelievable is how many people, even at this late date, are still trying to cover up for a man whose actions and statements make him beneath contempt.

The Supreme Court issued an order Tuesday reinstating Louisiana’s congressional map, meaning the state will hold the 2022 elections under district lines a federal judge had struck down for violating the Voting Rights Act.

The decision from the high court resets the map, for at least the 2022 election, to one Republican legislators drew earlier this year.

District Court Judge Shelly Dick, a Barack Obama appointee, ruled earlier this month that the map likely violated the VRA. Under the map lines, one of the state’s six districts is majority Black, even though approximately one-third of the state’s population is Black. Republicans have a 5-1 advantage in Louisiana’s congressional delegation, with Democratic Rep. Troy Carter representing the one majority-Black seat. Dick had ordered the Louisiana legislature to redraw the map with a second heavily Black district.

The Supreme Court’s stay of that order likely resolves the last redistricting challenge outstanding ahead of the midterms, locking in 50 states' worth of congressional lines with a little over four months to go until the November election.

The Supreme Court’s liberal bloc — Justices Stephen Breyer, Elena Kagan and Sonia Sotomayor — noted their dissent from the stay.

The Supreme Court ruled that the lower court’s order would be put on ice pending a decision in Merrill v. Milligan, a case out of Alabama challenging that state’s maps as discriminatory for diluting the power of Black representation in that state as well.

Earlier this year, the Supreme Court also blocked a lower court order that threw out Alabama’s maps. The court will hear arguments in Merrill in October.

Legal experts and civil rights groups worry that the Supreme Court will use the Alabama case later this year to further weaken the Voting Rights Act. Over the last decade, the high court under Chief Justice John Roberts has significantly narrowed the power and use of the landmark law.

Ardoin v. Robinson could foreshadow a new age of widespread racial gerrymandering.

The Supreme Court handed down a brief order Tuesday evening that effectively reinstates racially gerrymandered congressional maps in the state of Louisiana, at least for the 2022 election.

Under these maps, Black voters will control just one of Louisiana’s six congressional seats, despite the fact that African Americans make up nearly a third of the state’s population. Thus, the Court’s decision in Ardoin v. Robinson means that Black people will have half as much congressional representation as they would enjoy under maps where Black voters have as much opportunity to elect their own preferred candidate as white people in Louisiana.

A federal trial court, applying longstanding Supreme Court precedents holding that the Voting Rights Act does not permit such racial gerrymanders, issued a preliminary injunction temporarily striking down the Louisiana maps and ordering the state legislature to draw new ones that include two Black-majority districts. Notably, a very conservative panel of the United States Court of Appeals for the Fifth Circuit denied the state’s request to stay the trial court’s decision — a sign that Louisiana’s maps were such a clear violation of the Voting Rights Act that even one of the most conservative appeals courts in the country could not find a good reason to disturb the trial court’s decision.

As the Fifth Circuit explained, current law typically forbids maps that dilute a particular racial group’s voting power, at least when that group is “sufficiently large and compact to form a majority” in additional congressional districts, when it “votes cohesively” and when “whites tend to vote as a bloc” to defeat the minority group’s preferred candidates.

Nevertheless, the Supreme Court voted 6-3 along party lines to stay the trial court’s injunction, effectively reinstating the gerrymandered maps. The Court’s order is only one page, and it provides no substantive explanation of why the Court’s Republican appointees voted to effectively strip Black Louisianans of half of their representation in the US House of Representatives.

The Supreme Court’s order in Ardoin does, however, contain a hint about what might be going on in the conservative justices’ heads: It references a decision from last winter involving a similar case out of Alabama.

Last February, the Court handed down an order in Merrill v. Milligan that temporarily reinstated maps in Alabama that a panel of three federal judges determined were illegally racially gerrymandered. Under those maps, Black voters have a real shot at determining who represents only one of Alabama’s seven districts — or 14 percent of those districts. Meanwhile, African Americans make up about 27 percent of the state’s population. So the Alabama maps, much like the Louisiana maps that the Court just temporarily reinstated in Ardoin, give Black people about half as much representation as they should have based on their share of the state’s total population.

The Court will hear oral arguments in the Merrill case in October, and then it will decide whether to make its temporary order in that case permanent — allowing Alabama to use its racially gerrymandered map until the next redistricting cycle begins in the 2030s.

In March, moreover, the Court voted to strike down Wisconsin’s state legislative maps, warning that those maps may have given too much influence to Black voters. That decision suggested that, before a state may voluntarily decide to add an additional Black-majority district, it must consider “whether a race-neutral alternative that did not add [one more] black district would deny black voters equal political opportunity.”

The Court’s new order in Ardoin states that the justices will hold onto the Louisiana case “pending this Court’s decision” in Merrill. The Court, in other words, appears to view Ardoin and Merrill as very similar cases, and it most likely plans to hand down a new rule governing racial gerrymandering cases that will resolve both cases.

Taken together, the Court’s orders in Merrill, Ardoin, and the Wisconsin case suggest that the justices are skeptical of current rules, which provide fairly robust protections against racial gerrymandering, and plan to replace those rules with a new regime that is likely less friendly to Black voters — and most likely to minority voters generally. None of these three orders was particularly well explained, but the pattern is that, in each case, the Court ruled against efforts to draw maps that expand Black political power.

It is unclear what this new regime will look like — again, none of the Court’s three recent racial gerrymandering decisions are particularly fleshed out. And it’s at least theoretically possible that the Court’s final decision in Merrill will uphold current law and strike down Alabama’s maps.

But the Court’s Republican majority is notoriously hostile to voting rights plaintiffs and to the Voting Rights Act in particular. So the future of American election law is likely to be much more hostile to Black (and other minority) interests than current law.

It’s exceedingly rare that the Supreme Court simply snatches away an established constitutional right, let alone one impacting personal bodily autonomy that had stood for nearly half a century and enjoyed the support of well over half the nation’s citizens. It is completely anomalous when it does so with such evident glee and malevolence.

Far from a measured, evenhanded assessment of the law, the Alito opinion overruling Roe v. Wade is a product of an unmistakable, pathological hatred, alternately sneering, sarcastic, and triumphant in its contemptuous tone of disregard (for women in particular). It is a product of untrammeled hate and repressed anger, weirdly prickly and dismissive of its obvious real-world ramifications. In short, it is something quite unlike anything we have ever seen spewed from a purported arbiter of our justice system.

But that is because it was not written for those whom it victimized, but rather as a punitive, self- congratulatory victory lap for its proponents. As pointed out by Adam Serwer writing for The Atlantic, it is an opinion with a tenor and content that owes itself more than anything to the familiar hyperpartisan spew of Fox News and other right-wing media outlets.

[T]he Supreme Court has become an institution whose primary role is to force a right-wing vision of American society on the rest of the country. The conservative majority’s main vehicle for this imposition is a presentist historical analysis that takes whatever stances define right-wing cultural and political identity at a given moment and asserts them as essential aspects of American law since the founding, and therefore obligatory. Conservatives have long attacked the left for supporting a “living constitutionalism,” which they say renders the law arbitrary and meaningless. But the current majority’s approach is itself a kind of undead constitutionalism—one in which the dictates of the Constitution retrospectively shift with whatever Fox News happens to be furious about. Legal outcomes preferred by today’s American right conveniently turn out to be what the Founding Fathers wanted all along.

The 6–3 majority has removed any appetite for caution or restraint, and the justices’ lifetime appointments mean they will never have to face an angry electorate that could deprive them of their power. It has also rendered their approach to the law lazy, clumsy, and malicious, and made the right-wing justices’ undead constitutionalism all the more apparent.

This week MSNBC’s Joe Scarborough made this observation about the tone of Alito’s opinion, and as reported by Travis Gettys for Raw Story, he is 100% correct:

“[M]ore than any Supreme Court decision I've ever read, it was -- even the language, there was a violence to the reasoning. We win, you lose. We're taking away these rights, and there's nothing you can do about it. Please, if somebody disagrees with me, please let me know where a court has overruled a right that's been in place for 50 years and done so in such an aggressive manner with absolutely no grace and absolutely no outreach to their legal or ideological opponents."

If that doesn’t signify something gone terribly awry with this so-called court, then nothing ever will. But here we are, in the space of a brief weekend, waking up to half the country’s legislatures furiously engaged in the process of transforming anyone who ever becomes pregnant into permanent second-class citizens, saddled with less autonomy and freedom than any of their counterparts for the rest of their lives. And most of us witnessing this travesty are still numb with disbelief.

But back to the court itself. As Peter Coy writing for The New York Times explains, that august body necessarily operates on a presumption of fairness. Unlike the executive or legislative branches, for whom ideology and partisanship may be expected, the descent of a supposed neutral branch of government into rank ideological triumphalism spells doom for its legitimacy in the eyes of the people it’s supposed to be serving. As Coy writes:

That’s why the politicization of the U.S. Supreme Court is so alarming. People on the losing end of Supreme Court decisions increasingly feel that justice is not being served. That’s a scary situation for the high court, and for American democracy in general.

“The Supreme Court has no power to enforce its decisions,” Daniel Epps, a law professor at Washington University in St. Louis, told me on Friday. “It doesn’t have an army. The only thing it has power to do is write PDFs and put them up on its website.”

All the Supreme Court really has to go on is the public’s acceptance of its rulings as legitimate. “Once you lose that, it’s not really clear what the stopping point is,” Epps said.

Let’s help Epps out here. Once the court’s pronouncements and the court itself are perceived as illegitimate by the majority of Americans, the stopping point is first defiance, and then outright disobedience. Where that may lead this country is unknown. But by selling itself out so blatantly and callously to the rabid right, this court has invited that response.

As the saying goes, “you break it, you bought it.”

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The January 6 hearings have been damning. Hutchinson’s testimony took them to a new level.

In one fell swoop, former Trump White House aide Cassidy Hutchinson transformed the story of the January 6, 2021, attack on the Capitol.

Hutchinson, who was a top deputy to Trump chief of staff Mark Meadows, revealed a series of stunning details about the events of the Capitol riot during her testimony to the January 6 committee. Hutchinson’s testimony suggests that the president knew in advance that violence was a possibility that day, and may very well have approved of it. He instructed his supporters to go to the Capitol, knowing that they were armed, and planned to join them personally once they arrived. After he was prevented from going personally, he told top aides that his vice president deserved the “hang Mike Pence” chants and that the rioters weren’t doing anything wrong.

Just a few days ago, Donald Trump attempted to downplay the day’s events, describing them as “a simple protest that got out of hand.” This was never credible, but Hutchinson’s testimony has simply demolished it. What once may have plausibly been described as an inchoate violent mob egged on by the president now looks much more like an attempted coup d’état.

How Hutchinson’s testimony changed what we knew about January 6

To understand how Hutchinson changed what we knew about the Capitol attack, it’s helpful to focus on four key moments in her testimony.

1) In a January 2, 2021, conversation, Trump ally Rudy Giuliani told Hutchinson that “we are going to the Capitol, it’s going to be great, the president is going to be there.” When she asked Meadows about what Giuliani said, her boss warned that “things might get real, real bad on January 6.” In the following days, the White House received repeated warnings from intelligence agencies that the rally might turn violent; neither Trump nor Meadows did anything.

This not only indicates that the White House had warning of a very serious risk of violence at the rally, but raises the question of whether the violence was actually planned — that is, what specifically “real, real bad” referred to.

2) On the morning of the attack, when Trump was informed that people in the crowd for his speech had weapons, Hutchinson heard the president say, “I don’t care that they have weapons. They’re not here to hurt me.”

This is the strongest evidence we’ve had that the president had direct and advance warning on the day of the attack that his crowd was prepared for violence, and that he then proceeded to instruct these people to march on the Capitol, indifferent at best that those weapons might be used there. “They’re not here to hurt me” could be read a couple of ways: It could simply be downplaying any threat to Trump’s person, but it could also suggest he believed that they were there to hurt someone else.

3) After his speech, Trump had planned to personally travel to the Capitol with the rioters. Hutchinson was informed by another White House aide that Secret Service agents attempted to take the car back to the White House instead, citing ongoing violence. In response, Trump reportedly tried to physically seize control of the wheel from a Secret Service agent in a failed attempt to drive to the Capitol.

This is the one key detail that Hutchinson herself did not witness, so we can’t be as confident that it happened as described. Nevertheless, the story — together with other evidence, including National Security Council chat logs released by the committee — provides new and strong reasons to believe that the president was set on leading the Capitol mob, even after it turned violent.

4) When the president returned to the White House, he met with Meadows and White House counsel Pat Cipollone and discussed the rioters chanting “hang Mike Pence” in the halls of the Capitol. Hutchinson heard Meadows say, “You heard him, Pat. He thinks Mike deserves it. He doesn’t think they’re doing anything wrong.”

Hutchinson is not the first committee source to describe Trump as approving the idea of Pence’s execution. But hearing more confirmation, together with testimony that he believed that the crowd assaulting police officers and ransacking the Capitol was doing nothing wrong, paints an even clearer picture of a president who not only condoned the violence, but actively approved of it.

Put together, and assuming the details are true, we now have good reason to believe that the violence of the day was not accidental but intentional: that Trump wanted a violent mob to attack the Capitol on his behalf, to use force to disrupt Congress’s certification of the election results and thus give him a chance at illegally holding onto the presidency.

It appears, in short, to be a kind of attempted regime change: a coup that we would have no problem describing as such in any other country but our own.

Legal commentators are already suggesting that the evidence presented by Hutchinson could fuel criminal charges against Trump, such as seditious conspiracy — with one calling it “the smoking gun” necessary to go after the former president. Whether Attorney General Merrick Garland chooses to act on this evidence is an open question; so far, he has appeared very reticent to pursue former Trump officials on issues relating to January 6.

I don’t have much faith that the gravity of this charge will change the way Republicans think and act about Donald Trump. Perhaps this time will be different, and it will prove too much for rank-and-file Republicans — and even for craven power-seekers like Senate Minority Leader Mitch McConnell and House Minority Leader Kevin McCarthy. When it comes to Trump’s offenses, “this time will be different” has a poor track record.

Yet those of us in the press should not judge the import of Hutchinson’s testimony purely by its likely legal and political consequences. One of the most important roles of the press is to tell the truth: to inform the public about what is happening in their country, describing it accurately and honestly to the best of our ability.

And to that end, it is important to be as clear as possible about what Cassidy Hutchinson has done. She told us, in no uncertain terms, that the sitting president at the very least condoned a violent attack that he knew ahead of time was likely — behavior that is, itself, an assault on the foundations of American government. What we do with that, as a democracy, is up to us.

House Democrats, in particular, are pushing the attorney general to act following explosive Jan. 6 testimony.

Throughout the Jan. 6 committee hearings, former President Donald Trump has maintained his spiteful brand of slamming anyone who dares go against him. He stayed the course following Tuesday’s hearing in which Mark Meadows’ former aide Cassidy Hutchinson testified about Trump’s involvement in the violent insurrection that inspired the committee’s investigation in the first place. Among the standout details of Trump's behavior on Jan. 6? The president had a full-blown tantrum while in one of the presidential vehicles, screaming expletives at his staff over their refusal to get him to the Capitol. At one point, Trump grabbed the steering wheel of the vehicle and even tried to assault a Secret Service member.

He wasn’t done taking out his rage, though. Trump threw a cheeseburger at the wall of the West Wing, its ketchup grotesquely dripping down until some lowly staffer cleaned up his mess. Thanks to Truth Social, Trump is free to throw the same type of fits on social media. There is no clean-up crew, though there are plenty of positive comments from members who are so far gone in MAGA-Land that they support Trump’s support of their own calls to hang Make Pence. Truly, it’s a love-fest on that platform, as you can see from the more than a dozen “truths,” or posts, Trump sent in the wake of the hearing’s conclusion.

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Trump claimed not to know Hutchinson, though her office when she worked under Meadows was a 10-second walk from the Oval Office. He slammed her firing his hand-picked attorney and replacing him with an ally of Jeff Sessions. He even claimed that Hutchinson was a bullshit artist, a phony, and was unstable—which, he posits, we know because of her handwriting.

Hitchinson’s handwriting was visible in a note displayed as evidence during the hearing. She had taken down statements from Meadows, on his own stationery the night of Jan. 6, for the former Trump chief of staff’s call for a statement to be put out condemning the illegal actions of the insurrectionists storming the Capitol. That statement was ultimately never given. But Trump’s criticism sure is rich given his signature looks like an EKG, he’s sleazier than a used-car salesman, and his lying is so legendary that entire fact-checking teams have formed just to monitor his outbursts.

It also hurts Trump’s non-existent credibility in claiming he didn’t melt down by being unable to lead his own attempted coup. There is nothing more believable to me than Trump being driven around like a screaming toddler in an attempt to soothe his horrid temperament, nor is it at all surprising that the White House continued to work around the president instead of alongside him as he issued statement after tweet after statement condemning Vice President Mike Pence, whom he secretly said “deserved” to be hanged after catching wind his own followers were chanting, “Hang Mike Pence!”

Even the cheeseburger detail adds up, given Trump’s own penchant for overdone meat with ketchup on it. In taking to Truth Social to speak his piece, Trump is only further digging his own grave.

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Cassidy Hutchinson, the one-time aide to former President Donald Trump’s Chief of Staff Mark Meadows, will testify before the Jan. 6 committee on Tuesday. 

The 1 PM ET hearing was announced abruptly Monday night, and her appearance was kept tightly under wraps due to concerns in large part over her threats to her safety. Hutchinson’s cooperation and testimony have been integral to the probe; last week, investigators revealed a portion of her testimony where she said that a slew of Republican lawmakers sought presidential pardons after the Capitol assault. 

Punchbowl News was the first to break the news about her appearance today. 

RELATED STORY: Do not be distracted: Some key details that have emerged from the Jan. 6 probe

The rush to have Hutchinson testify publicly and in person suggests that the committee is anxious to have her appear, though precisely why is unclear. A spokesperson for the probe did not respond to a request for comment. 

The former White House aide has met at least three times with investigators. In her recorded video depositions, Hutchinson disclosed important information about central elements underpinning the investigation into the insurrection at the Capitol. 

She told the committee, for example, that it was Rep. Scott Perry, a Pennsylvania Republican, who introduced and amplified the profile of Jeffrey Clark, a middling environmental attorney at the Department of Justice, to Trump.

Clark, extensive witness testimony and records have revealed, was at the crux of a bid to have the Department of Justice declare there was widespread fraud in the 2020 election where there was none. Witnesses from the Department of Justice, like the former acting Attorney General Jeffrey Rosen and Deputy Richard Donoghue, corroborated this during an explosive hearing last week, laying out in fine detail how Clark threatened to take over the department—with Trump’s blessing—as the 45th president grasped for power following his defeat to now-President Joe Biden in the 2020 election.

Hutchinson said too that it was Reps. Perry, Matt Gaetz of Florida, Andy Biggs of Arizona, Mo Brooks of Alabama, Jim Jordan of Ohio, Marjorie Taylor Greene of Georgia, and Louie Gohmert of Texas who sought pardons for themselves or others in the wake of the attack.

All of the lawmakers have denied any wrongdoing. Brooks has chalked up his request for a presidential pardon to a preemptive maneuver against “Socialist Democrats” who would take power once Biden was in office. 

Her proximity to Meadows and Trump has offered a unique window into the White House.

According to portions of her closed-door deposition that were tucked into court records filed between the committee and Meadows as they duked it out over Meadows’ cooperation, Hutchinson disclosed that Meadows was warned threats of violence were coming to Washington, D.C., on Jan. 6. She was unclear, she told investigators, whether Meadows took the warning seriously, but as Daily Kos previously reported, she recalled Secret Service Agent Anthony Ornato approaching Meadows with intelligence reports that worried the agency. 

What Meadows did with that information was unclear, Hutchinson said, but she did recall Meadows inviting Ornato into his office privately after the warning. 

Hutchinson also testified privately about how she heard Trump openly offer support for rioters on Jan. 6 who bellowed chants of “Hang Mike Pence” as they surrounded the complex and erected gallows on the Capitol lawn.

This detail was first reported by The New York Times in May. According to Hutchinson, she reportedly heard Meadows remark to White House colleagues that Trump was irate over Pence being whisked away by security as the mob attacked. Trump then allegedly said something to the effect of: “Maybe Pence should be hung.”

Hutchinson appears Tuesday after a recent change in legal representation. Hutchinson’s current lawyer is Jody Hunt. Hunt, of the D.C. law firm Alston Bird, is a longtime ally to former Attorney General Jeff Sessions, even once serving as his chief of staff. Hutchinson parted ways with her former attorney, Stefan Passantino in early June, according to Politico. Passantino once served as the White House deputy counsel under Trump.

RELATED STORY: Jan. 6 committee: During Capitol attack, Trump reportedly approved of ‘Hang Mike Pence’ chants

Neil Gorsuch was the first of the three extremist Supreme Court justices nominated by Donald Trump on the recommendation of the conservative Federalist Society. He is filling the seat that by all rights should have gone to President Barack Obama’s nominee Merrick Garland.

And Gorsuch is poised to play a key role in the upcoming week when the Supreme Court is expected to issue its ruling in the case West Virginia v. Environmental Protection Agency (EPA), a case that could severely limit the federal government’s authority to reduce carbon dioxide emissions from power plants.

The pain, suffering, and deaths resulting from SCOTUS’ rulings on gun regulations and abortion rights are bad enough. But in the long run, the conservative court’s ruling in West Virginia v. EPA  and similar anti-environmental regulation cases now working their way through lower courts could have even more devastating consequences—putting at stake the future of our planet.

In a June 19 story, The New York Times’ top environmental reporter Coral Davenport noted:

“Within days, the conservative majority on the Supreme Court is expected to hand down a decision that could severely limit the federal government’s authority to reduce carbon dioxide from power plants—pollution that is dangerously heating the planet.

But it’s only a start.

The case, West Virginia v. Environmental Protection Agency, is the product of a coordinated, multiyear strategy by Republican attorneys general, conservative legal activists and their funders, several with ties to the oil and coal industries, to use the judicial system to rewrite environmental law, weakening the executive branch’s ability to tackle global warming. Coming up through the federal courts are more climate cases, some featuring novel legal arguments, each carefully selected for its potential to block the government’s ability to regulate industries and businesses that produce greenhouse gases.”

Everyone here has undoubtedly heard of Jan. 6 coup-plotter Ginni Thomas, the wife of Justice Clarence Thomas, but how many know about Anne M. Gorsuch, the mother of Justice Neil Gorsuch?

Anne Gorsuch, a radical anti-environmental activist, was appointed by Ronald Reagan in 1981 to be the first female administrator of the Environmental Protection Agency. She worked hand-in-glove with Reagan’s controversial Secretary of the Interior James Watt to undermine federal environmental regulations.

Here is how The Washington Post described her controversial 22-month tenure as EPA administrator in her 2004 obituary. In 1983, after she and her first husband, David Gorsuch, divorced, she married Robert F. Burford, a rancher and head of the Bureau of Land Management.

Her 22-month tenure was one of the most controversial of the early Reagan administration. A firm believer that the federal government, and specifically the EPA, was too big, too wasteful and too restrictive of business, Ms. Burford cut her agency's budget by 22 percent. She boasted that she reduced the thickness of the book of clean water regulations from six inches to a half-inch.

Republicans and Democrats alike accused Ms. Burford of dismantling her agency rather than directing it to aggressively protect the environment. They pointed to budgets cuts for research and enforcement, to steep declines in the number of cases filed against polluters, to efforts to relax portions of the Clean Air Act, to an acceleration of federal approvals for the spraying of restricted pesticides and more.

Nearly all of her subordinates came from the ranks of the industries that the EPA was charged with regulating.

Her undoing came as the result of a scandal over the mismanagement of the new $1.6 billion Superfund toxic waste clean-up program by effectively freezing its implementation. She was cited for contempt of Congress after refusing to turn over Superfund records, arguing that they were protected by executive privilege.

This was the last straw even for Reagan, who forced her to resign and replaced Gorsuch with Bill Ruckelshaus, a moderate Republican who was appointed by President Richard Nixon in 1970 as the first EPA administrator. Ruckelshaus later resigned as deputy attorney general in the 1973 “Saturday Night Massacre” rather than obey Nixon’s orders to fire special Watergate prosecutor Archibald Cox.

Like mother, like son?

When Trump nominated Gorsuch to the Supreme Court in February 2017, the Sierra Club wrote that his “opinions regarding environmental laws may be a matter of maternal trauma as much as conservative ideology.”

“A fuller review reveals a major and traumatic experience that almost certainly would have impacted the outlook of her then-16-year-old son, who had moved from Denver to D.C. with his mother when she was appointed and before she caused the first major scandal of the Reagan administration.” [...]

It seems likely that this harrowing family experience left a lasting mark on Neil Gorsuch. To quote a New York Times editorial, “He is even more conservative than Justice Scalia in at least one area—calling for an end to the deference courts traditionally show to administrative agencies, like the Environmental Protection Agency, that are charged with implementing complex and important federal laws.”

Columbia professor Steven Cohen, who formerly served as executive director of the university’s Earth Institute, was forced out of his job as an EPA consultant in 1981 by Anne Gorsuch. In a June 21 article on Columbia’s State of the Planet website Cohen sounded the alarm about the Supreme Court’s “radical environmental deregulation” agenda:

The irony today is that Gorsuch’s son, Supreme Court Justice Neil Gorsuch, may finally have a chance to complete his mother’s anti-regulatory and environmentally destructive work.

There has been a long and convoluted path that has led to West Virginia v. EPA coming before the Supreme Court. For background, here is a summary from Harvard Law Today.

During the Obama administration, the EPA established the Clean Power Plan, which set the first national limits on carbon pollution from U.S. power plants. A number of industry groups and Republican state attorneys general filed a lawsuit arguing that the EPA had exceeded its congressional authority in issuing the plan.

The case ended up being dismissed after Trump’s election. The Trump administration repealed the Obama-era Clean Power Plan and issued its own much weaker Affordable Clean Energy rule which relaxed restrictions on greenhouse gas emissions from power plants. That plan was challenged by Democratic states and cities as well as environmental advocacy groups.

In January 2021, on the last day of Trump’s administration, the federal appeals court in Washington, D.C., in a  2-1 decision, struck down the Affordable Clean Energy rule. That led the attorneys general of West Virginia and other Republican-governed states, along with several coal companies, to ask the Supreme Court to review the D.C. appellate court’s decision. The plaintiffs argued that the EPA lacks the authority to regulate power plant emissions and this authority instead should be granted to Congress.

What made the Supreme Court’s decision even odder was that the Biden administration has yet to even establish a new rule on greenhouse gas emissions from power plants. Thus the Supreme Court is considering setting a precedent for limiting future EPA rule-making on power plant emissions.

During oral arguments in February, several of the conservative SCOTUS justices questioned the scope of the EPA’s ability to regulate carbon emissions from power plants, which could sharply curtail the Biden administration’s efforts to deal with climate change.

Beyond environmental policy, the case also reflects the skepticism held by the court’s conservative majority about the power of federal agencies to deal with major issues impacting the nation. That viewpoint was reflected during the coronavirus pandemic when the court ruled that the Centers for Disease Control and Prevention lacked the authority to impose a moratorium on evictions or that the Occupational Safety and Health Administration could not tell large companies to have their workers be vaccinated or undergo frequent testing for COVID-19.

In her New York Times piece, Davenport wrote that Republican activists say that their ultimate goal “is to overturn the legal doctrine by which Congress has delegated authority to federal agencies to regulate the environment, health care, workplace safety, telecommunications, the financial sector and more.” She wrote:

“Known as “Chevron deference,” after a 1984 Supreme Court ruling (Chevron v. Natural Resources Defense Council), that doctrine holds that courts must defer to reasonable interpretations of ambiguous statutes by federal agencies on the theory that agencies have more expertise than judges and are more accountable to voters. “Judges are not experts in the field and are not part of either political branch of the government,” Associate Justice John Paul Stevens wrote in his opinion for a unanimous court.

But many conservatives say the decision violates the separation of powers by allowing executive branch officials rather than judges to say what the law is. In one of his most famous opinions as an appeals court judge, Associate Justice Gorsuch wrote that Chevron allowed “executive bureaucracies to swallow huge amounts of core judicial and legislative power.”

It’s all part and parcel of what Trump’s former chief political strategist Steve Bannon has long advocated: the “deconstruction of the administrative state.”

The aim of Republican state attorneys general supporting lawsuits such as West Virginia v. EPA is to limit the ability of federal agencies to set rules and regulations that affect the U.S. economy—for example, environmental policies discouraging the use of coal. Instead, they argue that it is the role of Congress to set such rules and regulations because lawmakers are more accountable to voters than federal bureaucrats. That, of course, is a formula for inaction or even worse consequences if Republicans regain full control of Congress and the White House.

And when it comes to climate change, Congress has done little to address the issue—just look at the failure to enact Biden’s Build Back Better agenda which included measures to promote clean energy over fossil fuels.

As is the case with gun regulations and abortion rights, the Supreme Court is likely to make a  controversial ruling opposed by an overwhelming majority of Americans. Poling conducted by Data for Progress and Evergreen Action in June found that almost three-quarters of all likely voters (74%) are concerned about air and water pollution in their communities. Nearly two-thirds of likely voters are concerned about the Supreme Court removing environmental protections established by the Clean Air Act.

Davenport summed up what could be the disastrous impact of rulings by the Supreme Court’s conservative majority in the West Virginia case as well as other environmental regulation cases in the legal pipeline.

It would mean the federal government could not significantly restrict tailpipe emissions, force electric utilities to replace fossil fuel-fired power plants with wind and solar power, and consider the economic costs of climate change when evaluating whether to approve a new project like an oil pipeline or environmental regulation.

She wrote:

Those limitations on climate action in the United States, which has pumped more planet-warming gases into the atmosphere than any other nation, would quite likely doom the world’s goal of cutting enough emissions to keep the planet from heating up more than an average of 1.5 degrees Celsius compared with the preindustrial age. That is the threshold beyond which scientists say the likelihood of catastrophic hurricanes, drought, heat waves and wildfires significantly increases. The Earth has already warmed an average of 1.1 degrees Celsius.

“If the Supreme Court uses this as an opportunity to really squash E.P.A.’s ability to regulate on climate change, it will seriously impede U.S. progress toward solving the problem,” said Michael Oppenheimer, a professor of geosciences and international affairs at Princeton University.

But that may be of no concern to the likes of Neil Gorsuch. After all, mommy knows best.  

nickwinlund77 shares a report from Phys.Org: A new study led by University of Arizona researchers may have solved two mysteries that have long puzzled paleo-climate experts: Where did the ice sheets that rang in the last ice age more than 100,000 years ago come from, and how could they grow so quickly? Understanding what drives Earth's glacial -- interglacial cycles -- the periodic advance and retreat of ice sheets in the Northern Hemisphere -- is no easy feat, and researchers have devoted substantial effort to explaining the expansion and shrinking of large ice masses over thousands of years. The new study, published in the journal Nature Geoscience, proposes an explanation for the rapid expansion of the ice sheets that covered much of the Northern Hemisphere during the most recent ice age, and the findings could also apply to other glacial periods throughout Earth's history. About 100,000 years ago, when mammoths roamed the Earth, the Northern Hemisphere climate plummeted into a deep freeze that allowed massive ice sheets to form. Over a period of about 10,000 years, local mountain glaciers grew and formed large ice sheets covering much of today's Canada, Siberia and northern Europe. While it has been widely accepted that periodic "wobbling" in the Earth's orbit around the sun triggered cooling in the Northern Hemisphere summer that caused the onset of widespread glaciation, scientists have struggled to explain the extensive ice sheets covering much of Scandinavia and northern Europe, where temperatures are much more mild. [...] "Using both climate model simulations and marine sediment analysis, we show that ice forming in northern Canada can obstruct ocean gateways and divert water transport from the Arctic into the North Atlantic," [said Lofverstrom, an assistant professor of geosciences and head of the UArizona Earth System Dynamics Lab], "and that in turn leads to a weakened ocean circulation and cold conditions off the coast of Scandinavia, which is sufficient to start growing ice in that region." "These findings are supported by marine sediment records from the North Atlantic, which show evidence of glaciers in northern Canada several thousand years before the European side," said Diane Thompson, assistant professor in the UArizona Department of Geosciences. "The sediment records also show compelling evidence of a weakened deep ocean circulation before the glaciers form in Scandinavia, similar to our modeling results." Together, the experiments suggest that the formation of marine ice in northern Canada may be a necessary precursor to glaciation in Scandinavia, the authors write. [...] "It is possible that the mechanisms we identified here apply to every glacial period, not just the most recent one," [Lofverstrom] said. "It may even help explain more short-lived cold periods such as the Younger Dryas cold reversal (12,900 to 11,700 years ago) that punctuated the general warming at the end of the last ice age."

Read more of this story at Slashdot.

Given the nature of our third branch of government, the United States Supreme Court, the ruling is no surprise. Before the court goes after the gay marriage, interracial marriage and a woman’s right to vote, on Monday morning it ruled in favor of the high school football coach who took a knee to pray. As it should. One of the details that makes America America is the right to take a knee, and peacefully express themselves for whatever the reason. That includes taking a knee to protest the treatment of Black Americans by law enforcement or taking a knee to pray to God after a football game. If …

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“This is not a time for speeches and hoping people will vote in November.”

This past weekend, more than 30 Democratic senators had a message for President Joe Biden: They want him to do more to protect abortion rights, and they want him to do it now.

“There is no time to waste,” they said in the letter, which was led by Sen. Patty Murray (D-WA) and sent one day after the Supreme Court announced its decision to officially roll back Roe v. Wade. “You have the power to fight back and lead a national response to this devastating decision.”

This letter is the latest indication of growing pressure on the White House to take additional executive actions in response to the fall of Roe. While Biden is not able to reinstate the protections offered by Roe without Congress, lawmakers and activists have clamored for the president to take other steps, such as finding ways for the federal government to defend abortion access in every state.

Many of these proposals would likely be challenged in court, but proponents emphasize that they’d like to see the administration give them a try before forgoing them completely. For months, some abortion rights advocates have felt that the White House hasn’t been doing enough to address the urgency of the situation, whether that’s weighing more ambitious policies or simply speaking out more forcefully on the subject. Many were disappointed, for instance, to find that Biden hadn’t used the word “abortion” in any presidential speech until recently.

The White House has taken some initial steps — and signaled that further action is on the way — while stopping short of laying out a comprehensive strategy. In a statement on Friday, Biden said he would combat any efforts to prevent people from traveling across state lines for abortions and indicated that the Department of Health and Human Services would work to preserve access to medication abortions to the “fullest extent possible.”

Activists, though, feel there are more avenues the White House should consider. “This is not a time for speeches and hoping people will vote in November,” said Renee Bracey Sherman, the executive director of We Testify, an abortion rights advocacy group. “It’s a time to get creative … to try something and see what happens.”

What advocates and many Democrats want from the Biden administration

The main thing that advocates and many Democrats want from Biden is to take more aggressive actions, even if they’re expected to face legal challenges.

These actions — coupled with inclusive rhetoric about abortions — could send a powerful message about the Biden administration’s solidarity with those affected by the bans. As of early this week, nine states have already implemented trigger laws that include either bans on abortion or severe limitations in access.

Additional ideas that have been suggested include a proposal championed by Sen. Elizabeth Warren (D-MA) and Rep. Alexandria Ocasio-Cortez (D-NY) that would establish abortion clinics on federal lands in states where there are existing bans. Because federal lands aren’t subject to states’ civil laws and there’s room to interpret criminal laws, clinics could theoretically establish themselves on places like military bases without having to deal with a state’s bans.

“Even though the land is inside the border of a state, it wouldn’t be governed by the laws of a state,” Khiara Bridges, the faculty director of UC Berkeley’s Center on Reproductive Rights and Justice, previously told Vox.

Experts note that there is a precedent for federal lands to operate under a different set of policies than state-owned ones. Drexel University law professor David Cohen told Vox that there are past cases when a state’s right-to-work laws have not applied to how companies approach unionization if they are located on federal lands.

Still, it’s an idea that could face legal pushback depending on how federal funds are used. If the clinics are paying the federal government to rent the lands, such an arrangement could circumvent the issue of the Hyde Amendment, which bars the use of federal spending on most abortions. If federal funds are utilized to set these clinics up, their legal standing could be dicier.

The Congressional Black Caucus has called on Biden to declare a national public health emergency, much as he did during the pandemic. When it came to Covid-19, establishing a public health emergency helped prioritize federal dollars for resources like vaccines — though, again, that might be tougher with abortions due to the Hyde Amendment. The caucus as well as many activists believe such an action could help Biden demonstrate how serious the existing crisis is.

Other ideas that have been floated include using federal money to provide vouchers to people traveling across state lines for abortions and enforcing the use of federal Medicaid dollars to provide coverage in the narrow instances in which they can be used. These schemes also face implementation questions, with the first possibly running afoul of the Hyde Amendment and the second facing uncertainty about enforcement.

Where the administration could go from here

Despite condemning the Supreme Court’s decision, the administration has repeatedly cautioned that there’s only so much it can legally accomplish.

“We’re going to continue to see what else we can do,” White House press secretary Karine Jean-Pierre told reporters on Saturday. “I guess what I’m trying to say about the executive actions is that nothing could fill the hole that this decision has made.”

That may be true, but many Democrats — lawmakers and voters alike — want to see Biden at least show that he’s fighting for people on the issue.

So far, a key area of focus is medication abortion: On Friday, Biden said he’d be directing the Department of Health and Human Services, which oversees the FDA, to ensure that people could maintain access to medication abortion, though he offered few specifics on what this would entail.

The FDA has already issued regulations that make it easier to obtain a medication abortion, policies that could counter state bans. In April 2021, it approved changes that enabled people to receive a prescription via telemedicine and get medication through the mail, a regulation the agency made permanent in December.

Nineteen states, however, have passed laws that directly contradict the FDA’s regulations, requiring people to consume abortion pills with a clinician present. Legal experts argue that the Department of Justice could challenge these laws since federal regulations supersede state policies. Attorney General Merrick Garland has said that states can’t ban people’s access to medication abortions, though he has not yet detailed how the DOJ will enforce this.

According to Politico Playbook, the administration is still reviewing other possibilities amid constraints posed by congressional inaction. Due to the filibuster, lawmakers have limited recourse to pass legislation in the Senate, where many bills can’t advance without 60 votes. And given their one-vote majority, Democrats’ ability to approve any abortion rights legislation this term appears highly unlikely.

With that avenue closed, many advocates and lawmakers have been clear that they’ll continue to lobby Biden to take a stronger and more decisive stance. “We’re going to be loud. We’re going to be relentless. Because, Mr. President, we need a plan to protect reproductive rights in America — and we need it now,” Murray said at a June press conference.

Following the launch of Apple's new 13-inch MacBook Pro with the M2 chip, it has been discovered that the $1,299 base model with 256GB of storage has significantly slower SSD read/write speeds compared to the equivalent previous-generation model. From a report: YouTube channels such as Max Tech and Created Tech tested the 256GB model with Blackmagic's Disk Speed Test app and found that the SSD's read and write speeds are both around 1,450 MB/s, which is around 50% slower reading and around 30% slower writing compared to the 13-inch MacBook Pro with the M1 chip and 256GB of storage. Disk Speed Test app numbers shared by Vadim Yuryev of Max Tech: 13-inch MacBook Pro (M1/256GB) Read Speed: 2,900 13-inch MacBook Pro (M2/256GB) Read Speed: 1,446 13-inch MacBook Pro (M1/256GB) Write Speed: 2,215 13-inch MacBook Pro (M2/256GB) Write Speed: 1,463 Yuryev disassembled the new 13-inch MacBook Pro and discovered that the 256GB model is equipped with only a single NAND flash storage chip, whereas the previous model has two NAND chips that are likely 128GB each. This difference likely explains why the new model has a slower SSD, as multiple NAND chips allows for faster speeds in parallel.

Read more of this story at Slashdot.

A mother who heroically saved her children during the tragic Uvalde school shooting in May is experiencing harassment at the hands of local cops, Fox 29 reported. According to the local news outlet, the mother of two children who attended the Robb Elementary school where two teachers and 19 children were killed has faced backlash from law enforcement, even at home. “The other night we were exercising and we had a cop parked at the corner like, flickering us with his headlights," Angeli Rose Gomez told reporters.

She added that because of this and similar incidents, she has had to separate from her boys, "just so my sons don't feel like they have to watch cops passing by, stopping, parking."

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Gomez made headlines as the mom who quickly rushed to her sons’ school when she heard the news that there was an active shooter. Upon arriving, she said she not only heard children screaming and gunshots, but saw law enforcement officials standing outside. Seeing this, she said she tried to get other parents to have law enforcement officials do something only to be threatened with being handcuffed, which she later was.

"As soon as they [police] take me off the cuff I see his arm like, give me a little gateway, because I'm real little so a little gateway where I can just run,” Gomez told Fox 29.

Gomez then jumped a fence and began banging on a window in a door, where she saw her oldest son's teacher. Gomez told her, "like you already have a gateway out, so might as well just come out like if I'm going to run out with him, y'all just come on too."

After getting her eldest out with some of his classmates, Gomez searched the school for her younger son.

"At this moment I'm jiggling the handle and I'm going pretty nuts like trying to get the door open and it's not gonna open, so I stand back and the cops are already on me and they're like ‘ma'am calm down!’"

According to Fox 29, Gomez then told them to evacuate the school or she won't leave her spot. She said "immediately they start evacuating that classroom and my son runs out to me and he's like, ‘mom, mom!’"

"I just remember when my son saw my other son, one hugged the other one and said 'I'm so glad you're okay', and the other one said, 'I was so worried you weren’t.'" She continued, ”so it was a big thing because in that moment I was like, they're really happy to see each other, thank god to each other that they're alive."

This isn’t the first time the Texas mother has expressed being afraid of “someone in law enforcement” trying to silence her from speaking out. In an interview with CBS News earlier this month, Gomez noted that the harassment started after she was warned by police to stop telling her story.

But despite how law enforcement officials are allegedly treating Gomez, she stands strong.

According to Fox 29, alongside demanding Uvalde CISD Police Chief Pete Arredondo be fired without pay, Gomez is planning on filing a lawsuit. Arrendondo has been criticized nationwide for failing to take control of police response and delaying officers from entering the classroom when the gunman entered the building. He defended his actions to The Texas Tribune, to which he said allegations against him were false and he did his best to save as many children and teachers as possible.

“The fact that he wasn't fired immediately based upon whatever it is, hours of video, from testimonies such as Angeli’s, is an indication that there is some sort of what, corruption or wrong-doing,” said Gomez’s criminal defense attorney, Mark Di Carlo. Di Carlo is representing about 15 parents in the Uvalde community. 

Kennedy v. Bremerton School District is a big victory for the religious right, but only because Gorsuch misrepresents the facts of the case.

The Supreme Court handed down a landmark decision in Kennedy v. Bremerton School District on Monday, overruling a 1971 case laying out how the government must keep its distance from religion.

But Justice Neil Gorsuch’s opinion for himself and his fellow Republican appointees relies on a bizarre misrepresentation of the case’s facts. He repeatedly claims that Joseph Kennedy, a former public school football coach at Bremerton High School in Washington state who ostentatiously prayed at the 50-yard line following football games — often joined by his players, members of the opposing team, and members of the general public — “offered his prayers quietly while his students were otherwise occupied.”

(Justice Brett Kavanaugh did not join a brief section of Gorsuch’s opinion concerning the Constitution’s free speech protections, but Gorsuch otherwise spoke for the Court’s entire Republican majority.)

Because Gorsuch misrepresents the facts of this case, it’s hard to assess many of its implications.

The Court’s decision to explicitly overrule Lemon v. Kurtzman, the 1971 decision that previously governed cases involving the Constitution’s language prohibiting “an establishment of religion,” has obvious implications for future lawsuits: Lower court judges will no longer apply Lemon’s framework to establishment clause cases.

But it’s not clear how those lower court judges should now navigate questions about the separation of church and state. Although the Court overrules Lemon, it does not announce a fleshed-out test that will replace Lemon. Instead, Kennedy announces a vague new rule that “the Establishment Clause must be interpreted by ‘reference to historical practices and understandings.’”

Moreover, because Gorsuch’s opinion relies so heavily on false facts, the Court does not actually decide what the Constitution has to say about a coach who ostentatiously prays in the presence of students and the public. Instead, it decides a fabricated case about a coach who merely engaged in “private” and “quiet” prayer.

If the facts of Kennedy actually resembled the made-up facts laid out in Gorsuch’s opinion, then Kennedy would have reached the correct result. Even under Lemon, a public school employee is typically permitted to quietly pray while they are not actively engaged with students.

Gorsuch’s opinion, however, describes a very different case than the one that was actually before the Court.

Coach Kennedy engaged in very public prayer

In the real case that was actually before the Supreme Court, Coach Kennedy incorporated “motivational” prayers into his coaching. Eventually, these prayers matured into public, after-game sessions, where both Kennedy’s players and players on the other team would kneel around Kennedy as he held up helmets from both teams and led students in prayer.

After games, Kennedy would also walk out to the 50-yard line, where he would kneel and pray in front of students and spectators. Initially, he did so alone, but after a few games students started to join him — eventually, a majority of his players did so. One parent complained to the school district that his son “felt compelled to participate,” despite being an atheist, because the student feared “he wouldn’t get to play as much if he didn’t participate.”

When the Bremerton school district learned of Kennedy’s behavior, it told him to knock it off — though it did offer to accommodate Kennedy if he wanted to pray when he wasn’t surrounded by students and spectators. And Kennedy did end some of his most extravagant behavior, such as the prayer sessions where he held up the helmets while surrounded by kneeling students.

But Kennedy also went on a media tour, presenting himself as a coach who “made a commitment with God” to outlets ranging from local newspapers to Good Morning America. And Kennedy’s lawyer informed the school district that the coach would resume praying at the 50-yard line immediately after games.

At the next game following this tour, coaches, players, and members of the public mobbed the field when Kennedy knelt to pray. A federal appeals court described this mob as a “stampede,” and the school principal said that he “saw people fall” and that, due to the crush of people, the district was unable “to keep kids safe.” Members of the school’s marching band were knocked over by the crowds.

And, contrary to Gorsuch’s repeated claims that Kennedy only wanted to offer a “short, private, personal prayer,” Kennedy was surrounded by players, reporters, and members of the public when he conducted his prayer session after that game. We know this because Justice Sonia Sotomayor includes a picture of the scene in her dissenting opinion.

Gorsuch dismisses this photographic evidence by claiming that “not a single Bremerton student joined Mr. Kennedy’s quiet prayers” after this game — he claims that the players depicted in this photograph are “from the opposing team.”

Whether those players are from the Bremerton school district or not, that doesn’t change the fact that Kennedy engaged in very public prayer sessions, and did so while acting as an official representative of a public school. Nor does it change the fact that, after he was ordered to cease this activity, Kennedy went on a media tour that seemed designed to turn his supposedly “quiet prayers” into a public political spectacle, a spectacle that both players and spectators eagerly participated in.

Under the real facts of Kennedy’s case, Kennedy violated the Constitution.

The Lemon case, which the Court overruled in Kennedy, held that the government’s actions “must have a secular legislative purpose,” that their “principal or primary effect must be one that neither advances nor inhibits religion,” and that the government may not “foster ‘an excessive government entanglement with religion.’”

A public school official conducting a very public prayer during the course of his official duties as a government employee clearly violates this Lemon test.

Lemon was handed down in a different era, when the Court insisted that the government must remain neutral on questions of religion. Just last week, however, in a case about government funding of religious education, the Supreme Court disparaged such calls for neutrality — even holding that laws which deny funding to religious institutions in order to maintain the government’s neutrality on matters of religion are unconstitutional.

So, in light of that and similar decisions, it’s hardly a surprise that the Court’s new majority decided to overrule Lemon. Indeed, in a line that adds to the many falsehoods in Gorsuch’s opinion, he inaccurately claims that the Court “long ago abandoned Lemon.” Gorsuch also criticizes Lemon because it allegedly “led to ‘differing results’ in materially identical cases.”

Even now that Lemon is overruled, however, the Court’s decision in Lee v. Weisman (1992), which prohibits public schools from coercing students into religious exercise, should have prohibited Kennedy’s actions.

In Lee, a public middle school invited a rabbi to open and close its graduation ceremony with prayers. The Court held that these prayers imposed subtle pressure on students to join a religious ceremony, and therefore were not allowed.

“The undeniable fact,” Justice Anthony Kennedy wrote in that decision, “is that the school district’s supervision and control of a high school graduation ceremony places public pressure, as well as peer pressure, on attending students to stand as a group or, at least, maintain respectful silence during the Invocation and Benediction.” Such pressure, “though subtle and indirect, can be as real as any overt compulsion,” as it leaves a young nonadherent with “a reasonable perception that she is being forced by the State to pray in a manner her conscience will not allow.”

Kennedy’s prayer sessions were, if anything, more coercive than the ceremonial prayers offered in Lee. A graduation ceremony, by its very nature, marks the end of a public school’s ability to wield coercive power over its departing students. Kennedy, by contrast, wielded ongoing authority over his students when he conducted his prayer sessions. Students who joined those sessions might hope to ingratiate themselves to their coach and gain more playing time and other perks as a result. Students who refused to participate might have feared antagonizing their coach — and losing playing time, a potential college recommendation letter, or a promotion from the junior varsity team to the varsity squad as a result. (Kennedy served as both the head coach of the JV team and an assistant coach on the varsity team.)

To this, Gorsuch claims that there is “no indication in the record that anyone expressed any coercion concerns to the District.” Even if that were true, it would not obviate the fact that teachers and students wield considerable coercive authority over their students, and that students understandably may be reluctant to complain about a teacher or coach for this reason.

Gorsuch also claims that Kennedy was merely acting as a private citizen, and not as a public school employee, when he prayed at the 50-yard line. The school district, Gorsuch repeatedly notes, permitted coaches to take “a private moment” after each game “to call home, check a text, socialize, or engage in any manner of secular activities.” Thus, a coach who wants to spend this moment of free time quietly praying should be allowed to do so.

Again, if the facts of this case resembled the false facts laid out in Gorsuch’s opinion, then Gorsuch would have a point. Public school employees may engage in private acts of devotion, such as saying a prayer over their lunch in a school cafeteria while they are on the job.

But there’s nothing private about a school employee conducting a media tour touting his plans to pray at the 50-yard line of a football field immediately after a game. There is nothing private about the coach carrying out that plan — especially when he does so surrounded by kneeling players, cameras, and members of the public.

In any event, while Gorsuch’s opinion does overrule Lemon, it does not purport to overrule Lee. And, as explained above, Lee permits public school employees to engage in the kind of private, quiet prayer that Gorsuch falsely claims Kennedy engaged in after football games.

That means that the doctrinal implications of Gorsuch’s Kennedy opinion on future cases in which public school employees coerce their students into religious exercise are far from clear. If Gorsuch had held that the Constitution permits Kennedy to do what he actually did, then that would be a hugely consequential decision that would gut the Court’s previous decision in Lee.

But, because Gorsuch paints such a misleading picture, involving a coach who offered a “short, private, personal prayer,” the more limited holding of Kennedy is that this hypothetical activity is allowed. And, again, Lee already permits public school employees to engage in private, personal prayers.

Kennedy will no doubt inspire other teachers and coaches to behave similarly to Coach Kennedy, but those teachers and coaches will do so at their own peril. Gorsuch’s opinion doesn’t weigh whether a coach is allowed to do what Kennedy actually did. That remains an open question, because the Court did not actually decide that case.

Guns, abortion, prayer in schools, and next up is the government's ability to fight climate change.

As always, if you find value in this work I do, please consider helping me keep it sustainable by joining my weekly newsletter, Sparky’s List! You can get it in your inbox or read it on Patreon, the content is the same.

Aurelia calm down, you're cool as fuck

Rep. Mary Miller and incumbent Republican Rep. Rodney Davis in a primary run-off for Illinois’ 15th Congressional District. Davis however, made the mistake of supporting an independent Jan. 6 commission to investigate the events surrounding the attempted coup. This means that disgraced former President Donald Trump, apparently guilty of trying to overthrow our country’s democracy to retain his powerful position, has thrown his support behind Miller. The polling, as of now, seems to be something of a coin-toss.

Both candidates have been going after one another with ads hitting well below the belt on issues such as military strength, immigration, and pedophilia. Huh? How? Did you know that if you left 1,000 rats in a steel room with no food they would very quickly begin to eat one another? That is basically what a GOP primary is like. On Saturday, Trump came to Illinois looking rather … ruddy.

“President Trump, I want to thank you for the historic victory for white life in the Supreme Court yesterday.” She didn’t say that aloud, did she?

She did.

Ms. Miller’s spokesman, Isaiah Wartman, told NBC News that Miller misspoke and meant to say “right to life,” not “white life,” during her comments. His proof is that you “clearly see she is reading off a piece of paper,” which I guess is meant to show that no one in their right-wing mind would write down “white life” for a speech thanking one of the most openly racist former presidents since Woodrow Wilson.  

Miller also tweeted out this attempt at subterfuge:

Of course, many people made sure to point out that Rep. Mary Miller made a similarly suspect statement during a speech she gave on Jan. 6, 2021—a date that might ring a bell for some—where she decided the best way to make her point was to name-check and then agree with Adolf Hitler. Yes, that Adolf Hitler.

In Miller’s defense, she’s basically a racist like the rest of the people representing her political party. There isn’t much new here other than she’s saying the once quiet part out loud. The incumbent Republican, Rodney Davis, is no picnic either. But, Davis did choose to certify the 2020 election, which means by today’s standards he’s among the handful of Republican operatives still seeming to support the concept of democracy.

Probably more telling is where we are today compared to where we were less than a decade ago. Back in 2013, a central Illinois Republican Party chairman resigned after he attacked a Black, female Republican candidate in a racist screed. Who was she challenging? Rep. Rodney Davis. Former Montgomery County Chair Jim Allen seems to have finally won the day, as racist Mary Miller has now ascended high enough, and the national conversation has become toxic enough, that a little bit of the old classic racism is back in vogue for the GOP.

The only difference, for now, is that they still enjoy claiming they are not racist. That’ll fade.

Updating your knowledge of redistricting on Daily Kos Elections’ The Downballot podcast

The Supreme Court on Monday ruled in favor of a Washington state football coach who was suspended over his on-field prayers following games.

The justices’ decision, largely breaking 6-3 along the court’s usual ideological lines, found that the school system infringed on the coach’s religious freedom and free-speech rights by seeking to block him from engaging in public prayers on the field while flanked by student athletes after games.

The court's ruling, in line with a series of recent decisions in favor of religious litigants, is not a major overhaul of church-state legal doctrine. But it is likely to make government employers more cautious about disciplining employees who engage in religious activity in the workplace, even if others complain about it.

The religious liberty case was filed by Joseph Kennedy, a high school assistant football coach who was placed on administrative leave by Bremerton School District in 2015 after refusing to stop kneeling to pray audibly at the 50-yard line after his team’s games.

Kennedy and religious freedom advocates argued the coach was exercising his First Amendment right to pray. But the school district told the justices that Kennedy’s actions were coercive, and players’ parents complained their children on the team felt compelled to participate.

Justice Neil Gorsuch wrote the majority opinion, the bulk of which garnered the support of all the court’s Republican appointees.

“Both the Free Exercise and Free Speech Clauses of the First Amendment protect expressions like Mr. Kennedy’s. Nor does a proper understanding of the Amendment’s Establishment Clause require the government to single out private religious speech for special disfavor,” Gorsuch wrote. “The Constitution and the best of our traditions counsel mutual respect and tolerance, not censorship and suppression, for religious and nonreligious views alike.”

Justice Sonia Sotomayor, in a dissent joined by Justices Elena Kagan and Stephen Breyer, included several photos of the Kennedy’s on-field prayers and called the court's decision “misguided.”

“It elevates the religious rights of a school official, who voluntarily accepted public employment and the limits that public employment entails, over those of his students, who are required to attend school and who this Court has long recognized are particularly vulnerable and deserving of protection,” Sotomayor wrote.

During oral arguments in April, the court’s conservative justices sounded concerned over the school district's intrusion on Kennedy’s religious practice. The other justices focused their attention on the potential for coercion. They questioned if Kennedy’s prayers infringed on the religious rights of public school students and even parents’ ability to dictate their children’s religious activities.

Justice Brett Kavanaugh, who raised concerns at that argument session about coaches or other authority figures using their power to pressure students to join religious or other unrelated activities, declined to sign on to the portion of Gorsuch’s opinion that said the coach’s actions didn’t amount to coercion. Kavanaugh joined the bottom-line ruling against the school system in the case, but did not write separately to elaborate on his views.

Kennedy celebrated his victory Monday in the long-running dispute.

"I just can't stop smiling, and thank God and thank everybody who supported me. And I found out that I'm not insane," Kennedy said on Fox News just after the decision. "It just feels good the First Amendment is alive and well."

Asked if he'd return to the Washington state school, he said: "Soon as the school district says, 'Hey, come back,' I'm there, absolutely."

The school district issued a statement pledging to put the polarizing fight behind it.

"We followed the law and acted to protect the religious freedom of all students and their families. In light of the court’s decision, we will work with our attorneys to make certain that the Bremerton School District remains a welcoming, inclusive environment for all students, their families and our staff. We look forward to moving past the distraction of this 7-year legal battle so that our school community can focus on what matters most: providing our children the best education possible," the statement said.

Monday's decision came on the second round the case made at the high court. The justices ruled against Kennedy in 2019 because he had not proven that his prayer ritual was the basis for the school’s decision to suspend him.

The ruling on the coach's case was among three decisions released Monday, following the court's blockbuster decision Friday overturning Roe v. Wade. Four cases remain to be decided before the court wraps up for the summer, including one about the powers of federal regulatory agencies and another in a case challenging President Joe Biden's effort to end former President Donald Trump's policy requiring most asylum applicants at the U.S.-Mexico border to remain in Mexico while awaiting a hearing in the U.S.

Olivia Olander contributed to this report.

“Originalism has been the reigning constitutional theory of legal conservatives since the election of Ronald Reagan,” a contributor to the National Review wrote recently, with glowing approval. The theory, which views jurisprudence as frozen in time, flatly rejects the idea of the Constitution as a a living and evolving document and instead demands that we interpret its provisions exactly as the framers intended.

This week, what was once a fringe intellectual concept, confined to conservative legal circles, achieved its ultimate ascendance. In a decision that purports to rely on deep historic knowledge of the founding generation’s views on gun control, the conservative majority on the Supreme Court knocked down a New York State law limiting the concealed carry of firearms. Drafted by Justice Clarence Thomas, the decision applies a strict originalist frame to conclude that “[o]nly if a firearm regulation is consistent with this Nation’s historical tradition may a court conclude that the individual’s conduct falls outside the Second Amendment’s unqualified command.’”

Thomas’ decision, endorsed by his five Republican-appointed colleagues, builds on the court’s earlier, originalist decision in District of Columbia v. Heller, which located in the Second Amendment an individual constitutional right to own firearms.

There’s just one problem. Both decisions get the history wrong.

There is ample reason to disagree with originalism as a legal philosophy. Should a 21st century society really interpret its Constitution by the standards of 1787 — an era before the introduction of semi-automatic weaponry, steam power, penicillin, automobiles, trains, electric lights and indoor plumbing? In some ways, though, that’s a pointless debate at the moment. With originalists holding six of the Supreme Court’s nine seats, we’re all living in an originalist world.

The functional problem with originalism is that it requires a very, very firm grasp of history — a grasp that none of the nine justices, and certainly few of their 20-something law clerks, freshly minted from J.D. programs, possess.

It’s difficult to become an expert in American political, legal or social history. It’s quite easy, though, to cherry-pick historical examples that prop up an end in search of a rationale — which is precisely what the Supreme Court majority did this week, twice.

In its recent gun control decision, just like in its recent abortion decision, the Supreme Court’s majority showed just how intellectually fragile the originalist project really is.

“A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.”

Many Americans find the Second Amendment poorly constructed and confusing. Historians do not. In the 18th century, when Congress passed and the states ratified the amendment, political consensus held that rights and obligations were two sides of the same coin. “The rights of persons that are commanded to be observed by the municipal law are of two sorts,” wrote Sir William Blackstone, the eminence grise of Anglo-American legal scholarship. “First, such as are due from every citizen, which are usually called civic duties; and second, such as belong to him, which is the more popular acceptance of rights … reciprocally, the rights as well as the duties of each other.”

As it pertained to gun ownership, the right to bear arms was inextricably connected to the citizen’s obligation to serve in a militia and to protect the community from enemies domestic and foreign.

The concept of a “well-regulated” community — one in which order prevailed, and one which male citizens had a duty to uphold — was not a rhetorical quirk specific to the Second Amendment. It was a pervasive term. The founding generation shared a widespread belief that there was a tension between “natural liberty and those principles of equal security established in a well-regulated society.” In this context, most Americans in the 1790s would have found the Second Amendment crystal clear. The federal government could not prevent citizens from dispatching their obligation to protect their communities, namely, by maintaining armed militias.

The Pennsylvania state constitution, adopted in 1776, and often cited incoherently by opponents of gun control, was perfectly clear on this point when it affirmed that “the people have a right to bear arms for the defense of themselves and the state.” Notably, this provision did not appear alongside sections establishing individual rights to free expression and religion. There was a distinction, observed Albert Gallatin, who later served as Pennsylvania congressman and U.S. Treasury secretary, between “a declaration of the rights of the people at large or considered as individuals.” And on this point, the Pennsylvania constitution was unambiguous. “The freemen of this commonwealth and their sons shall be trained and armed for its defence under such regulations, restrictions, and exceptions as the general assembly shall by law direct.”

Scribble Scrabble, the pen name of an influential polemicist in Massachusetts (it was common for prominent men to write pseudonymously), echoed this prevailing logic when he held that the Massachusetts “Bill of Rights secures to the people the use of arms in common defense.” As for the individual right to bear arms, it existed, Scribble Scrabble maintained, it “being a natural right, and not surrendered by the constitution” — unless and until the “legislature shall think fit to interdict.” Meaning, under the terms of the commonwealth’s new constitution, the right to bear arms joined with militia service was constitutionally guaranteed; the right to bear arms in an individual capacity was a natural and common law right that the legislature could proscribe.

In the case of the Second Amendment, Congress sought to assuage the concerns of antifederalists who feared the rise of a large standing army that might stamp out Americans’ liberties, much as the British army had done in the 1760s and 1770s. The amendment provided that Congress could never deprive people the right to own firearms in the dispatch of their obligation to fulfill militia service. The right to own a gun for individual self-protection was a different — a matter of common law that, as Scribble Scrabble noted, could be expanded, modified or taken away by legislation.

The distinction between collective rights and obligations to bear arms, and individual rights to gun ownership, was widely understood. In Virginia, Thomas Jefferson attempted to include a specific individual right to bear arms in the state constitution, to complement the existing provision safeguarding militias. His effort failed. Similar efforts failed in other states.

One might argue that early state constitutions were distinct from the federal Constitution approved by convention in 1787. But these early state documents deeply informed the federal effort in Philadelphia. The discussion around their adoption lends an understanding of how Americans thought about rights in the late 18th century.

But to appreciate how the founding generation thought about firearm regulation, we can look at what they did, and not just what they said. James Madison, the author of the Bill of Rights, twice introduced state legislation in Virginia that would impose penalties on any individual who “bear[s] a gun out of his inclosed ground, unless whilst performing military duty.”

You read that right. The author of the Second Amendment drafted statewide legislation that was effectively a forerunner to the New York state law that the Supreme Court just struck down. The bill, which was really aimed at regulating deer hunting, did not pass. But it clearly demonstrated that Madison viewed individual gun ownership as well within the state’s regulatory prerogative.

In the Early Republic, local and state authorities frequently confiscated guns from persons they deemed a menace to public safety, or simply disloyal. Pennsylvania denied any individual who “refuse[d] or neglect[ed] to take the oath or affirmation” of allegiance to the commonwealth the right to keep firearms in his “house or elsewhere.” Massachusetts imposed the same restriction on “such Persons as are notoriously disaffected to the Cause of America, or who refuse to associate to defend by Arms the United States Colonies.” Otherwise put: no loyalty, no militia service; no militia service, no gun.

States in the Early Republic commonly regulated the concealed carry of guns. In Ohio, “whoever shall carry a weapon or weapons, concealed on or about his person, such as a pistol, bowie knife, dirk, or any other dangerous weapon, shall be deemed guilty.”

They also commonly regulated gunpowder, as well, limiting the amount of ammunition an individual could keep and store at one time. Why? Because it was dangerous. Whole towns could catch fire and burn to the ground. The logic of originalism would suggest that states therefore have a right to regulate magazine sizes.

By originalism’s own, tenuous standards, the right of states to constrict individual gun ownership is as American as apple pie. But the Fourteenth Amendment poses its own challenges.

The Bill of Rights originally proscribed what Congress could do. States, on the other hand, were free to limit the freedom of speech, assembly, religion and firearm ownership — the right to due process — the right to a jury trial. And they frequently did.

The Fourteenth Amendment changed this equation. Ratified in 1868, it established that “No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

It would take decades before the Supreme Court used the Fourteenth Amendment to “incorporate” the Bill of Rights and thereby extend its provisions to the states. But that was the unmistakable trajectory.

The Republican Congress that wrote and passed the Fourteenth Amendment did so in reaction to a very specific set of circumstances. In the aftermath of the Civil War, former Confederate states passed a wave of “Black Codes” that attempted to restore slavery in all but name. State-level black codes impressed Black children into labor, restricted former slaves’ right to assembly and speech, and, notably, barred them from owning firearms. The amendment’s framers clearly intended to extend the protections afforded by the Bill of Rights to the states. These protections included the right to bear arms, as conservative originalists — including Justice Thomas, in his decision — consistently argue.

Again, it’s one thing to cherry-pick historical examples. It’s another to know one’s history.

Jonathan Bingham, the amendment’s principal author, was very clear. The new provision was intended to require equal treatment under the law. States could not afford some people the right to free expression or assembly (or gun ownership), but not others, strictly on the basis of race. The idea wasn’t that citizens had a right to individual gun ownership. It was that states could not discriminate on the basis of race.

Moreover, Republicans in 1868 were deeply invested in the maintenance of “Negro militias,” formed by Reconstruction state governments, that protected those same state governments from violent overthrow by Klansmen and other while paramilitary units allied with the Democratic Party. As in 1787, during Reconstruction, the constitutional framers viewed gun rights through the prism of collective, communal obligation.

The Ulysses S. Grant administration reacted with great concern when Klansmen in South Carolina attempted to disarm Black militias whose guns had been furnished by the Republican-led state government. Notably, in their enforcement efforts, the attorney general and U.S. attorney for South Carolina rested their argument on the right and obligation of citizens — Black citizens — to fulfill militia service and thereby safeguard their local communities and state. The question at hand, they argued, was an organized attempt to “rob the people of their arms, and to prevent them from keeping and bearing arms furnished to them by the State Government. Is not that a conspiracy to defeat the rights of the citizens, secured by the Constitution of the United States, and guaranteed by the fourteenth amendment?”

None of this is to say that citizens should or should not be permitted to own guns. That’s another question.

But by its own, shaky logic, there is simply no compelling, originalist argument for a constitutional right to individual gun ownership. Framers of the Bill of Rights firmly held that the right to own guns existed solely in concert with the obligation to fulfill militia service and preserve a well-regulated peace.

That doesn’t mean that states cannot allow citizens to own and carry guns, openly or concealed. If the state of Texas wants to go that route, its legislature can (and has) passed positive laws to that effect. But there is no historical basis for a constitutional standard that denies New York or New Jersey the ability to restrict individual gun ownership.

The court also relied extensively on history to prop up its decision overturning women’s constitutional right to terminate a pregnancy, arguing that “the overwhelming consensus of state laws in effect in 1868,” when the Fourteenth Amendment was ratified, criminalized abortion. This is too clever by half. By the majority’s originalist standard, we should be guided by the prevailing laws and traditions in place when the Constitution was adopted. In the late 18th century, when Congress drafted the Bill of Rights, common law held that abortion was not criminal until the moment of “quickening” — the moment when a woman first felt a fetus move or kick. She alone could attest to the facts. In English and colonial courts, if a woman testified that her fetus had not been quick, she was held harmless of charges. Well into the 19th century, ads for patent abortion medicines ran prominently in newspapers and journals. States began outlawing abortion only in the mid and late 19th century, largely in response to efforts by (male) doctors to de-legitimize midwives and other paraprofessionals. By originalist logic, those laws were unconstitutional and should not be a basis for later interpretation. My point is not that abortion is constitutionally protected because it was a common law right in 1787. Rather, the court’s majority is cherry-picking its history, grasping for any historical example that props up the end it hopes to achieve.

Curiously, in the space of 24 hours, the court’s majority moved the goal posts — 1790s for guns, 1850s or so, for abortion — in determining what historical standard should inform the boundaries of constitutional exegesis.

The broader problem is that originalism essentially requires judges and their law clerks to earn a Ph.D. in American (and probably, as well, early modern English) history. A legal theory constructed on historical foundations doesn’t work if jurists aren’t well-versed in history.

Otherwise, originalism becomes an unserious game of cherry-picking examples — a political outcome in search of a supporting argument.

How birth control, cancer care, and more could change in a post-Roe America.

The end of Roe v. Wade will not only jeopardize access to abortion in many states, it could have wide-ranging and unpredictable consequences for medical care, including fertility treatment, contraception, and cancer care.

This post-Roe world will be, in many ways, a new era for medical care in the United States, one that could transform medical services for conditions that range far beyond pregnancy, either by making them illegal or by putting their legality in question.

The consequences are unpredictable. Michelle Banker, director of reproductive rights and health litigation at the National Women’s Law Center, told me in an interview before Friday’s decision that the effect on other types of health care will depend upon the answers to “open and untested questions” in US courts. Some of it will rest on how judges will interpret new state abortion bans. States could also be emboldened by the Supreme Court’s ruling to pass new legislation that restricts other medical services.

History would suggest places that outlaw abortion tend to have less access to other reproductive care as well. In Ireland, which only recently legalized abortion, there is still less access to in vitro fertilization and certain contraceptives than in the rest of Europe, even after abortion became legal. In the US, a health system that is already fractured will become even more so, limiting access to medical care particularly for marginalized patients. Whether you can get certain health care services may be predicated on where you live (or whether you can afford to travel).

“The breadth of the potential health care consequences is so broad,” Banker said. “The first place to start is this is going to result in the death of pregnant people.”

The United States has the highest maternal mortality rates among wealthy nations; Black Americans have a significantly higher mortality rate than anywhere else in the developed world. The risk of death from carrying a pregnancy to term is much higher than the risk of death from undergoing an abortion. One estimate puts the number of forced birth in the first year after Roe is overturned at 75,000; the maternal mortality rate in the US is about 1 in 10,000.

The impact the end of Roe could have on pregnancy care could reach much further. As the Atlantic’s Sarah Zhang wrote, pregnant women undergo genetic and other tests throughout their pregnancy, meant to assess the health of the fetus and identify any anomalies that could be fatal or life-altering. In some cases, parents who learn about these anomalies choose abortion. But that may no longer be so simple if abortion is now outlawed or severely limited. Decisions about whether to get genetic testing and when could be affected.

By the same token, most abortion bans would carve out exceptions if the health of the mother were in jeopardy. But whether a complication represents a life-threatening risk to the mother’s health is in part a judgment call on the part of her doctor — and the possibility of legal consequences could make the cost of mistakes much higher.

“At the very least, there may well be a chilling effect due to providers’ and patients’ uncertainty as to whether treatment could expose them to civil or criminal liability,” Banker said.

Fetal personhood laws that convey constitutional protections to unborn fetuses would further limit a pregnant person’s choices in medical care. Several states have attempted to pass such a law, but they have thus far been held up by the courts. This new post-Roe jurisprudence could embolden those states and others to put such measures into place. Law enforcement or private citizens, depending on the state law, could bring complaints. The recently signed Texas law, for example, deputizes private citizens by creating a financial incentive for them to take civil action against people who seek or provide abortions.

Or, in a less extreme example, what happens if a pregnant person is also receiving cancer treatment or taking mental health medication that could affect the health of their fetus? If they stop receiving that medical care, their health could be in danger. But if they continue to receive it, the fetus could be affected. What are they and their doctor supposed to do?

“The laws that criminalize abortion are going to impact medical decision-making, and that’s terrifying,” Banker said.

Supporters of abortion rights fear that, unchained by the Supreme Court, states could push deeper and deeper into the lives of pregnant women and the decisions they make about how to conduct themselves.

People have been arrested for substance use during pregnancy, based on reasoning that they are harming the growth of the pregnancy. Tennessee passed the first law permitting the prosecution of pregnant women who use drugs. That alone is objectionable to people who oppose a criminalized approach to substance use. But they also worry that such laws are just the tip of the iceberg in a post-Roe reality. Could a pregnant woman be charged with a crime if she drinks a glass of wine? Or if she goes on a hiking trip that a complainant thinks would imperil the health of her fetus?

These questions will be answered by the specifics of state laws and the discretion of prosecutors in different places. But they are questions that were unfathomable just a few months ago.

“How far down this path could states go?” said Elizabeth Nash, who tracks state policy at the Guttmacher Institute, in an interview before Friday’s Supreme Court ruling. “That might sound a bit far-fetched to people but we have seen states take drastic actions in relation for some pregnant people.”

What the end of Roe means for other kinds of reproductive health care

Beyond medical care during pregnancy, the end of Roe could usher in a wave of new restrictions on access to contraception and fertility treatment.

The right to contraception is currently upheld by two previous Supreme Court decisions: Griswold v. Connecticut enshrined the right for married people and Eisenstadt v. Baird did the same for unmarried people.

But the current Court is clearly not bound by those precedents if they are willing to overturn Roe v. Wade. And some prominent Republicans, such as Sen. Marsha Blackburn (R-TN), have referred to those prior court decisions as constitutionally unsound in the days since the Alito draft leaked.

“That puts case law in jeopardy because it relies on this idea that rights not specifically named in the Constitution are only entitled to special protection if they are deeply rooted in the nation’s traditions,” Banker said.

Other experts I spoke to agreed. “The stage is very much set for state legislators to ban contraception if they want to,” Sean Tipton, who works on policy issues at the American Society for Reproductive Medicine, told me before the Supreme Court ruled.

Would state legislators want to ban condoms or even birth control pills? Maybe not. But new laws or even state abortion bans could target other kinds of birth control.

Many of these states want to define the beginning of life as early as possible in the biological process. Oklahoma, for one, passed a law that recognized an unborn child’s life as beginning at fertilization. Other states describe the moment of conception. But, as Tipton pointed out, the early stages of pregnancy are, medically speaking, a process. There is not a single moment of conception.

But if states define life in such a way, then contraceptives that could prevent a fertilized egg from becoming implanted could be under threat.

IUDs and the morning-after pill would be threatened under such a legal regime. In the vast majority of cases, IUDs work by preventing fertilization: the sperm and the egg never meet in the first place. But they also might prevent implantation under certain circumstances. There is also some controversy about whether Plan B, the morning-after pill, prevents fertilization in the first place or whether it blocks the implantation of a fertilized egg. The latter could arguably be illegal in states that recognize life at fertilization. Lawmakers in Idaho, for example, announced hearings on whether to ban emergency contraceptives and possibly IUDs before the Supreme Court had even issued its final ruling.

Then there are fertility treatments — particularly in vitro fertilization — that depend on fostering a larger number of eggs but typically only use a small number of them. If an embryo is conferred the same rights as a toddler, are those procedures suddenly illegal?

As Tipton put it to me, what if a doctor puts 199 embryos in a freezer for IVF treatment, and 198 of them come out of the freezer okay? “Does that mean a homicide has been committed?” he said.

Experts imagine other possible restrictions on procedures like IVF, particularly in states that define life as beginning at conception or fertilization. That alone could put IVF in legal jeopardy. States could also institute new restrictions on those procedures, now that the right to privacy has been redefined. Maybe the number of embryos could be limited. Maybe state legislators restrict which people are allowed to avail themselves of those services — to only straight married couples, for example.

And while there is a tension between ostensibly “pro-life” politicians restricting access to fertility care, there is an expectation that anti-abortion advocates would be willing to let these medical services be collateral damage in order to achieve the goal of outlawing abortion.

“Most right-to-life proponents are not interested in doing anything to hurt fertility patients,” Tipton said. “But they’re very willing to throw those patients under the bus to end abortion.”

Health care that has nothing to do with pregnancy could be affected too

The new jurisprudence could also affect access to health care that has nothing to do with pregnancy or reproduction, experts say.

Medical care for people undergoing a gender transition would be one possible casualty. “The decision in particular puts gender-affirming care in its crosshairs,” Banker said.

In the opinion, Alito cited a 1974 decision, Geduldig v. Aiello, that takes what Banker calls “a very narrow and cramped view” of what constitutes sex discrimination. For Alito’s purposes, that narrow view of sex discrimination supports the argument that banning abortion would not constitute discrimination against pregnant people on the basis of sex.

But Banker says the same logic could be applied to gender-affirming health care such as surgery or hormonal treatments. If the Supreme Court’s definition of sex discrimination is now much narrower than it used to be, then opponents of those services could argue that denying a person gender-affirming medical care is not actually discriminatory.

“Those arguments are easily refuted under modern precedent,” Banker told me. “But the draft’s language and citation to Geduldig raises concerns that we may see those arguments gain more traction.”

Old battles over medical research or treatment could also resurface, Tipton said. Modern science has developed treatments for spinal cord injuries, myelofibrosis, and even certain cancers by relying on stem cells. More treatments are in clinical trials right now. But their prospects could be compromised if access to those materials is limited. Some stem cells are collected from adult body tissue, but others come from embryos.

Much of this will depend on how aggressive anti-abortion advocates decide to be, and on the success of abortion rights advocates in mounting a political and legal response to a ruling overturning Roe.

But it will undoubtedly be a new era for health care in the United States, with potentially devastating consequences for patients with a wide array of medical needs.

The Court was the midwife of Jim Crow, the right hand of union busters, the dead hand of the Confederacy, and now is one of the chief architects of America’s democratic decline.

Editor’s note, June 25: The following is an updated version of an essay that originally ran in Vox in May. We are republishing it with revisions in light of the Supreme Court’s decision overruling Roe v. Wade.

Well, it’s done. Justice Samuel Alito has achieved a goal that he and his fellow Republicans have dreamed of for decades. Roe v. Wade is overruled. The constitutional right to an abortion no longer exists.

Alito’s decision in Dobbs v. Jackson Women’s Health Organization may literally be the worst-kept secret in the Court’s history. An early draft of his opinion leaked to Politico in early May, something that has never happened in the Court’s modern history. And even if this leak had never occurred, the death of Roe became inevitable the minute Republicans gained a 6-3 supermajority on the Court.

Meanwhile, the Supreme Court’s public approval ratings are in free fall. A Gallup poll taken in June before the Court’s decision in Dobbs found that only 25 percent of respondents have “a great deal” or “quite a lot” of confidence in the Court, a historic low. And that’s after nearly a year’s worth of polls showing the Court’s approval in steady decline.

To this I say, “good.” The Dobbs decision is the culmination of a decades-long effort by Republicans to capture the Supreme Court and use it, not just to undercut abortion rights but also to implement an unpopular agenda they cannot implement through the democratic process.

And the Court’s Republican majority hasn’t simply handed the Republican Party substantive policy victories. It is systematically dismantling voting rights protections that make it possible for every voter to have an equal voice, and for every political party to compete fairly for control of the United States government. Alito, the author of the opinion overturning Roe, is also the author of two important decisions dismantling much of the Voting Rights Act.

This behavior is consistent with the history of an institution that once blessed slavery and described Black people as “beings of an inferior order.” It is consistent with the Court’s history of union-busting, of supporting racial segregation, and of upholding concentration camps.

Moreover, while the present Court is unusually conservative, the judiciary as an institution has an inherent conservative bias. Courts have a great deal of power to strike down programs created by elected officials, but little ability to build such programs from the ground up. Thus, when an anti-governmental political movement controls the judiciary, it will likely be able to exploit that control to great effect. But when a more left-leaning movement controls the courts, it is likely to find judicial power to be an ineffective tool.

The Court, in other words, simply does not deserve the reverence it still enjoys in much of American society, and especially from the legal profession. For nearly all of its history, it’s been a reactionary institution, a political one that serves the interests of the already powerful at the expense of the most vulnerable. And it currently appears to be reverting to that historic mean.

Alito wants abortion supporters to play a rigged game

There have only been three justices in American history who were appointed by a president who lost the popular vote, and who were confirmed by a bloc of senators who represent less than half the country. All three of them sit on the Supreme Court right now, and all three were appointed by Donald Trump.

Indeed, if not for anti-democratic institutions such as the Senate and the Electoral College, it’s likely that Democrats would control a majority of the seats on the Supreme Court, and a decision overruling Roe would not be on the table.

So it is ironic — for that reason, and others — that Alito’s opinion overruling Roe leans heavily on appeals to democracy. Quoting from an opinion by the late Justice Antonin Scalia, Alito writes that “the permissibility of abortion, and the limitations upon it, are to be resolved like most important questions in our democracy: by citizens trying to persuade one another and then voting.”

If Alito truly wants to put the question of whether pregnant individuals have a right to terminate that pregnancy up to a free and fair democratic process, polling indicates that liberals could probably win that fight on a national level.

In fairness, polling on abortion often misses the nuances of public opinion. Many polls, for example, allow respondents to say that they believe that abortion should be legal “under certain circumstances” or in “most cases,” leaving anyone who reads those polls to speculate under which specific circumstances people think that abortion should be legal. But as Tresa Undem, co-founder of the public opinion research firm PerryUndem, told Vox’s Rani Molla, “in all the work I’ve done — qualitative focus groups, in-depth interviews, surveys — the bottom line is that the public wants people making these decisions around abortion, not the government.”

Perhaps the best evidence that proponents of legal abortion could win a fair political fight, however, is the Supreme Court’s own polling. After the Court allowed a strict anti-abortion law to take effect in Texas last fall, multiple polls found the Supreme Court’s approval rating at its lowest point ever recorded. The recent Gallup poll finding only a small minority of the country has confidence in the Court suggests that public support for this partisan institution is continuing to erode.

But public opinion may not matter much in the coming political fight over abortion, because Alito and his fellow Republican justices have spent the past decade placing a thumb on the scales of democracy — making our system even less democratic than one that already features the Electoral College and a malapportioned Senate.

Alito authored two opinions and joined a third that, when combined, almost completely neutralize the Voting Rights Act, the landmark legislation that took power away from Jim Crow and ensured that every American would be able to vote, regardless of their race.

Similarly, the Court’s Republican majority held in Rucho v. Common Cause (2019) that federal courts will do nothing to stop partisan gerrymandering. Alito is also one of the Court’s most outspoken proponents of the “independent state legislature doctrine,” a doctrine that, in its strongest form, would give gerrymandered Republican legislatures nearly limitless power to determine how federal elections are conducted in their state — even if those gerrymandered legislatures violate their state constitution.

One of the most troubling aspects of this Court’s jurisprudence is that it often seems to apply one set of rules to Democrats and a different, more permissive set of rules to Republicans. Last February, for example, Alito voted with four of his fellow Republicans to reinstate an Alabama congressional map that a lower court determined to be an unconstitutional racial gerrymander.

In blocking the lower court’s order, Alito joined an opinion arguing that the lower court’s decision was wrong because it was handed down too close to the next election.

But then, in late March, the Court enjoined Wisconsin’s state legislative maps, due to concerns that those maps may give too much political power to Black people. March is, of course, closer to the next Election Day than February. So it is difficult to square the March decision with the approach Alito endorsed in February — though it is notable that the March decision by the Supreme Court benefited the Republican Party, while the previous decision was likely to benefit Democrats.

I could list more examples of how this Court, often relying on novel legal reasoning, has advanced the Republican Party’s substantive agenda — on areas as diverse as religion, vaccination, and the right of workers to organize. But really, every issue pales in importance to the right to vote.

If this right is not protected, then liberals are truly defenseless — even when they enjoy overwhelming majority support.

The Court’s current behavior is consistent with its history

In Marbury v. Madison (1803), the Supreme Court held that it has the power to strike down federal laws. But the actual issue at stake in Marbury — whether a single individual named to a low-ranking federal job was entitled to that appointment — was insignificant. And, after Marbury, the Court’s power to strike down federal laws lay dormant until the 1850s.

Then came Dred Scott v. Sandford (1857), the pro-slavery decision describing Black people as “beings of an inferior order, and altogether unfit to associate with the white race either in social or political relations, and so far inferior that they had no rights which the white man was bound to respect.” Dred Scott, the Court’s very first opinion striking down a significant federal law, went after the Missouri Compromise’s provisions limiting the scope of slavery.

It’s not surprising that an institution made up entirely of elite lawyers, who are immune from political accountability and cannot be fired, tends to protect people who are already powerful and cast a much more skeptical eye on people who are marginalized because of their race, gender, or class. Dred Scott is widely recognized as the worst decision in the Court’s history, but it began a nearly century-long trend of Supreme Court decisions preserving white supremacy and relegating workers into destitution — a history that is glossed over in most American civics classes.

The American people ratified three constitutional amendments — the 13th, 14th, and 15th — to eradicate Dred Scott and ensure that Black Americans would enjoy, in the 14th Amendment’s words, all of the “privileges or immunities of citizens of the United States.”

But then the Court spent the next three decades largely dismantling these three amendments.

Just 10 years after the Civil War, the Supreme Court handed down United States v. Cruikshank (1875), a decision favoring a white supremacist mob that armed itself with guns and cannons to kill a rival Black militia defending its right to self-governance. Black people, the Court held in Cruikshank, “must look to the States” to protect civil rights such as the right to peacefully assemble — a decision that should send a chill down the spine of anyone familiar with the history of the Jim Crow South.

The culmination of this age of white supremacist jurisprudence was Plessy v. Ferguson (1896), which blessed the idea of “separate but equal.” Plessy remained good law for nearly six decades after it was decided.

After decisions like Plessy effectively dismantled the Reconstruction Amendments’ promise of racial equality, the Court spent the next 40 years transforming the 14th Amendment into a bludgeon to be used against labor. This was the age of decisions like Lochner v. New York (1905), which struck down a New York law preventing bakery owners from overworking their workers. It was also the age of decisions like Adkins v. Children’s Hospital (1923), which struck down minimum wage laws, and Adair v. United States (1908), which prohibited lawmakers from protecting the right to unionize.

The logic of decisions like Lochner is that the 14th Amendment’s language providing that no state may “deprive any person of life, liberty, or property, without due process of law” created a “right to contract.” And that this supposed right prohibited the government from invalidating exploitative labor contracts that forced workers to labor for long hours with little pay.

As Alito notes in his opinion overruling Roe, the Roe opinion did rely on a similar methodology to Lochner. It found the right to an abortion to also be implicit in the 14th Amendment’s due process clause.

For what it’s worth, I actually find this portion of Alito’s opinion persuasive. I’ve argued that the Roe opinion should have been rooted in the constitutional right to gender equality — what the late Justice Ruth Bader Ginsburg once described as the “opportunity women will have to participate as men’s full partners in the nation’s social, political, and economic life” — and not the extraordinarily vague and easily manipulated language of the due process clause.

Indeed, one of the most striking things about the Court’s Lochner-era jurisprudence is how willing the justices were to manipulate legal doctrines — applying one doctrine in one case, then ignoring it when it was likely to benefit a party that they did not want to prevail.

In Hammer v. Dagenhart (1918), for example, the Supreme Court struck down a federal law that prohibited goods produced by child labor from traveling across state lines. The reason Congress structured this ban on child labor in such an unusual way is because the Supreme Court had repeatedly held prior to Dagenhart that Congress could ban products from traveling in interstate commerce — among other things, the Court upheld a law prohibiting lottery tickets from traveling across state lines in Champion v. Ames (1903).

But the rule announced in Champion and similar cases was brushed aside once Congress decided to use its lawful authority to protect workers.

The Court also did not exactly cover itself in glory after President Franklin Roosevelt filled it with New Dealers who rejected decisions like Lochner and Hammer. One of the most significant Supreme Court decisions of the Roosevelt era, for example, was Korematsu v. United States (1944), the decision holding that Japanese Americans could be forced into concentration camps during World War II, for the sin of having the wrong ancestors.

The point is that decisions like Dobbs, which commandeer the bodies of millions of Americans — or decisions dismantling the Voting Rights Act — are entirely consistent with the Court’s history as defender of traditional hierarchies. Alito is not an outlier in the Court’s history. He is quite representative of the justices who came before him.

The judiciary is structurally biased in favor of conservatives

In offering this critique of the Supreme Court, I will acknowledge that the Court’s history has not been an unbroken string of reactionary decisions dashing the hopes of liberalism. The Court’s marriage equality decision in Obergefell v. Hodges (2015), for example, was a real victory for liberals.

But the Court’s ability to spearhead progressive change that does not, like marriage equality, enjoy broad popular support is quite limited. The seminal work warning of the heavy constraints on the Court’s ability to effect such change is Gerald Rosenberg’s The Hollow Hope, which argues that “courts lack the tools to readily develop appropriate policies and implement decisions ordering significant social reform,” at least when those reforms aren’t also supported by elected officials.

This constraint on the judiciary’s ability to effect progressive change was most apparent in the aftermath of perhaps the Court’s most celebrated decision: Brown v. Board of Education (1954).

Brown triggered “massive resistance” from white supremacists, especially in the Deep South. As Harvard legal historian Michael Klarman has documented, five years after Brown, only 40 of North Carolina’s 300,000 Black students attended an integrated school. Six years after Brown, only 42 of Nashville’s 12,000 Black students were integrated. A decade after Brown, only one in 85 African American students in the South attended an integrated school.

The courts simply lacked the institutional capacity to implement a school desegregation decision that Southern states were determined to resist. Among other things, when a school district refused to integrate, the only way to obtain a court order mandating desegregation was for a Black family to file a lawsuit against it. But terrorist groups like the Ku Klux Klan used the very real threat of violence to ensure few lawsuits were filed.

No one dared to file such a lawsuit seeking to integrate a Mississippi grade school, for example, until 1963.

Much of the South did not really begin to integrate until Congress passed the Civil Rights Act of 1964, which allowed the Justice Department to sue segregated schools, and which allowed federal officials to withhold funding from schools that refused to integrate. Within two years after this act became law, the number of Southern Black students attending integrated schools increased fivefold. By 1973, 90 percent of these students were desegregated.

Rosenberg’s most depressing conclusion is that, while liberal judges are severely constrained in their ability to effect progressive change, reactionary judges have tremendous ability to hold back such change. “Studies of the role of the courts in the late nineteenth and early twentieth centuries,” Rosenberg writes, “ show that courts can effectively block significant social reform.”

And, while such reactionary decisions may eventually fall if there is a sustained political effort to overrule them, this process can take a very long time. Dagenhart was decided in 1918. The Court did not overrule it, and thus permit Congress to ban child labor, until 1941.

There are several structural reasons courts are a stronger ally for conservative movements than they are for progressive ones. For starters, in most constitutional cases courts only have the power to strike down a law — that is, to destroy an edifice that the legislature has built. The Supreme Court could repeal Obamacare, but it couldn’t have created the Affordable Care Act’s complex array of government-run marketplaces, subsidies, and mandates.

Litigation, in other words, is a far more potent tool in the hands of an anti-governmental movement than it is in the hands of one seeking to build a more robust regulatory and welfare state. It’s hard to cure poverty when your only tool is a bomb.

So, to summarize my argument, the judiciary, for reasons laid out by Rosenberg and others, structurally favors conservatives. People who want to dismantle government programs can accomplish far more, when they control the courts, than people who want to build up those programs. And, as the Court’s history shows, when conservatives do control the Court, they use their power to devastating effect.

This alone is a reason for liberals, small-d democrats, large-D Democrats, and marginalized groups more broadly, to take a more critical eye to the courts. And the judiciary’s structural conservatism is augmented by the fact that, in the United States, institutions like the Electoral College and Senate malapportionment give Republicans a huge leg up in the battle for control of the judiciary.

Simply put, the Supreme Court has not served the American people well. It’s time to start treating it that way.

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Joe Biden has long resisted attacking the Supreme Court, preferring instead to channel his ire toward cases he believes were wrongly decided.

But on Friday, after the majority of justices dealt a fatal blow to Roe v. Wade, the landmark decision that guaranteed the right to elective abortion, the president assailed the court as being captured by rightward extremism. In doing so, he raised the question: just how much of a blowtorch would he take to the judiciary heading into a crucial stretch of the midterm campaign?

“With this decision,” Biden said in his speech that followed the court’s ruling overturning Roe, “a conservative majority of the Supreme Court shows how extreme it is, how far removed they are from the majority of this country. It made the United States an outlier among developed nations in the world.”

For good measure, the president decried the “extreme and dangerous path the court is now taking us on.”

Biden has long prided himself as an institutionalist loath to challenge the validity of the court. He resisted signing onto a slate of proposed reforms that include expanding its membership, imposing mandatory age limits on justices or instituting a code of ethics. Friday’s remarks made no mention of such changes.

But they were notable, as far as Biden prepared speeches go, for their intense bite. The president singled out Justice Clarence Thomas by name for laying the groundwork to reconsider the right of same-sex marriage and for couples to make their own decisions on contraception. He also framed the court’s three newest members as being beholden to Donald Trump, the president who nominated them to the bench. The midterms, he added for good measure, would be defined by their ruling.

“This fall, Roe is on the ballot,” he said.

Despite the sharp rhetoric, Biden advisers don’t anticipate that he’ll use the court itself as a battering ram in the coming midterms. John Anzalone, a longtime Biden pollster, said while just a quarter of Americans have confidence in the Supreme Court, he does not envision Democrats running against the conservative Justices so much as the GOP candidates who would use their ruling to ban all abortions — many of them in “extreme cases.”

Friday’s ruling took the issue from the hypothetical to a reality, Anzalone said, and in all but 10-plus states abortion will be illegal — “and there will be a reckoning against the GOP because of this.”

“The key to a lot of close midterm races will be the outrageous quotes by GOP candidates on their position on abortion even in the case of rape and incest,” Anzalone said, recalling past Senate hopefuls in tight races who were felled by their own positions and words. “They are Todd Akins and Richard Mourdock on steroids.”

A Biden adviser echoed his remarks, pointing to the president’s emphasis on women being forced to carry the children of a rapist, and moves by congressional Republicans to impose a federal abortion ban. “Our messaging to the public is primarily going to be about how this is affecting people,” the adviser said.

How hard, if at all, Biden chooses to attack the Supreme Court could shape the contours of an election cycle in which Democrats are bracing for potentially widespread losses. Most midterms are a referendum on the party in control of the White House, which in turn tries to turn them into a choice between the two parties. To date, Biden has attempted to do just that, deeming Republicans as enthralled with Trump’s “ultra MAGA” brand. He has picked fights with Sen. Rick Scott (R-Fla.) over threats to entitlement programs and blasted Sen. Ron Johnson (R-Wis.) for putting Obamacare in the crosshairs.

But calls are growing from outside the White House to turn the midterms into a referendum on the court itself and to do so by attacking the institution and its conservative justices as political players whose power needs to be curtailed by growing Democratic majorities in Congress.

Mark Mellman, the Democratic pollster, said that “there will be a lot more impetus” behind some of the court reform proposals that Biden has resisted.

And Brian Fallon, executive director of court reform group Demand Justice, said Biden should subordinate his institutionalist streak and unrelenting belief that he could help bring back an era of bipartisan comity. He urged the president to not squander the political opportunity before him to make “a villain out of these Trump-appointed Supreme Court justices issuing hugely unpopular decisions that are extremely relevant politically."

"The White House is on the defensive over inflation and gas prices. ... And here is a contrast waiting to be drawn and the only thing stopping them is their allergy to picking fights on partisan lines,” Fallon said.

As evidence of the opportunity he believes is at hand, Fallon pointed to yet-to-be-released polling commissioned by his group and performed by Hart Research, showing that Democrats are more focused on the court than Republicans (69 percent to 60 percent), and that liberals are engaged much more than conservatives (71 percent to 47 percent). Traditionally, those numbers have been flipped, and exit polls of recent presidential elections found more Republicans than Democrats factored court appointments as their highest priority.

Fallon’s internal survey also found more than six in 10 voters across key battleground states say they are paying attention to the Supreme Court and its decisions, up from 51 percent in April 2021.

Biden’s remarks on Friday came during a week of pitched decisions on everything from Miranda rights to the legal limits of gun ownership. With decisions going routinely in conservative directions, Democrats up and down the ballot cast the court’s majority as ideologues who put their personal views ahead of constitutional duties.

Earlier Friday, House Speaker Nancy Pelosi ripped the justices that ruled to overturn Roe as “right-wing politicians that Donald Trump and Mitch McConnell packed the court with." And on Thursday, following the court striking down a law that required New York residents to have “proper cause” to carry a handgun, Sen. Chris Coons (D-Del.), a close Biden ally known for choosing his words carefully, blistered the court as being “led by conservative judicial activists who twist constitutional analysis to substitute their own policy preferences.”

Biden, for his part, laid out steps he’d take to try and dull the impact of the court’s decision. He spoke about the Justice Department intervening if states tried to block people from accessing contraception or traveling for an abortion. He also spoke about the threat of “extremist” governors and state legislators looking to block the mail in states with medicated abortion and again vowed that he would be taking more steps in the future.

“What we want to see fundamentally is him rising to this moment with executive actions that do everything possible to protect access to abortion, and there were some tangible steps in there,” said Leah Greenberg, co-executive director of the progressive group Indivisible.

But Greenberg went further than Biden would. She said the slate of rulings points to a need for reform and expansion because “we have seen what this court will do if it continues to go unchecked.”

“We have seen the court demonstrate that it intends to simply make the laws that it wishes to make in accordance with its extremist, right-wing philosophy,” she said. “And it is a moment for everyone who has previously placed their faith in an institutionalist reading of the court to recognize that this is not the court they have previously understood to be exercising power, and to update their views accordingly.”

Sam Stein contributed to this report.