The court’s first big Second Amendment case in more than a decade is looming over reform efforts.

Update, June 23, 11 am: The Supreme Court ruled 6-3 to strike down a New York law restricting carrying guns in public. The original story text, published before the ruling, is below.

The US Supreme Court is about to decide its first Second Amendment case in more than a decade. Its decision could severely limit the options available to state lawmakers that are considering gun control measures in the wake of a recent streak of major mass shootings.

The case, New York State Rifle & Pistol Association Inc. v. Bruen, concerns a more than 100-year-old New York law that requires anyone who wants a license to carry a concealed handgun in public to show “proper cause,” or a specific need to defend themselves.

The court’s conservative majority seemed to favor striking down that “proper cause” provision during oral arguments. But how it goes about doing so has important implications for states that want strong gun control laws.

If the ruling is more limited, the Court could remove a critical barrier that has restricted the number of people who can legally carry a concealed handgun in New York and seven other states with similar laws. The Supreme Court might rule more broadly, however, and use the case as a vehicle to create a new standard by which courts must evaluate all Second Amendment cases. Essentially, that would reopen the debate over a whole set of legal questions around gun control policy that were previously considered settled.

Should the justices do that, states potentially would not only need to rethink concealed weapon laws but also a slew of other gun control ones — from minimum age restrictions to assault weapons bans.

The court could just rule narrowly on the New York law

If the New York “proper cause” provision is struck down, it would become far easier to legally carry a concealed handgun in the state. And it would come at a moment when New York City is grappling with a 16 percent increase in shootings over the last year.

A court decision would also potentially undermine similar laws in California, Massachusetts, New Jersey, Maryland, Rhode Island, Delaware, and Hawaii, though those states would likely try to differentiate their laws from the New York one and argue that they should be upheld. Together, those eight states are home to about 80 million people, or about one-quarter of the US population, and they each have lower-than-average gun violence rates.

The court could also rule more broadly

If the justices go even further in creating a new legal framework to evaluate Second Amendment cases, the decision could also reignite legal fights over a swath of other gun control measures, embroiling states in court battles over laws that have been on the books for years.

Right now, courts typically take into account a number of factors when evaluating Second Amendment cases challenging gun regulations. That includes how guns have been regulated historically, social science research, and whether the regulation impacts the core Second Amendment right to have a firearm in your home for self-defense.

Second Amendment advocates, however, have argued that the courts should look exclusively to the history and tradition of permissible regulation at the time that the Second Amendment was adopted in 1791. The Supreme Court could adopt that framework through Bruen.

Rewriting how courts evaluate gun control policies in that way would put “a burden on jurists to understand history at a particular point in time and declare a right, even though they’re here in modern day and are not historians,” said Esther Sanchez-Gomez, senior litigation attorney with Giffords Law Center to Prevent Gun Violence. It could also result in inconsistent rulings if different jurists interpret history differently.

Such a ruling would also effectively undermine previous gun control rulings made under the current legal framework, Sanchez-Gomez said, which would lead to the “re-litigation of all of the laws that have already been upheld under the Second Amendment.”

That would have ripple effects that “extend well beyond” the New York law at issue in the case, potentially throwing states’ age limitations, assault weapon bans, large capacity magazine restrictions, taser restrictions, and other policies onto shaky legal footing, said Eric Ruben, a Brennan Center for Justice fellow and assistant professor of Law at SMU Dedman School of Law.

“Every weapon law you can imagine would have to be considered under this new methodology,” he said. “That could unsettle all of those issues that we thought were more or less resolved in lower courts.”

Gun control advocates are already gearing up for those potential legal attacks from pro-gun rights states and organizations.

“We’re ready to stand by states and cities who are looking to pass gun safety laws and help them defend those laws,” said Janet Carter, director of issues and appeals at Everytown Law.

States are readying their other options to restrict gun access

New York Gov. Kathy Hochul, who recently pushed through a gun control package in the wake of last month’s mass shooting at a supermarket in Buffalo, has already announced that she will consider calling a special session of the state legislature if the Supreme Court strikes down the state law.

One thing that lawmakers might consider is explicitly defining and expanding the kinds of “sensitive locations” where concealed guns cannot be carried. The Supreme Court explicitly did not rule out restrictions on guns in sensitive locations and even named schools and government buildings as examples in its 2008 decision in District of Columbia v. Heller, the last major Second Amendment case it took up. If states like New York can’t keep people from carrying concealed guns through its “proper cause” licensing requirement, then they might be able to do so in a broader array of public spaces.

“I think that we could expect some effort both at the state and at the local level, to be more specific about where it’s not permissible to carry guns. How broadly policymakers go will determine how likely it is that it’s going to get litigated,” Ruben said.

Essentially, states would be more limited when it comes to restricting concealed carry than they are now, but they would still be able to take some steps to keep concealed guns from being allowed everywhere. They still have means to restrict the number of guns that are on the streets, but they’ll have to look for workarounds if they can’t require that gun owners show “proper cause” to concealed carry.

Today, the U.S. Food and Drug Administration issued marketing denial orders (MDOs) to JUUL Labs for all of their products currently marketed in the United States. From a report: As a result, the company must stop selling and distributing these products. In addition, those currently on the U.S. market must be removed, or risk enforcement action. The products include the JUUL device and four types of JUULpods: Virginia tobacco flavored pods at nicotine concentrations of 5.0% and 3.0% and menthol flavored pods at nicotine concentrations of 5.0% and 3.0%. Retailers should contact JUUL with any questions about products in their inventory. "Today's action is further progress on the FDA's commitment to ensuring that all e-cigarette and electronic nicotine delivery system products currently being marketed to consumers meet our public health standards," said FDA Commissioner Robert M. Califf, M.D. "The agency has dedicated significant resources to review products from the companies that account for most of the U.S. market. We recognize these make up a significant part of the available products and many have played a disproportionate role in the rise in youth vaping." Further reading: Biden Administration Targets Removal of Most Nicotine From Cigarettes.

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Democrats are calling the Senate’s bipartisan gun safety bill a first step to combat gun violence. The reality is, the second step isn't coming anytime soon.

The chamber is on the cusp of passing Congress’ most significant gun safety legislation in nearly 30 years. And even as Democrats hail that progress, they’ve described the package as a compromise that brings them closer to broader gun policy goals, such as expanding background checks and banning assault weapons.

But it took nearly a decade between the elementary school mass shootings in Newtown, Conn., and Uvalde, Texas, for the Senate to produce a substantial legislative response that could clear a filibuster. Given that, senators acknowledge that additional action on guns may be years away.

Sen. Tim Kaine (D-Va.) said describing the gun measure as a first step “accurately reflects people’s sincere hopes, and often success builds on success.” But he cautioned that “my read of the room here is, if we do this, we’ve got a lot of other issues that are on the table right now. And it’ll probably be a while before we return to anything in the gun safety space.”

Two months ago, everyone would have scoffed at the notion that the Senate could advance a bipartisan bill on one of the most polarizing subjects in American politics. Yet the final product also highlighted the stiff headwinds hindering support for broader proposals like raising the minimum age for assault weapons buys to 21.

And it’s not going to get any easier to write gun bills in a chamber where most legislation needs some GOP votes. The House is likely to flip to Republican control this fall. Democrats don’t have the votes to weaken the filibuster. Not to mention that a guns deal viewed by many Democrats as a modest accommodation to the GOP is getting support from fewer than one-third of Senate Republicans.

Some Democrats are tired of hearing the party line that they will come back for more later.

“This almost fell apart three times over the weekend. We are barely getting this done. And so one of the things I struggle with is, this constant ‘it’s not enough!’ and ‘we'll get more later’ is just rank bullshit,” said one Democratic senator who requested anonymity to speak candidly. “For the foreseeable future, I think this will be the high-water mark.”

Republicans, meanwhile, said the forthcoming gun safety package is about as far as their party will go, especially considering that four of the 15 Republicans likely to back the bill will retire at the end of this Congress. Then there's the political consequences of bucking the hard-core conservative faction of their own party as well as gun-rights groups like the National Rifle Association.

Sen. Mitt Romney (R-Utah), who supports the legislation, recalled suggesting to lead negotiators that they should include raising the minimum age to purchase assault weapons in their framework. They told him it wouldn’t get 60 votes.

“I predict [Democrats] will not be able to do more because we'll barely get by with the Republicans they need to get this done,” the Utah Republican said. “So if they want to do something more than this, they’re not going to get 10” Republicans.

Members on both sides of the aisle acknowledge that the dynamics surrounding the previously elusive deal on guns changed after a gunman killed 19 children and two teachers in Uvalde at the end of May. Republicans saw Democrats as more willing to meet them in the middle on certain policy areas, like background checks. Democrats, meanwhile, saw a shift in some GOP senators' openness to gun safety legislation.

For Sen. Chris Murphy (D-Conn.), the lead Democratic negotiator, the bipartisan compromise indicates that more gun safety legislation could be within reach.

“My theory has always been that once Republicans voted for gun safety measures they would find out that the sky doesn’t fall,” Murphy said. “We’ll have to see how this plays out for the Republicans. I think Republicans who vote for this will find a lot of new support back home that they didn’t previously count on, and I think they will find that the groups who were against this can’t really do much damage.”

Additionally, the effectiveness of the bipartisan gun safety package could heavily influence the likelihood of subsequent legislation. The bill provides grants for states to implement so-called red flag laws or other crisis intervention programs and closes what's known as the “boyfriend loophole” by broadening firearm restrictions for domestic abusers. In addition, the legislation provides new spending for mental health and school security.

Republicans who support the legislation dismissed Democratic suggestions that it’s a first step in a more lengthy series of gun proposals, a line that tends to exacerbate fears among GOP base voters who worry any restrictions on gun ownership will become a slippery slope.

“They shouldn’t say that,” said Sen. Joni Ernst (R-Iowa), who voted to advance the package. “Because this is the effort that is going to get over the finish line. … All of these things are steps in the right direction. So let’s get it into place … and let’s see the results.”

The Senate’s expected passage of the bipartisan gun safety package comes after a series of failed attempts to curb gun violence. Most Republicans blocked a 2013 bill to expand background checks after the Sandy Hook school shooting. Negotiations in 2019 after back-to-back shootings in El Paso, Texas and Dayton, Ohio, fell apart as former President Donald Trump lost interest amid the House impeachment inquiry. The Senate did, in 2018, pass narrow legislation to improve reporting from federal agencies and states to the National Instant Criminal Background Check System.

That bill was written by Murphy and Sen. John Cornyn (R-Texas), the lead negotiators on this year’s gun safety package.

“We've tried to include in this everything that we could think of that might possibly have bipartisan support," Cornyn said, describing how they approached negotiations this time around.

Cornyn didn’t rule out the possibility of revisiting the issue if circumstances require it. And senators in both parties suggested that additional congressional action will likely depend on the circumstances surrounding future tragedies.

That would require defying the political odds for a second time. So when will Congress act again on guns?

Senate Majority Whip Dick Durbin (D-Ill.) put it this way: “After waiting 30 years, I’m not ready to say.”

Jeffrey Clark gets his moment in the spotlight Thursday in front of the January 6 committee.

For a brief moment in early January 2021, it looked like Jeffrey Clark’s moment in the sun had arrived. He was poised to become a major player in Washington.

All he needed to do was successfully convince then-President Donald Trump to install him as acting attorney general, then demand that key swing states won by Joe Biden send a separate slate of pro-Trump electors to Congress, thus overturning Biden’s Electoral College win.

Up to that point, Clark was, in the eyes of true Washington insiders, a schnook, a comparative nobody.

It wasn’t that he was unaccomplished. Clark had a solid resume as a graduate of Harvard and Georgetown Law, and spent over a decade as a partner at the law firm of Kirkland & Ellis. He had even been Senate-confirmed. In 2018, Trump nominated Clark to be assistant attorney general for the Environment and Natural Resources Division at the Department of Justice. He was confirmed on a near party-line vote, with opposition due to the fact that Clark, who represented BP in his private practice, was a climate science skeptic. Clark was exactly the type of smart guy with a ceiling that makes up the upper-middle class of Washington policymakers.

But Washington law firms and Nationals Park box seats are jam-packed with unobtrusive Republicans who represent the fossil fuel industry. There are fewer who sought to actively overturn a democratic election and vied to be the hatchet man for an outgoing president determined to stay in power.

The latter part of Clark’s resume is why this particular former bureaucrat will get a different sort of moment in the glaring spotlight on Thursday, when those activities will be a focus of the select committee investigating the January 6, 2021, attack on the Capitol.

Clark himself won’t be on the witness stand. He appeared before the committee in February, only when he was facing a possible contempt referral after refusing to answer questions at a prior deposition. In that February appearance, he invoked his Fifth Amendment right against self-incrimination over 100 times.

Much of what we know about Clark’s actions comes from a deposition from his former colleague Richard Donoghue, who was also acting assistant attorney general. Clark first approached his boss, acting Attorney General Jeffrey Rosen, in late December 2020. Clark reached out to Rosen on December 28 for permission to get a briefing on whether China could control Dominion voting machines via smart thermostat and a draft letter for the Department of Justice to send to key Georgia officials asking them to block certification of the state’s election results. This letter was a model, which, if approved, could be sent to other key states won by Biden as well. Rosen rebuffed him.

However, Clark then went around Rosen, directly to Trump. The Justice Department official had been connected to the then-president by Rep. Scott Perry (R-PA), the head of the hard-right Freedom Caucus and one of Trump’s most ardent supporters on Capitol Hill.

In a dramatic Oval Office meeting featuring Trump, Clark, and top lawyers from the Justice Department and the White House counsel’s office, Clark urged the president to give him his moment in the sun.

“History is calling. This is our opportunity. We can get this done,” Clark said, according to the deposition by Donoghue. Everyone else in the meeting is said to have pushed back against Clark’s attempt to take control of the DOJ. Donoghue and Steve Engel, another top DOJ official appointed by Trump, said they would resign if Trump replaced Rosen with Clark.

Donoghue, by his own account, went on to threaten the specter of mass resignations if Trump went through with his plot, saying, “And we’re not the only ones. You should understand that your entire department leadership will resign. ... You could have mass resignations amongst your US attorneys. And then it will trickle down from there; you could have resignations across the Department. And what happens if, within 48 hours, we have hundreds of resignations from your Justice Department because of your actions?”

This was echoed by White House counsel Pat Cipollone, who, according to Donoghue, said at one point in the meeting, “Well, I’m not going to stand for this, I’m not going to be here if it happens either.”

Donoghue said he then denigrated Clark’s legal abilities, telling Trump, “Jeff Clark is not even competent to serve as the attorney general.” After Clark protested and insisted that he was up for the task, Donoghue says he essentially told him to go home and get his shine box.

“That’s right,” retorted Donoghue. “You’re an environmental lawyer. How about you go back to your office, and we’ll call you when there’s an oil spill.”

Eventually, Trump blinked. Although he made complaints to Rosen and Donoghue like “You two haven’t done anything” and “Everyone says I should fire you,” he didn’t follow through on his plan to elevate Clark. He announced at the end of the meeting that he was going to let it go. Clark’s moment had passed.

Since leaving the Justice Department, Clark has joined a Trumpist think tank, the Center for Renewing America. However, while he is not likely to wield power anytime soon, he will be the center of attention in Thursday’s hearings. Rosen, Donoghue, and Engel will all testify about Trump’s efforts to weaponize the DOJ to overturn the 2020 election.

There are still questions about Clark’s involvement in the effort to overturn the election, like who else the environmental lawyer was working with and the nature of his ties to Perry, that remain unresolved. Multiple outlets reported that federal investigators searched Clark’s home on Thursday, only hours before the hearing was scheduled to begin.

As one select committee aide told reporters on Wednesday, “Jeffrey Clark is certainly an important figure when it comes to the pressure campaign against the Department of Justice.”

But despite his best efforts, Clark is unlikely to be an important figure in history. Instead, it appears he will be a bit character who made one bumbling attempt toward relevance, and failed.

Having already confirmed its intent to force people who become pregnant to bear unwanted children under the penalty of criminal laws and state-sanctioned vigilante harassment, the United States Supreme Court is now poised to ensure those and all future generations continue to endure the harsh miseries of uncontrolled climate change. As reported by Coral Davenport, writing for the New York Times, in the coming days the court will take a brief respite from pretending to ferret out the embarrassing leak of its forthcoming Dobbs v. Jackson Women’s Health opinion overruling Roe v. Wade (after nearly two months of internal investigations, it is becoming increasingly implausible to believe his or her identity remains unknown), to hand down its decision in the case of West Virginia v. EPA.

Representing the long-awaited payback by the court’s conservative majority to the magnates and CEOs of the fossil fuel industry responsible for their placement on the court, that decision may very well cripple the ability of the Environmental Protection Agency (EPA) to perform its function of protecting the American people from environmental pollution, and in particular to slow, stop, or reverse the catastrophic effects of global warming.

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.

As Davenport notes, the ramifications of this particular pending decision are literally catastrophic in scope.

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.

To properly appreciate the “coordinated, multiyear” strategy of which the West Virginia v. EPA matter case (actually four cases consolidated together) is an example, it is necessary to understand how the current Supreme Court's monolithic conservative majority has been fashioned, and by whom. The organization responsible for selecting almost every judicial nominee recommended or confirmed by the Republican Party, including the 241 federal judges confirmed during the Trump administration, is the Federalist Society, a sprawling and enormously influential organization whose mission (in addition to its practical function of normalizing and propagating an alternative, corporate-friendly conservative “jurisprudence”) is to remake the judiciary into a tool to benefit the business interests of a small class of extremely wealthy donors, predominantly (but not entirely) from the fossil fuel industry.

The products of this effort—Justices Roberts, Gorsuch, Kavanaugh, Alito, and Barrett—now ensconced in the court along with Thomas, a fellow right-wing justice from a prior era, are now in a position to rule on the issue most dear to their patrons’ hearts and desires: the ability of the U.S. government to regulate the enormous toxic chemical, carbon dioxide, and other pollutant emissions caused by the drilling, mining, refining, and use of their products.

That is why, as Davenport reports, there are now multiple cases brought by Republican attorneys general—each case specifically designed to promote radical and new interpretations of existing law—winding their way through the federal system, with the end goal of being decided by the Supreme Court’s conservative majority (a majority that is now—as the leaked Dobbs opinion illustrates—wholly unaccountable to existing precedent). As Davenport notes: “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.”

In other words, many of these cases, shepherded under the guidance of the fossil fuel industry, do not simply challenge environmental regulations, but deliberately challenge the ability of the executive branch (through its federal agencies) to regulate them at all. As the Trump administration amply demonstrated, when Republicans control the executive branch they address this by altering the missions of the agencies themselves (by staffing them with industry loyalists and weakening existing rules through administrative fiat). Democratic administrations, on the other hand, present a problem for such industries because Democrats actively seek to enforce environmental protection on behalf of the American people. The ultimate intent by the fossil fuel lobby, therefore, is to permanently curtail the existing power of federal agencies to impose regulations, specifically ones that target pollution and thereby cut into industry profits.

The biggest target of these lawsuits are actions by the EPA to combat climate change, such as regulating tailpipe emissions, requiring economic analyses by industry of adverse climatic effects of their industries and requiring the transition to renewable or non-CO2 producing energy sources. So fossil fuel conglomerates, with their ready stable of highly paid “environmental” lawyers, have road-tested an argument that attacks established precedent deferring to an individual agency’s judgment as to what its own regulations mean as “overreach,” and seeks to redefine the relationship between the very branches of our government in accordance with manufactured conservative dogma that holds such regulation should be the province not of the executive, but of Congress.

As Davenport notes:

The plaintiffs want to hem in what they call the administrative state, the E.P.A. and other federal agencies that set rules and regulations that affect the American economy. That should be the role of Congress, which is more accountable to voters, said Jeff Landry, the Louisiana attorney general and one of the leaders of the Republican group bringing the lawsuits.

By maligning the function of the EPA as a the tool of a sinister “administrative state,” these cases—brought by Republican attorneys general who, as Davenport’s article clearly shows, owe their political positions to “dark money” campaigns largely funded by Koch industries and other fossil fuel companies—speciously urge that Congress and not the EPA should be responsible for such complex regulations. But the prospect of tasking members of Congress to actually develop and promulgate intricate rules governing the regulation of chemicals and pollutants, or carbon dioxide and carbon emission technology, for example, is not simply laughable but preposterous.

As Davenport explains, “for decades [Congress] has delegated authority to the agencies because it lacks the expertise possessed by the specialists who write complicated rules and regulations and who can respond quickly to changing science, particularly when Capitol Hill is gridlocked.” And assuming that congressmen and women had the knowledge, time, and wherewithal to craft such regulations—which they emphatically do not—one only has to imagine how a Marjorie Taylor Greene or Paul Gosar would respond to such a task, if they would respond to it at all.

As outlined by senior correspondent and legal analyst Ian Milhiser, writing for Vox, the cases currently before the court address the EPA’s authority to interpret and implement the Clean Air Act in conjunction with the Obama administration’s Clean Power Plan, now a completely moot exercise since that plan was never put into place, having been stayed prior to its implementation by industry legal challenges. The court could have refused to hear the cases on that ground alone, but a newly empowered conservative majority now apparently sees its chance to permanently alter the very relationship between the executive, traditionally responsible for implementation of policies that ensure broad-based acts of Congress are enforced, and the rest of the federal government.

As Milhiser explains, in addition to arguing that the Clean Air Act itself should be weakened, and in addition to challenging the EPA’s constitutional authority to implement it, the petitioners in the cases now before the court also argue in essence that the entire phalanx of federal agencies addressing environmental protection, workplace protection, even access to birth control and health care should be curtailed. If the court accepts their arguments at face value, as Milhiser explains, the hope of any serious regulation against environmental pollution—let alone the climatic effects of unchecked greenhouse gas emissions—will become a distant memory: “the United States will be a very different place if the Court’s right flank gets its way in West Virginia.”

Milhiser explains:

In the worst-case scenario for the Biden administration, the West Virginia case could make President Joe Biden the weakest president of the United States in over 80 years, and it could give a Supreme Court dominated by Republican appointees a veto power over huge swaths of federal policy.

The core argument by conservatives in these cases is that the EPA has no right to determine what the “best type of emission system” is under the Clean Air Act to reduce the greenhouse gases (predominantly CO2) that indisputably contribute to global warming and climate change. The Obama administration's Clean Power Plan required polluting industries such as coal-fired power plants to move away from technologies that failed to accomplish the goal of reducing emissions. The Trump administration attempted to replace the Clean Power Plan with a drastically weakened regulation called the “Affordable Clean Energy Rule,” which may have actually resulted in increased carbon emissions; that rule was struck down by a federal appeals court, setting up the challenge exemplified by the West Virginia v. EPA consolidated cases, now before the court.

These cases, all brought by Republican attorneys general doing the bidding of the fossil fuel industry, argue that the Clean Power Plan should be stricken in its entirety, even though there is no rule or regulation currently in place from it. And that is where the significance of the court’s decision to even hear this case lies.

Under the Clean Air Act, and under most pieces of wide-ranging litigation passed by Congress, the power to implement and enforce rules necessary to satisfy the provisions of the act in question is necessarily delegated to the executive, through its federal agencies. The Supreme Court in a landmark case called Chevron v. NRDC, for example, unanimously affirmed the general rule that deference should be given to an agency’s construction of a statute it is tasked to administer, explicitly recognizing the need for Congress to delegate such complex matters.

But this is a far different court, one seemingly bent on deconstructing for its benefactors and backers any legal principle that inures to the benefit of the American people as opposed to corporate interests, one willing and even eager to employ drastic and reactionary legal theories to achieve that end.

The reactionaries appointed to the court by Donald Trump have, unsurprisingly, signaled their receptiveness to such theories, which is one of the reasons these cases are now finding a hearing. Just as they were undeterred by prior precedent as evidenced in the leaked Dobbs opinion, the court's conservative wing sees itself as accountable to no one but their donor base. Justice Neil Gorsuch, for example, has strongly come out in favor of a principle called the "non-delegability" doctrine—a legal theory that hadn't reared its head since the time of the New Deal—that suddenly has become viable again in the service of a court that routinely places business interests over those of ordinary American citizens.

As Milhiser explains, Gorsuch's formulation would transfer power from Congress and executive to the courts—and not coincidentally, to himself and his conservative colleagues—to explain what a vaguely or ambiguously written law actually means. As Milhiser notes, Justice Clarence Thomas has gone even further, suggesting that no delegation by Congress is permissible, and that an agency simply cannot issue binding rules, an extreme and rather monstrous view that would automatically render the vast majority of consumer, worker safety, and environmental protection laws invalid.

It should be emphasized that none of these reactionary approaches are the product of precedent, which is supposed to be the guiding principle for this court and all the lower courts. Rather, they are all the products of a deliberately distorted and carefully contrived “jurisprudence” whose notions and goals are purely political in their origins.

It's not clear what route the court will choose, and it won't be clear until the opinion is issued. As Davenport's article observes, hamstringing or eliminating the ability of the EPA to regulate toxic and carbon emissions spells doom for the climate, and condemns us all to live with the consequences. But if the draft Dobbs opinion is any indicator, this court does not care one whit about the human consequences of its actions. It is a court entirely driven by ideology, and if that means the planet and the human race must suffer horribly as a consequence, that is a sacrifice its members are quite willing to make.

When Senate Minority Leader Mitch McConnell was confronted over his support for the bipartisan bill addressing elements of gun violence, he defended his Second Amendment record, telling reporters: “I spent my career supporting, defending and expanding” gun rights, and stressing that he had “spent years” confirming conservative judges. McConnell made that statement in full confidence that the Supreme Court he packed with three illegitimate justices would do precisely what it did: ensure that sensible gun regulations anywhere would be eliminated.

The court decided the New York State Rifle & Pistol Association Inc. v. Bruen case Thursday in 6-3 decision written by Justice Clarence Thomas, striking down that state’s 108-year-old provision requiring anyone who wants to get a license to carry a concealed handgun outside the home to show “proper cause” before being granted a permit. The Court’s extremists, Thomas writes, find that New York's strict limits on the concealed carry of firearms in public violates the Second Amendment. It essentially throws out the previous restrictions the Court upheld in it’s last big gun control case, the 2008 District of Columbia v. Heller.

In his concurrence, Alito essentially rubbed salt in the wound, snidely asking “And how does the dissent account for the fact that one of the mass shootings near the top of its list took place in Buffalo? The New York law at issue in this case obviously did not stop that perpetrator.” 

Justice Stephen Breyer provides a lengthy dissent, including a comprehensive retelling of the mass deaths in an age when weapons of war are widely available to all citizens. “The primary difference between the Court's view and mine is that I believe the [Second] Amendment allows States to take account of the serious problems posed by gun violence that I have just described,” he writes. “I fear that the Court's interpretation ignores these significant dangers and leaves States without the ability to address them.”

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The decision could mean as many as 20,000 more guns on the streets in New York City. The city is working to determine how to craft new rules to meet this outcome, and how to designate certain areas, including public transportation, as “sensitive places” to try to bar firearms.

“It’s gonna be a complete disaster and shows how anti-urban the Supreme Court is at foundation,” Metropolitan Transportation Authority board member Norman Brown predicted. “This is both a practical fear and a marketing fear. How do you market the train if you are assuming the guy with the heavy coat has a gun under his?” Brown said.

That’s exactly the scenario Justice Samuel Alito raised in oral arguments on the case. But he was imagining a subway system teeming with armed criminals against whom the rest of the population was defenseless. “All these people with illegal guns: They’re on the subway, walking around the streets, but ordinary, hard-working, law-abiding people, no,” Alito told New York State Solicitor General Barbara Underwood. “They can’t be armed.” The reality will be closer to Brown’s supposition: Those ordinary, law-abiding people are going to be worried about being surrounded by guns.

The decision also sets up challenges to regulations in every state that has them, including immediate those in six other states: California, New Jersey, Maryland, Hawaii, and Massachusetts. In fact, the decision is so broad that the concealed carry restrictions that protect some 83 million people are going to be wiped out.

“How the court interprets the Second Amendment is far from an abstract exercise,” Eric Tirschwell of Everytown for Gun Safety, an advocacy group, told The Washington Post. “If the court forces New York to allow more people to carry guns in public, the result will be more people shot and more people killed, and that’s what the evidence and social science tells you.”

A belligerent gun rights community is there to make sure that other blue states are forced to buckle and loosen permit rules. “If they don’t do that,” said Matthew Larosiere, with the Firearms Policy Coalition, “we’ll certainly be suing them.” He foresees the states trying to preempt those suits. “Perhaps there will be a state or two on the West Coast that doesn’t want to do this and we will insist that they be dragged to court,” he said. “That’s something we’d rather avoid as it’s better to have people’s rights respected.”

Which sounds an awful lot like a threat, one that has the potential to rile up a lot of gun owners in these states who are feeling increasingly emboldened.

Media Matters for America reported last week that a right-wing commentator who is a frequent guest on the Fox News propaganda station said that authorities should take children from pro-LGBTQ parents. Candace Owens compared drag queen story hours to “child abuse,” saying parents who have no issue with drag performers “should have their children taken away.”

It’s not a one-off remark. Media Matters says that more right-wing voices are openly supporting this state kidnapping as part of an overall anti-LGBTQ strategy, as well as supporting the arrests of parents. “On The Faulkner Focus, Fox News Radio host Jimmy Failla claimed,’There was a time in this country of just a little more decency, where if someone even voiced the idea of taking your kid to a drag show, they would be arrested,’” Media Matters said.

RELATED STORY: Fox News marks start of LGBTQ Pride Month by attacking trans people across multiple shows

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“Right-wing podcaster Steven Crowder claimed that progressives are opening the door to parents having their kids taken away if they don’t help the kids transition,” Media Matters continued. “’No one complained when you did it [Drag Queen Story Hour] at your private gay bars, no. But when it's at a public library with children, all of a sudden that’s where you get people I guess guilty of hate speech,’ he added.” Crowder has previously engaged in targeted homophobic (and racist) attacks, and in December was reported to be one strike away from a permanent YouTube ban after violating hate speech policy. 

“Washington Times columnist Tim Young said parents taking their kids to drag shows ‘deserve no rights in this country’ and ‘at the very least’ should ‘be in jail,’” the report continued.

“Many right-wing outlets have called drag queen storytimes inappropriate or referred to them as indoctrination or sexualization of kids,” Media Matters said. Why could it be a major a mistake to ignore this hateful speech, or just dismiss it as noise from loudmouths? Because “[s]ome right-wing legislators are now echoing this rhetoric, claiming they will move to ban kids from attending drag performances,” the report continued.

As Daily Kos’ Hunter noted earlier this week, they are openly, shamelessly, and with bloodlust in their eyes “attempting to stoke fascist violence” against LGBTQ people for just existing.

“These various threats of violence follow a mass murder in Buffalo, New York, by a far-right terrorist who also ranted against ‘pedophiles and groomers’ targeting children—mirroring the precise new rhetoric promoted by Republican lawmakers and conservative media figures,” he continued. Last fall, top House Republican Elise Stefanik shamelessly pushed the racist “great replacement” conspiracy theory promoted by white supremacist and Fox personality Tucker Carlson, and that was then touted by the Buffalo murderer. It’s not hard to see how this rhetoric could be deadly for LGBTQ communities.

Of course, Fox News and these personalities know exactly what they’re doing. That’s why rather than focusing on a hearing on the Jan. 6 coup attempt—a violent attack against the federal government that was physically carried out on the ground by white seditionists—the Fox News propaganda outlet spent more time attacking LGBTQ people. They’d rather attack asylum-seekers and undocumented children’s education and even migrant babies’ formula than the real danger facing our nation, which is the white extremists they’ve riled up.

“From 7 p.m. ET through midnight—covering the shows of Jesse Watters, Tucker Carlson, Sean Hannity, Laura Ingraham, and Greg Gutfeld—Fox aired just over 10 minutes of coverage of the hearing,” Media Matters said (emphasis by Media Matters). “By contrast, the network aired nearly 19 minutes of coverage of trans people and drag queens.” This is continues to head in an alarmingly terrifying direction.

RELATED STORIES:  

Conservatives are attempting to stoke fascist violence against trans Americans, and it's working

After attacking trans people on first day of Pride Month, Fox News shamelessly airs pro-LGBTQ promo

A Republican senator is thinking about blowing up a bipartisan deal to extend school meals funding because of a Biden administration policy banning discrimination against LGBTQ students who participate in lunch programs that receive the money.

Democratic leaders are rushing to pass the legislation and get it to President Joe Biden’s desk before current funding runs out June 30, triggering a hunger cliff for millions of children. Senate Republican leaders, who blocked previous attempts at a year-long extension of the funds, haven’t made any threats to tank the bill this time around, according to three people involved in the talks. But any one senator can object and block the expedited effort, requiring a recorded floor vote and eating up precious time.

After the $3 billion deal to extend the pandemic-era program was unveiled Tuesday, Sen. Roger Marshall (R-Kan.) said in an interview he is “contemplating” objecting to the measure because of new guidance from the Agriculture Department banning LGBTQ discrimination in any program that receives federal nutrition money, which includes most school lunch programs.

Marshall was among a handful of Senate Republicans who sent a letter to the Government Accountability Office last week objecting to the USDA nutrition guidance, which has also prompted a backlash from conservative media and key national Republicans. Likely 2024 presidential contender and Florida Gov. Ron DeSantis argued the Biden administration was “trying to deny school lunch programs for states that don't do transgender ideology in the schools.”

Republicans are particularly concerned with language in the USDA guidance that says programs that receive federal nutrition money need to state their policies for combating anti-LGBTQ discrimination.

Marshall said in the interview he had not decided about whether to go through with the objection. But he claimed the administration was trying “to use the school lunch issue to gain leverage over [schools’ broader LGBTQ policies].”

“I'm just afraid that schools in Kansas won't have school lunches because of this administration's radical view on transgender issues,” Marshall said. “And I'm afraid that they're going to raid the school lunch program over that issue.”

The USDA guidance, however, is only aimed at programs that receive federal nutrition money, not other aspects of school policy that may affect LGBTQ students. A USDA official emphasized that the administration wouldn’t pull funding from a school lunch program just because the state has restrictive laws around sports or bathroom access for transgender kids, nor because a school lacks an LGBTQ policy. Rather, individuals could only file complaints if they’ve been discriminated against by the specific school lunch program based on gender identity — for example, if they were denied food because they were transgender.

A handful of other Republican senators also have yet to sign off on holds over allowing the school meals funding deal to be the expedited measure, according to three Republican Senate aides, though not over the LGBTQ guidance. That list includes Sens. Mike Braun of Indiana and Rand Paul of Kentucky. Paul frequently holds up efforts to expedite funding bills.

A spokesperson for Paul said his office is still reviewing the bill, but wouldn’t say if he ultimately plans to object. Braun wanted to make sure he had time to read the bill but likely doesn’t have any major issues with the text, according to his spokesperson.

The top Republican shepherding the school meals funding, Sen. John Boozman of Arkansas, said he hadn’t talked with any Republican who was committed to objecting to the measure, but said he would look into Marshall’s concerns. Asked if he was angling for something from the administration in return for allowing the measure to pass, Marshall replied: “No. I don’t have any deal cooking.”

“I don’t know if we’ll have any objections or not,” Boozman said in an interview. “But I think that whatever it is, it’s things that we can work through and just explain what we’re trying to do.”

Anti-hunger advocates say the school meal funding held off the worst of the expected rise in childhood food insecurity during the Covid-19 pandemic. And they warn that the loss of the funding beginning in July would abruptly increase hunger for millions of children.

An anonymous reader quotes a report from TechCrunch: At its annual re:Mars conference today in Las Vegas, Amazon's Senior Vice President and Head Scientist for Alexa, Rohit Prasad, announced a spate of new and upcoming features for the company's smart assistant. The most head turning of the bunch was a potential new feature that can synthesize short audio clips into longer speech. In the scenario presented at the event, the voice of a deceased loved one (a grandmother, in this case), is used to read a grandson a bedtime story. Prasad notes that, using the new technology, the company is able to accomplish some very impressive audio output, using just one minute of speech. Details are scant, at the moment. There's no timeline or further specifics, but -- at very least -- this is the kind of news that will likely invite all manner of scrutiny over potential applications beyond something as banal or even heartwarming as reading a child The Wizard of Oz.

Read more of this story at Slashdot.

In an absolutely nightmarish turn of events, Republicans in the House and the Senate are introducing legislation to allow adults who received gender-affirming care as youths to potentially sue those physicians later in life. The legislation includes a 30-year statute of limitations and would apply to care given after the bill goes into effect. The bill, which is expected to be formally introduced on Wednesday, is misleadingly titled the “Protecting Minors from Medical Malpractice Act” and is being introduced in the Senate by Tom Cotton of Arkansas and in the House by Rep. Jim Banks of Indiana and Doug LaMalfa of California. 

This inflammatory legislation also seeks to ban federal health funds from going to states that allow health care workers to perform gender-affirming health care. Notably, it permits patients or their legal guardians to sue those physicians after the patient turns 18. Patients would be able to sue for declaratory or injunctive relief in addition to attorney fees and compensatory damages. 

The end goal? Continue to demonize vulnerable trans folks and scare physicians away from providing this safe, age-appropriate, and necessary health care by criminalizing it. It’s evil, it’s hateful, and we should all be ashamed this is even a conversation our nation is humoring.

RELATED: Arizona drag queen calls out Republican candidate for governor's hypocrisy—with plenty of receipts

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The bill defines “gender-transition” procedures as social affirmation (like pronouns and names) and hormonal therapies and puberty blockers. It defines “biological sex” on the basis of “genetic classification” via sex chromosomes, naturally occurring sex hormones, and internal and external genitalia present at birth. It specifically notes that this does not include the “subjective sense” of identifying the person in question has for themselves. 

Terrible.

"Radical gender-changing ideologies ignore scientific evidence and put children in harm's way," LaMalfa said in part, per Newsmax (of course), claiming that “every time” a physician offers gender-affirming care to a minor, they’re “potentially” sterilizing them “for life” and violating their oath to do no harm.

The actual statement mindfully uses the word “child” instead of youth or even minor, and uses outdated phrasing like “gender-transitioning” instead of “gender-affirming.” I would love to not highlight these phrasings and framings, but I think it’s valuable in terms of educating people on common conservative buzzwords.

LaMalfa went on to describe gender-affirming care as “experimental procedures” and frame the federal government as trying to “force” physicians to offer this care. Again, buzzwords and hysteria.

Unsurprisingly, Cotton took on a similar approach when speaking to Fox News (again, of course) by incorrectly declaring that gender-affirming care isn’t “safe or appropriate” for youth and describing physicians who offer this life-saving care as “radical” doctors who perform “dangerous” and “experimental” procedures. Cotton also suggests all of this care is “sterilizing” and that these procedures are being performed on “young kids.”

No one, including children, is being forced or pressured into surgeries. Gender-affirming care for youth often involves using the correct name and pronouns, supporting gender expression in appearance and clothing, and sometimes hormonal therapy and puberty blockers. It just depends. In many states, people under 18 cannot receive gender-affirming surgeries at all.

At the end of the day, these are personal medical decisions that should happen between the patient and their medical providers, not the rest of us. There is no right or wrong way to be trans and there is no right or wrong way to transition, but everyone should have the basic dignity of accessing safe and age-appropriate health care with the respect and help of their physician.

Joe Sudbay returns to geek out with Kerry Eleveld and Cara Zelaya on the Democratic Party must do, what they are doing, and what they aren’t doing on Daily Kos' The Brief podcast

Sadly, this bill is not an isolated example of transphobia and queerphobia. We’ve seen conservatives take this line of attack across numerous states in the past few years, including efforts to make it a felony for physicians to provide gender-affirming care to trans and nonbinary youth. A ban on gender-affirming care for trans youth in Alabama has already gone into effect.

We know gender-affirming care is life-saving care. We know acceptance can literally save lives. We know trans youth know who they are. 

Sign the petition: Transgender children deserve all our love, support, and gender-affirming care

Appearing before the Jan. 6 committee Tuesday, Wandrea "Shaye" Moss and her mother Ruby Freeman gave some of the most powerful testimony to date. The two detailed the terror inflicted on them by a racist smear campaign led by former President Donald Trump and his top campaign attorney, Rudy Giuliani baselessly alleging wrongdoing by Fulton County election workers during the 2020 election.

The two Georgia election workers were driven from their homes, threatened on social media, and left feeling afraid to go out into public. Even Moss’ grandmother was caught up in the fray, menaced by Trump supporters and the web of lies created by Trump and Giuliani.

“It was just a lot of horrible things there,” Moss told the House select committee, adding that many of the social media comments directed at the women “were racist” and “hateful.”

RELATED STORY: Video shows Kanye’s publicist pressing Georgia election worker to admit to fake voter fraud claims

Moss reported “a lot of threats wishing death upon me, telling me I’ll be in jail with my mother and saying things like, ‘Be glad it’s 2020 and not 1920,’” Moss said.

On an infamous call with Georgia Secretary of State Brad Raffensperger, Trump personally attacked Moss and Freeman, mentioning Freeman’s name in particular 18 times and calling her a “professional vote scammer and hustler,” recorded audio revealed during the hearing.

Raffensperger, who’s been lauded as a hero, also testified Tuesday about that call with Trump, where the former president demanded that he “find” 11,780 votes.

But before we get too appreciative of the Republican secretary of state, let’s remember that he didn’t have any qualms about supporting a voter suppression bill in Georgia (SB 202) that attacks absentee voting and criminalizes Georgians for handing out water or food to residents waiting in line to vote.

CNN’s Jake Tapper compared Moss and Freeman’s story to that of Annie Lee Moss, an activist, community organizer, and government employee who became famous in 1954 after the late Sen. Joseph McCarthy and the late J. Edgar Hoover began to target and smear her with accusations of being a Soviet spy.

One thing that didn’t come up in Tuesday’s testimony was that in addition to the more than 850 texts, calls, and visits to her home from outraged Trump supporters, according to reporting by Reuters, Kanye West’s publicist, Trevian Kutti, paid a visit to Freeman on Jan. 4 to deliver another message: She could confess to the alleged voter fraud she was accused of, or she’d be targeted with more visits to her home and she could go to jail.

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As Daily Kos reported in December 2021, Kutti did not tell Freeman that she worked for the hip-hop billionaire and longtime Trump supporter; she only said she was sent by a “high-profile individual.” Kutti reportedly told Freeman she “was in danger” and had “48 hours” until “unknown subjects” would turn up at her home.

Over the next hour, Reuters reported, Kutti and a man on a phone Ruby Freeman initially identified as “Harrison Ford”—actually named Harrison Floyd, who Kutti says is a “Black crisis manager”—attempted to convince Freeman to incriminate herself in committing voter fraud in the 2020 election, even offering her an attorney, Freeman says.

“If you don't tell everything,” Freeman remembers Kutti saying, “you're going to jail.”

Growing suspicious, Freeman says she jumped up from her chair and told Kutti: “The devil is a liar,” before calling for an officer.

As Freeman told the House select committee Tuesday, an FBI agent came to her home and advised her to leave her home of 20 years in the days before the Jan. 6 insurrection.

The most compelling and dramatic testimony came when Rep. Adam B. Schiff asked Moss about the other election workers who were at the State Farm Arena during the 2020 elections. Schiff asked whether any of them remained in their positions as election workers.

“There is no permanent election worker or supervisor in that video that’s still there,” she replied.

And that is the outcome of the fake Big Lie that Trump, Giuliani, and all of their allies are responsible for. The biggest voter suppression campaign of all is making people like Moss and Freeman afraid to play their parts in the nation’s most essential aspect of democracy: our elections.

Without a doubt, history will remember Moss and Freeman as American heroes who simply wanted to do their jobs but were repaid for it by a vindictive, racist, power-hungry former president desperate to stay in office.

And for those of you who’re curious as to whether Moss and Freeman have sued: they have. The lawsuit was brought against Giuliani in May 2022. 

“Defendant Giuliani’s character assassination of Ms. Freeman and Ms. Moss was deliberate,” the suit reads. 

“The lies about Plaintiffs have had prolonged and tragic consequences for their lives and well-being. As a result of Defendant Giuliani’s defamatory campaign, Ms. Freeman and Ms.Moss were subjected to an immediate onslaught of violent and racist threats and harassment, and such threats and harassment continue to appear online to this day. Their personal and professional reputations have been destroyed. From the period after Defendant Giuliani started broadcasting lies about them to the present, Ms. Freeman and Ms. Moss have feared for their physical safety and have suffered a devastating emotional toll,” according to the suit. 

Summer started with an oppressive heat wave. Get used to it.

Summer only just started, but much of the world is already experiencing brutal heat. In the last two weeks, extreme heat waves have struck many parts of the US, Europe and China, threatening lives, increasing the risk of wildfires, and testing the limits of electric grids.

In Minnesota, temperatures soaring above 100 degrees Fahrenheit buckled streets and shattered car windows earlier this week. Thousands of cattle perished in Kansas. Temperatures in France, meanwhile, reached nearly 110°F and set or tied more than 200 monthly heat records across the country.

And that was all before summer technically began — Tuesday was the summer solstice — raising concern among climate scientists that heat waves are arriving earlier as the planet warms. “It’s especially impressive (and unsettling) to see all-time heat records being set in Europe before we even get to the summer solstice,” meteorologist Bob Henson wrote on Twitter over the weekend.

The European heat wave is starting to wane. But extreme heat in the US — the deadliest weather-related phenomenon in the country — is lingering, and moving east from the Great Plains to the southeastern US. An astonishing 70 percent of the US population could see temperatures in the 90s over the next week, including residents of major cities like Atlanta, New Orleans, and Dallas. Tens of millions of American were under a heat advisory Tuesday. Looking farther out, the National Weather Service predicts a hotter than average July, August, and September — offering little hope of relief.

This isn’t normal for June, or for any part of the summer, for that matter, compared to past averages. It’s an extreme. But “normal” has become something of a useless word in meteorology — and “extreme,” something of a mundane one — as fossil fuels continue to heat up the planet. In the years to come, heat waves like these are likely to get worse, not better. So while this summer might be unbearably hot, it may be one of the coolest summers for decades to come.

Stefano Rellandini/AFP via Getty Images

Where does all this heat come from?

“Heat wave” is something of a technical term that refers to temperatures that remain much hotter than the local average for an extended period of time — at least two days, according to the National Weather Service. And typically, they begin where there’s a buildup of high pressure in the atmosphere, writes Vox’s Umair Irfan:

That creates a sinking column of air that compresses, heats up, and oftentimes dries out. The high-pressure system also pushes out cooler, fast-moving air currents and squeezes clouds away, which gives the sun an unobstructed line of sight to the ground. The ground — soil, sand, concrete, and asphalt — then bakes in the sunlight, and in the long days and short nights of summer, heat energy quickly accumulates and temperatures rise.

These high-pressure systems have helped fuel the recent heat waves in North America and Europe, Axios’s Andrew Freedman reports. And all that pressure in the atmosphere acts like a lid on a pot, trapping heat so it can’t dissipate. That’s why these heat waves are often referred to as “heat domes” — the heat is trapped under a dome of pressure.

When those domes linger, they put human lives at risk. Without access to air conditioning or cool public spaces, people — especially those with underlying health conditions who are young or elderly — are at risk of illnesses including heat stroke and heat exhaustion. In the US, more than 1,300 people die each year from extreme heat, according to some estimates. (Check out this helpful chart that details the symptoms and what to do if you have them.)

Heat waves also threaten the natural world. They can kill livestock and wild animals. Last summer, for example, a heat wave in the Pacific Northwest killed hundreds of millions of marine creatures, scientists estimated. During the recent European heat wave, water temperatures in the Mediterranean were 9°F above average.

“Heatwaves are now regularly occurring that exceed the physiological thresholds of some species,” wrote authors of a recent report by the Intergovernmental Panel on Climate Change. In other words, heat waves have become yet another threat to plants and animals, many of which are already at risk of extinction.

Summer is only getting hotter and starting sooner (in a bad way)

The world has warmed by 1.1°C (roughly 2°F) since the dawn of the Industrial Revolution. And while that increase might sound modest, it makes extremes much more likely — just check out the graphs below.

National Weather Service/NOAA

Heat waves are becoming more common, they’re lasting longer, and the temperatures they bring are more extreme. In the 1960s, there were an average of about two heat waves per year, whereas in the most recent decade there were an average of six, according to the US Environmental Protection Agency.

Any one can be devastating. Just last month, a severe heat wave fueled by climate change struck India and Pakistan, a region home to 1.5 billion people.

What’s especially alarming, according to climate experts, is that these events are happening earlier in the year, when people, cities, and the infrastructure they depend on might not be prepared for extreme heat. “Heat waves that occur earlier in the spring or later in the fall can catch people off-guard and increase exposure to the health risks associated with heat waves,” the EPA writes. (As it gets hotter in a season, people’s bodies can physiologically adapt a bit to cope with heat, but the process takes time.)

The good news is that meteorologists can, to an extent, forecast extreme weather, and climate models are improving. The National Weather Service issued a report in May indicating that June would be hot.

The problem is that much of the world’s infrastructure, policies, and planning is based on historical averages — and it’s clear that the future won’t look like the past.

Umair Irfan contributed reporting.

In the run-up to Jan. 6, the Wisconsin Senator helped feed the Trump beast.

Senator Ron Johnson, a Wisconsin Republican, has found himself in a bit of a pickle. 

During the Jan. 6 committee’s fourth hearing on Tuesday, investigators released a series of text messages between an aide for the senator, Sean Riley, and a member of then-Vice President Mike Pence’s staff, Chris Hodgson. 

In the unveiled exchange from Jan. 6, 2021, the senator’s aide tells Hodgson just after 12:30 PM that “Johnson needs to hand something to VPOTUS” and Hodgson promptly asks what that something is. 

The Joint Session of Congress was to begin in a half-hour. Pence would not release his statement declaring that he did not have the authority to decertify slates until 1:02 PM. 

“Alternate slates of electors for [Michigan] and [Wisconsin] because archivist didn’t receive them,” Johnson’s aide wrote. 

The response from Pence’s office was succinct and left nothing to chance. 

“Do not give that to him,” Hodgson replied. 

Those texts have since whipped up a firestorm around Johnson and he seemingly only made the situation worse in the hours after the hearing by offering a series of inconsistent answers to reporters about how and why the messages were sent. 

And as these things tend to go, a new round of burning questions has now cropped up.

RELATED STORY: Witnesses help tie Trump directly to bogus elector scheme during day of intense testimony

After the hearing ended Tuesday, the lawmaker told CNN that he had “no idea” who tried to have him share the fake Trump elector slates with Pence on the morning of the insurrection. 

Select committee investigators argue those so-called “alternate slates” were a key element of the former president’s push to overturn the 2020 election results and the result of a fraudulent and likely criminal scheme carried out by Trump and a battery of his attorneys including Rudy Giuliani and Jenna Ellis.

“I was aware that we got this package and that somebody wanted us to deliver it,” Johnson said of the Trump slates. “So we reached out to Pence’s office.”

A spokesperson for Johnson, Alexa Henning, tried to put a lid on things after the hearing.

In a statement, Henning said Johnson had “no involvement in the creation of an alternate slate of electors and had no foreknowledge that it was going to be delivered to our office.” 

“This was a staff-to-staff exchange,” Henning said. “His new chief of staff contacted the Vice President’s office. The Vice President’s office said not to give it to him and we did not. There was no further action taken. End of story.”

But, as these things tend to go, that is not the end of the story. 

According to CNN, as Johnson was making his exit from the Capitol Tuesday he told reporters that “a House staffer delivered it to his office” but he didn’t know the staffer nor what office they may have worked in. 

“We didn’t know—literally don’t—it was a staff-to-staff—somebody from the House, some staff intern, you know, said we got to, to the vice president needs this or whatever,” Johnson said. “I wasn’t involved.”

He continued: “I don’t know what they said. But … somebody from the House delivered to a staff member in my office. My chief of staff called the vice president, ‘Hey we got this.’ And the vice president said, ‘Don’t deliver it and we didn’t.”

Johnson called it a “complete nonstory” repeatedly when reporters pressed further, asking him if he knew the identity of the person who sent the slates. 

During this exchange, he also pretended to be on his cellphone. 

The lawmaker also said Tuesday when he asked members of his staff who sent the package “nobody” knew. 

He told a reporter at ABC on Tuesday night, “there’s no conspiracy here.”

His answer failed to address an important detail.

Johnson’s aide told Pence’s aide that the Trump slates needed to be hand-delivered since the Archive did not receive them but court records have shown that the slates were sent well in advance. 

Trump Elector Slates Jan 6 Probe by Daily Kos on Scribd

As noted by Politico reporter Kyle Cheney, it would seem that the National Archives didn’t accept the slates as genuine. 

The attempted submission of unsanctioned elector slates so far beyond the Dec. 14 deadline is a significant piece of evidence in the investigation into the attack on the U.S. Capitol and Trump’s role in it.

States are required to certify their electoral results and deliver their slates no later than Dec. 14. 

The last-minute attempt to put forward Trump’s so-called “alternate electors,” raises serious questions about the former president’s intent leading up to Jan. 6 and the direct involvement of members of Congress in a bid to overturn the 2020 election results.

During its last two hearings, the committee highlighted at length how several of Trump’s White House attorneys and advisers warned him that the “alternate elector” gambit could be illegal.

Another text shared by the panel on Tuesday came from Mark Jefferson, the executive director of the Wisconsin GOP.

It was sent on Jan. 4, 2021, at 9:02 PM and appeared to reflect a harried Jefferson working into the night as he fielded intensifying calls in Wisconsin to have the fake slates sent to Washington.

“Freaking trump idiots want someone to fly original elector papers to the senate president. They’re gonna call one of us to tell us just what the hell is going on,” Jefferson wrote.

The “alternate elector” scheme was in the works shortly after Election Day 2020.

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Video deposition from Cassidy Hutchinson, a former aide to ex-White House chief of staff Mark Meadows, highlighted how Meadows and Trump’s attorney Rudy Giuliani met around Thanksgiving to discuss the fake elector scheme.

Andrew Hitt,  the onetime chair of the Wisconsin GOP and one of Trump’s unsanctioned electors, also testified to the committee. 

In a clip of his video deposition, Hitt said he was told that the alternate slates in his state would “only count” if Trump won one of his many lawsuits alleging widespread election fraud. 

“I was told that these would only count if a court ruled in our favor,” Hitt testified,

Trump won none of those lawsuits but this has been the standard defense from Trump’s bunk electors and from the former president’s attorneys as the investigation has unfurled: It was a contingency. 

But a contingency with no real legal merit.

Importantly, Trump electors in Wisconsin didn’t bother to include a disclaimer or text notating that their certificates would only be considered valid if there was a disputed election. 

In the pool of seven states that advanced Trump’s bunk electors, only two states, Pennsylvania and New Mexico affixed a disclaimer to their unsanctioned certificates. Trump’s alternate slates came from Wisconsin, Arizona, Georgia, New  Nevada, and Michigan as well.

Johnson did not immediately respond to a request for comment from Daily Kos on Wednesday. Jan. 6 committee chair Bennie Thompson said Tuesday that it had not yet decided whether to call Johnson forward. 

Other Republican lawmakers asked to cooperate with the probe voluntarily have refused. Subpoenas didn’t prompt a different outcome, either. 

The committee issued subpoenas to Reps. Scott Perry of Pennsylvania, Jim Jordan of Ohio, Mo Brooks of Alabama, Leader of the House GOP Kevin McCarthy, and Andy Biggs of Arizona. 

Biggs was called out by name during Tuesday’s hearing when Arizona House Speaker Russell Bowers testified under oath that Biggs called him on Jan. 6 and urged him to decertify the state’s electors at the eleventh hour. 

“I said I would not,” Bowers said. 

Court records show Meadows’ aide Cassidy Hutchinson testifying to the committee that Biggs was one of at least 10 Republicans who met with Meadows on Dec. 21 to discuss how to overturn the election. 

Also in attendance, Hutchinson said, were Reps. Matt Gaetz of Florida, Marjorie Taylor Greene of Georgia, Louie Gohmert of Texas, Paul Gosar of Arizona, Jody Hice of Georgia, Debbie Lesko of Arizona, and Scott Perry of Pennsylvania. 

Donald Trump’s final day as a political force will come eventually—with the heat death of the universe, if nothing else. Right now, Fulton County, Georgia, District Attorney Fani Willis is racing against the House Jan. 6 committee and the silent ravages of untold acres of extra crispy chicken skin—enough to upholster one of Jupiter’s smaller moons, I’ve been told—for the honor of finally muting the feral gibberish disgorging from King Derp’s yawning lie-hole. 

That said, we’ve been waiting for Trump’s ultimate defenestration for so long, it often feels like the day will never come. And considering we have a relatively short window in which to end his dangerous, antidemocratic growl movement before the thousand-year Trumpian Reich turns every last one of our brains into tomato aspic, we have to walk a fine line between hope for a Trumpless future and despair for our suddenly precarious republic.    

So with that caveat in mind, here’s one small nudge toward optimism. 

On Sunday, MSNBC’s Katie Phang invited former Watergate prosecutor Nick Akerman on her show to discuss Trump’s future—or lack thereof. And while I’ve heard enough breathless “Trump is really doomed this time” analysis to keep me jaded for the rest of this millennium at least, Akerman not only has decades of legal experience, he also worked for seven years as an assistant U.S. attorney in the Southern District of New York and, before that, as an assistant special Watergate prosecutor. And according to him, Trump’s infamous phone call to Georgia Secretary of State Brad Raffensperger, in which Trump tried to convince state election officials to gift him thousands of fake votes, is the smoking gun that could finally strip the bark off this irredeemable asshole.

Watch:

PHANG: “You mention that you guys had tapes in the Nixon-Watergate situation. We have a tape, though, right? We have that tape of Donald Trump pressuring Brad Raffensperger. In your opinion, you don’t think that that’s going to be enough?”

AKERMAN: “Oh, I think that’s enough. No, if you’re asking me which of the cases right now, which one is going to send Donald Trump to prison, that’s the case. There’s a really neat three-year felony in Georgia that Donald Trump has violated. Prosecutors love tape-recorded evidence because you can’t cross-examine it. What is significant, though, with those tapes is, is that when you put it in the context of all of the evidence that the Jan. 6 committee has uncovered. You put that together, Donald Trump has zero defense in Georgia. If I had to put my money on one prosecution that’s going to go forward here, that will send Donald Trump to jail, it’s Georgia. No question about it. The only defense he’s got there is trying to somehow pick up on some ambiguity in the tape, that he didn’t really mean what he said. But once you look at what he said, trying to get Brad Raffensperger to come up with extra votes to make him the winner in Georgia, and put that in the context of what the Jan. 6 committee has found, I think they’ve got a case beyond a reasonable doubt.”

So do I really think this is the end of Trump? Should anyone? Hell if I know. I was naive enough to think the Mueller investigation might scuttle his presidency. But Trump no longer has his top consigliere, Bill Barr, around to protect him. And he no longer has the seemingly impenetrable shield of the presidency to keep him out of stir.

But one thing is clear: This mad dog needs to be restrained one way or another, and it has to happen soon or we could be left shaking our fists at his lawless antics for another four, eight, or 80 years—assuming it’s possible to isolate his DNA for cloning before his purpling carcass is choppered to the crematory like a SeaWorld orca. 

Fingers crossed, folks. Maybe justice will prevail in the end after all. And in a world where we often have a stark choice between pessimism and optimism, I’ll lean toward the latter every time. It’s the only thing that keeps me sane.

Check out Aldous J. Pennyfarthing’s four-volume Trump-trashing compendium, including the finale, Goodbye, Asshat: 101 Farewell Letters to Donald Trump, at this link. Or, if you prefer a test drive, you can download the epilogue to Goodbye, Asshat for the low, low price of FREE.

This wasn't a game; Trump and his minions destroyed real people's lives.

Democratic Rep. Henry Cuellar has survived the toughest threat yet to his 17-year reign as South Texas political royalty, beating back a challenge from progressive attorney Jessica Cisneros after a lengthy recount of the May 24 primary vote.

Cuellar, the last House Democrat to oppose abortion rights, came into 2022 in a precarious position. He faced an FBI raid of his home just days before the March 1 primary, which ended with him being forced into the first runoff of his career. Then, the one-on-one contest with Cisneros was upended by the Supreme Court’s preparations to overturn Roe v. Wade, which put the spotlight on Cuellar’s position on abortion.

He overcame both with his win. The Associated Press called the race Tuesday after a protracted recount.

Cisneros, a former intern in Cuellar’s office making her second run against him, was backed by prominent progressives, including Rep. Alexandria Ocasio-Cortez (D-N.Y.) and Sens. Bernie Sanders (I-Vt.) and Elizabeth Warren (D-Mass.). The incumbent, a moderate Blue Dog Democrat, got backing from House Democratic leadership, including Speaker Nancy Pelosi, and a pair of big-spending super PACs.

Cuellar’s win offers a jolt to the establishment-aligned forces that have come together this primary season to back more moderate Democratic candidates and thwart progressives. The South Texas victory would have been a massive win for their adversaries on the left, who have won some other key primaries this spring, including ousting Rep. Kurt Schrader (D-Ore.), another Blue Dog Democrat.

But privately, even some Democrats not ideologically aligned with Cuellar are relieved that he prevailed, because they believe Cisneros’s support for progressive policy positions, such as a Green New Deal and Medicare for All, wouldn’t have played well in the general election in a large battleground district that relies heavily on oil and gas.

Cuellar must win again in November to keep the seat — and Republicans are targeting the district, which President Joe Biden carried by 7 points. The GOP nominee is Cassy Garcia, a former aide to Sen. Ted Cruz (R-Texas).

Garcia is one of three Latina Republicans running for South Texas districts this fall, including Rep.-elect Mayra Flores, who gave the group a boost this week by winning a special election for a vacant Democratic seat that President Joe Biden carried by 4 points in 2020. The November election will take place under new district lines, and national Democrats insisted it was a waste of effort to compete for the soon-to-disappear seat.

Cuellar still won by 19 points in 2020, even as Biden’s margins in his district shrank from the comfortable double digits advantages won by previous Democratic presidential nominees. But the rapid political shifts in South Texas have Republicans hoping they can challenge him this fall.

Cisneros tried to best Cuellar by running up the margins in the more liberal areas of the district in and around San Antonio. And the Supreme Court’s preparations to slash abortion rights added renewed urgency to the race, especially in those areas.

EMILY’s List, a pro-abortion rights group that backs female candidates, made an 11th hour TV buy of $550,000 to help boost Cisneros. By the final weeks of the race, the candidate and the group were together outspending Cuellar and his two allied super PACs on the air.

Cuellar, who said in the aftermath of the publication of the Roe draft opinion that he did not support a total ban on abortion without exceptions, claimed his views were in line with the majority of the Catholic-heavy district. He also said that he was not the target of the FBI raid reportedly linked to a federal probe of Azerbaijan-connected campaign donation.

But Cisneros gained undeniable momentum in the final weeks of the race. After coming about 1,000 votes away from besting Cuellar in the March primary, Cisneros pulled in $1.2 million from April 1 to May 4, according to reports recently filed with the Federal Election Commission. Cuellar raised just $352,000.

But the incumbent had more help overall from two super PACs, one linked to pro-Israel donors and another with ties to LinkedIn co-founder Reid Hoffman.

Powerful January 6 testimony from Georgia poll workers reveals a serious — and ongoing — threat to democracy.

Tuesday’s hearing of the House select committee probing the January 6 attack on the US Capitol ended with perhaps the single most emotional segment in the hearings to date: a mother-daughter team of former Georgia poll workers, Ruby Freeman and Shaye Moss, discussing what it was like to be singled out as part of former President Donald Trump’s conspiracy theories that the election was stolen — and that poll workers like Moss and Freeman were involved in the plot.

In doing so, they highlighted a serious and ongoing threat to American democracy.

In the weeks following the 2020 election, the Trump campaign and its allies publicly accused the two women of committing election fraud in Fulton County (home to Atlanta). Rudy Giuliani, one of Trump’s lawyers, at one point claimed that the mother and daughter — who are Black — were passing around USB sticks full of doctored votes like they were “vials of heroin or cocaine” (it was actually a ginger mint, according to Moss).

During Trump’s now-infamous call with Georgia Secretary of State Brad Raffensperger, in which Trump pressured the latter to “find” enough votes to alter the election result, he mentioned the two women 18 separate times. (Raffensperger also delivered testimony at Tuesday’s hearing.)

The result was a wave of harassment that ruined the two women’s lives. Moss testified that she received “a lot of threats, wishing death upon me — telling me that, you know, I’ll be in jail with my mother and saying things like ‘be glad it’s 2020 and not 1920.’” She went into hiding and said she gained 60 pounds from the stress. Trump supporters attacked her grandmother’s home, barging in and “exclaiming that they were coming in to make a citizens arrest.”

Freeman, for her part, used to proudly wear T-shirts with her nickname — “Lady Ruby” — on them. “Now,” she testified in a videotaped deposition, “I won’t even introduce myself by my name anymore.” She continued:

There is nowhere I feel safe. Nowhere. Do you know how it feels to have the president of the United States target you? The president of the United States is supposed to represent every American. Not to target one. But he targeted me, Lady Ruby, a small business owner, a mother, a proud American citizen, who stood up to help Fulton County run an election in the middle of the pandemic.

This testimony revealed the real damage done to human lives by lies spouted by Trump and his allies. But it also pointed to something deeper — the way that attacks on individual poll workers chip away at the very foundations of our democracy.

Civil servants across the country, from ordinary people like Moss and Freeman to officials like Raffensperger, step up to make sure our elections run lawfully and smoothly. By targeting them so personally, Trump and his anti-democratic allies are raising the costs of such civic participation — and opening the door for MAGA disciples to infiltrate our elections infrastructure in 2022 and beyond.

Undermining democracy, one poll worker at a time

While Moss and Freeman were special targets of Trump and Giuliani, they were not the only poll workers to experience vicious harassment in the last election cycle. A 2021 survey found that 17 percent of America’s local election officials experienced threats due to their jobs during the 2020 election cycle. David Becker, executive director of the Center for Election Innovation and Research, told me last year that this was very far from normal prior to 2020.

“It’s not even accurate to say [threatening election workers] was rare prior to 2020. It was so rare as to be virtually nonexistent,” he said. “This is beyond anything that we’ve ever seen.”

Sometimes, these threats were the direct result of Trump singling a poll worker out — as was the case with Freeman, Moss, and other officials like Raffensperger.

Philadelphia City Commissioner Al Schmidt, a Republican responsible for election oversight, became a lightning rod when Trump tweeted that he was someone who was “being used big time by the Fake News Media” as a cover for election fraud. He received a wave of threats; a deputy commissioner, Seth Bluestein, was subjected to antisemitic abuse. Schmidt’s wife got emails with threats such as “ALBERT RINO SCHMIDT WILL BE FATALLY SHOT” and “HEADS ON SPIKES. TREASONOUS SCHMIDTS.” The family left their home for safety reasons after the election; Schmidt has announced he will not run for reelection in 2023.

In other cases, presidential involvement wasn’t necessary to incite harassment. Trump’s conspiracy theories that the 2020 election was stolen, and that local election officials were often part of “the steal,” had created a climate in which hardcore Trump supporters felt empowered to take matters into their own hands.

In Vermont, not exactly a swing state that interested Trump, one of his supporters sent a series of threatening messages to election officials in late 2020 — warning them, among other things, that “your days are fucking numbered.”

This harassment obviously did not enable Trump to overturn the 2020 election. But it has done immense psychological harm to election workers like Moss and Freeman, who work difficult jobs for little pay. A 2020 nationwide survey of election officials conducted by the Early Voting Information Center at Reed College found that about a quarter of respondents planned to retire before the 2024 presidential election. One of the top reasons cited was “the political environment” — meaning that the politicization of their jobs and attendant threats made them want out.

When dedicated poll workers quit, it means the person’s years of expertise in specialized and technical areas vanishes. One departure, or a handful, might be manageable. Mass resignations — and an environment that dissuades the civic-minded from stepping up to fill the vacancies — can be catastrophic to election management.

That’s especially true given that Trump’s allies are working to insert their supporters into key election roles. A September 2021 ProPublica investigation documented the emergence of a “precinct strategy,” beginning with a call to action on former Trump adviser Steve Bannon’s radio show, in which Republicans have begun flooding local voting precincts with volunteers who could shape the counting process in the next election cycle. They found that thousands of Republicans had signed up for these roles since Bannon’s campaign began, with no similar surge on the Democratic side.

“Your best-case scenario [if poll workers quit en masse] is more problems at polling places and in voting,” Becker told me. “The worst-case scenario is not just if we lose it, but what happens when that experience gets replaced by hackery … more people who believe that their job is to deliver their election to the candidate that they want to see win.”

Election security analysts are already worrying about the 2022 midterms — in particular, whether the campaigns of harassment and intimidation of 2020 will be repeated. There are good reasons to think they will be, given that a majority of Republicans still believe Trump’s fictions about a fatally compromised electoral system.

There is a real chance that Moss and Freeman will not be the last poll workers to have their lives upended as part of Trump’s quest for power. That looming possibility and its chilling effects on civic-minded Americans could prove debilitating for our democracy.

The latest redistricting cycle is almost over, and we have a somewhat finalized national map of new districts to assess. In this installment of the FiveThirtyEight Politics podcast, the crew breaks down how the new map falls along partisan lines and why there are a record-low number of competitive districts. They also discuss a new poll from YouGov that asked Americans where they fall on the Dungeons & Dragons alignment chart, ranging from good to evil as well as lawful to chaotic. Unsurprisingly, not many Americans identify as evil.

Finally, the team looks at the newest polling from FiveThirtyEight’s collaboration with Ipsos, in which Americans were asked about the most important political issues leading up to the midterms. This edition focused on political polarization, crime and gun violence.

You can listen to the episode by clicking the “play” button in the audio player above or by downloading it in iTunes, the ESPN App or your favorite podcast platform. If you are new to podcasts, learn how to listen.

The FiveThirtyEight Politics podcast is recorded Mondays and Thursdays. Help new listeners discover the show by leaving us a rating and review on iTunes. Have a comment, question or suggestion for “good polling vs. bad polling”? Get in touch by email, on Twitter or in the comments.

The U.S. Supreme Court did not throw out abortion rights, gut the Clean Air Act, or curtail states’ rights to prevent gun violence in decisions issued Thursday. It didn’t do any of those things—yet—but it did something just as destructive, if not more. In a 6-3 ruling deciding Carson v. Makin, the court “continues to dismantle the wall of separation between church and state that the Framers fought to build,” as Justice Sonia Sotomayor wrote in dissent.

At question was a law in Maine preventing public funding for students attending schools that provide religious instruction. The state provides funds for families to send students to private schools in rural and sparsely populated parts of the state where school districts have opted not to run secondary schools. Those school districts have the option of sending students to other districts or to private schools, with the state picking up the tab for the latter but only—under state law and the U.S. Constitution prior to Tuesday’s ruling—if the school does not provide religious instruction. Two families sued, arguing that this was an abridgment of the First Amendment’s Free Exercise clause.

The state had argued, in part, that providing public money to religious schools would violate the First Amendment’s Establishment Clause—barring the government taking actions that favor one religion over another, or over nonreligion. Chief Justice Roberts disagreed. “[A] neutral benefit program in which public funds flow to religious organizations through the independent choices of private benefit recipients does not offend the Establishment Clause,” Roberts wrote. With that, Roberts made it clear that state or local governments can erode public education (not to mention separation of church and state) by funneling taxpayer funding to religious schools.

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Sotomayor was, again, scathing in response, writing that her colleagues had “upended constitutional doctrine.” The Court has “shift[ed] from a rule that permits States to decline to fund religious organizations to one that requires States in many circumstances to subsidize religious indoctrination with taxpayer dollars.” Thus, she wrote, “any State that values its historic antiestablishment interests more than this Court does will have to curtail the support it offers to its citizens.”

“Nothing in the Constitution requires today’s result,” Sotomayor argued. The majority opinion is “especially perverse,” she wrote, because the case involves public education. “As this Court has long recognized, the Establishment Clause requires that public education be secular and neutral as to religion,” Sotomayor wrote. Eventually, she fears, the court will come to “a place where separation of church and state becomes a constitutional violation.”

This is as radical a decision as any the court has made, and a reminder that Roberts is fundamentally no better than any of the Trump appointees when the chips are down, when the foundational principles of the nation are before him.

What is expressly not in the Constitution is any reference to the number of seats on the U.S. Supreme Court. It’s time to unpack this creation of the Federalist Society, Mitch McConnell, and Trump, and restore the court’s legitimacy. Expanding it and reforming it is the only way to accomplish that.

Elite Republicans were fine with giving up the war against LGBTQ rights. But now they have to join in the hate.

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On the surface, Marietta Memorial Hospital v. DaVita is a Medicare case with little to say about LGBTQ rights. Dig deeper, however, and it is quite troubling.

At first glance, the Supreme Court’s decision in Marietta Memorial Hospital v. DaVita has little to do with LGBTQ rights, or with traditional forms of discrimination more broadly. The Court’s 7-2 decision in Marietta narrowly reads a federal law intended to limit Medicare expenses, shifting certain costs from private health plans to the federal government in the process.

But, as Justice Elena Kagan explains in a persuasive dissenting opinion, Marietta could have ominous implications for victims of anti-LGBTQ discrimination, as well as for some victims of religious and other forms of discrimination. Read broadly, the Marietta decision could provide both government entities and private businesses with a workaround they can use to avoid triggering anti-discrimination laws — even as they engage in unlawful discrimination.

Medicare is ordinarily thought of as a single-payer health plan for older adults, but it also extends coverage to hundreds of thousands of Americans with end-stage renal disease — an expensive condition that requires patients to either undergo dialysis or receive a kidney transplant in order to continue living.

Some patients with this disease, however, also have private health coverage through their employer-provided health plan or through some other private insurer. A federal law enacted in the early 1980s provides that, for these individuals, Medicare will only cover the costs of kidney dialysis that are not already covered by the private insurer.

Federal law also provides that a private health plan “may not differentiate in the benefits it provides between individuals having end stage renal disease and other individuals covered by such plan on the basis of the existence of end stage renal disease, the need for renal dialysis, or in any other manner.” The idea is to prevent private plans from offering such skimpy coverage of renal care that Medicare winds up picking up all the costs of dialysis.

Nevertheless, in Marietta, an employer-provided health plan provided “relatively limited reimbursement rates” to dialysis providers, in alleged violation of the law prohibiting private plans from discriminating against individuals with end-stage renal disease. Justice Brett Kavanaugh’s opinion for the Court reads the federal statute narrowly, holding that so long as a health plan provides “the same dialysis benefits regardless of whether an individual has end-stage renal disease,” it does not run afoul of federal law.

The problem with this holding, as Kagan explains in dissent, is that “outpatient dialysis is an almost perfect proxy for end stage renal disease.” According to Kagan, 97 percent “of people diagnosed with end stage renal disease—all those who do not obtain a preemptive kidney transplant—undergo dialysis.” And as many as 99.5 percent of “outpatient dialysis patients have or develop end stage renal disease.”

So if an insurer refuses to cover dialysis, it is effectively denying coverage to end-stage renal patients.

That brings us to why this decision could have severe implications for LGBTQ Americans. The Supreme Court has long held that laws that target “homosexual conduct” are themselves a form of anti-LGBTQ discrimination. That is, a state cannot get around laws prohibiting anti-LGBTQ discrimination by targeting sexual activity associated with same-sex attraction.

Just as needing dialysis is an “almost perfect proxy” for identifying people with end-stage renal disease, same-sex sexual activity is a strong proxy for identifying people who are gay or bisexual. Thus, if the logic of Marietta is applied to laws prohibiting LGBTQ discrimination — that is, if governments, employers, and other institutions that may wish to discriminate on the basis of sexual orientation are allowed to target activity that is closely associated with being gay or bisexual — those laws could become meaningless.

Kavanaugh’s reasoning in Marietta could have profound implications for LGBTQ rights.

Various federal and state laws prohibit discrimination because of certain protected traits. Title VII of the Civil Rights Act of 1964, for example, prohibits employment discrimination on the basis of “race, color, religion, sex, or national origin.” In Bostock v. Clayton County (2020), the Court held that discrimination on the basis of sexual orientation or gender identity is a form of sex discrimination forbidden by Title VII and similar laws.

But what happens if an organization discriminates based on an activity that is closely tied to race, gender, or some other protected trait? That depends on how closely tied that activity is to the trait. The Court has also given different answers to this question at different points in its history.

The low-water mark for the Court’s decisions prohibiting discrimination on the basis of activity closely tied to a protected trait was its 1974 decision in Geduldig v. Aiello. Geduldig held that discrimination on the basis of pregnancy is not a form of unlawful sex discrimination, even though the ability to become pregnant is closely associated with being a woman.

Much as Kavanaugh’s opinion in Marietta ruled that a health plan does not discriminate against people with renal failure so long as it affords the same dialysis benefits to all of its customers, Geduldig held that discriminating on the basis of pregnancy does not amount to discrimination against women.

“Absent a showing that distinctions involving pregnancy are mere pretexts designed to effect an invidious discrimination against the members of one sex or the other,” the Court reasoned in Geduldig, “lawmakers are constitutionally free to include or exclude pregnancy” in broader laws protecting workers with health conditions.

Four years after Geduldig, Congress enacted the Pregnancy Discrimination Act, which provided that employment discrimination “on the basis of pregnancy, childbirth, or related medical conditions” is a form of sex discrimination that violates Title VII. And subsequent Supreme Court decisions undermine Geduldig’s suggestion that discrimination on the basis of an activity closely associated with a protected trait is lawful.

Kagan notes two such decisions in her Marietta dissent. One is the Court’s landmark LGBTQ rights decision in Lawrence v. Texas (2003), which struck down a Texas law prohibiting certain sex acts. Among other things, Lawrence explained that “when homosexual conduct is made criminal by the law of the State, that declaration in and of itself is an invitation to subject homosexual persons to discrimination both in the public and in the private spheres.”

In case Lawrence left any doubt about this point, the Court’s subsequent decision in Christian Legal Society v. Martinez (2010) made clear that laws that prohibit discrimination on the basis of sexual orientation also prohibit discrimination against people who engage in same-sex sexual activity. As Justice Ruth Bader Ginsburg wrote for her Court in Martinez, “our decisions have declined to distinguish between status and conduct in this context.”

Similarly, the Court recognized in Bray v. Alexandria Women’s Health Clinic (1993) that when an institution targets activities that are “engaged in exclusively or predominantly by a particular class of people,” then “an intent to disfavor that class can readily be presumed.” As Justice Antonin Scalia wrote in Bray, “a tax on wearing yarmulkes is a tax on Jews.”

This rule applies, moreover, even though there are some instances when non-Jews wear yarmulkes (or, for that matter, when straight people engage in sexual activity with people of the same sex). As Kagan writes in her Marietta dissent, “a tax on yarmulkes remains a tax on Jews, even if friends of other faiths might occasionally don one at a Bar Mitzvah.”

Admittedly, the Court’s previous opinions have not been precise about just how closely an activity must be associated with a protected trait before discrimination against people who engage in that activity becomes a form of unlawful discrimination. Although Bray recognized that a tax on yarmulkes would unlawfully discriminate against Jews, Bray also rejected the proposition that because “voluntary abortion is an activity engaged in only by women, to disfavor it is ipso facto to discriminate invidiously against women as a class.” (Scalia did not have particularly enlightened views about transgender or nonbinary individuals.)

Quoting from Geduldig, Scalia wrote in Bray that “while it is true ... that only women can become pregnant, it does not follow that every legislative classification concerning pregnancy is a sex based classification” — including classifications concerning patients who want to terminate their pregnancies.

But, as Kagan notes in her Marietta dissent, identifying people who require outpatient dialysis is an extraordinarily good proxy for identifying people who have end-stage renal disease. Indeed, it is most likely as good of a proxy as identifying people who engage in same-sex activity is a proxy for identifying people who are gay or bisexual.

That is why Marietta is potentially a serious blow to LGBTQ rights, because it allows differential treatment on the basis of conduct (receiving dialysis) that is a nearly perfect proxy for a status (having end-stage renal disease) that is protected by law. This could undermine the Court’s holding in Lawrence and Martinez that anti-discrimination law makes no distinction between the “status” of being gay or bisexual, and the “conduct” of having sex with people of the same gender.

There's notable opposition to threat assessments or school hardening efforts.

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John Rich made pie charts of dog body proportions. This is very important.

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