Mid-August: the precious time when Supreme Court justices gallivant around the world and the Constitution is, as Chief Justice John Roberts once put it, safe for the summer. Or that’s how it used to be.

Today, of course, the Court no longer finishes its most important work with the marquee cases of late June. Instead the justices are issuing key rulings the whole year round, many of them without argument, without trial courts finding facts, and often without explanation. Now summer, like spring, winter, and fall, is the season of the shadow docket.

Some justices have protested that the term sounds unfairly sinister; they prefer “interim” or “emergency” docket, which was accurate for most of history, when it was used almost exclusively for matters that could not wait for the Court’s leisurely pace to be resolved: appeals by death row inmates for a stay of execution and so forth.

But “shadow” is an appropriate word to describe the docket as it is managed by the current Court’s majority, which uses it constantly to issue supposedly temporary rulings, almost always without briefing, oral arguments or, in many cases, written opinions with vote counts. All of these features are present in the Court’s more well-known merits docket, and they are also the means by which it shores up its legitimacy.

Their absence from most of the shadow docket cases raises serious concerns about the Court’s operation and sows confusion throughout the federal judiciary. That’s why this week’s newsletter is going to focus on something that only a few years ago I would not have imagined would be necessary: a federal law to force the Supreme Court to explain its own rulings.

How can it have come to this? Isn’t it the most contemplative institution in American government? The one that takes months if not years, and dozens if not hundreds of pages, to decide some of the highest-profile disputes in American life?

Certainly the chief justice sees it that way. Back in 2018, he firmly rejected an interviewer’s suggestion that it was time, at long last, for cameras in the Court. “We’re the most transparent branch in government, in terms of seeing us do our work and us explaining what we’re doing,” Roberts responded.

And yet here we find ourselves in the summer of 2026 — 250 years after the beleaguered colonists, driven by “a decent respect to the opinions of mankind,” laid out in explicit detail their reasons for armed revolt — pleading with nine unelected, life-tenured lawyers to show us their work.

As Supreme Court reform becomes a major talking point in advance of the midterms, let’s give some attention to one of the clearest ways Congress can rein the justices in.

First, a reminder of how quickly the legal landscape has changed: Until recently, the government rarely asked the justices to decide cases on the emergency/interim/shadow docket. Presidents George W. Bush and Barack Obama sought such action only 8 times in 16 years. But in the last decade, the Court’s definition of “emergency” has grown to include almost any lower-court ruling the justices feel like weighing in on. While these shadow docket orders are not final in a legal sense, they often are in a practical one — say, when the Court allows the president to deport an undocumented immigrant or fire thousands of civil servants.

Combine this with a president who believes everything is an emergency — during Trump’s first term his administration sought shadow docket relief 41 times — and you have a recipe for the sort of arbitrary, unexplained exercise of power that led Americans to declare their independence from the Crown in the first place.

Now, like so much other harmful behavior over the last decade, presidents filing for emergency applications has become normalized. Taking a cue from Trump, the Biden administration ran to the Court far more often than Bush or Obama did (19 times); still, Trump remains the undisputed champion of line-cutting, matching Biden’s four-year total in the first 20 weeks of his second term and reaching nearly double that number before the midterms.

Currently the Court is considering emergency appeals from Trump regarding whether he can build a new White House ballroom without going through Congress, and whether he can make it harder for Americans to cast their vote by mail (the way Trump himself votes). 

As my Brennan Center colleagues are assiduously tracking, Trump has prevailed in the vast majority of these petitions, a fact his apologists attribute to his administration’s strategy of bringing only the cases they feel confident in. Either way, the Court has made it easier for Trump to win by quietly altering its own standards. In the past, the justices first decided whether the party seeking an emergency stay would suffer “irreparable harm” if the lower-court ruling were allowed to stand. Now, the right-wing justices appear to have decided that a president is irreparably harmed whenever he is blocked from implementing a policy — a Republican president, anyway. (They do not appear to consider the irreparable harm to, say, a wrongfully deported immigrant.)

The justices’ unexplained change in standards plus Trump’s remarkably high win rate has led reasonable people to suspect that decisions are being made for partisan political reasons, an imputation that the Court can never afford, and certainly not these days.

What’s particularly frustrating is that this should be a low bar for America’s highest court. Requiring officials to give reasons for their actions is the foundation of liberal society, the sine qua non of modern representative government. It’s what separates a constitutional democracy from an authoritarian regime. Indeed, it’s right there in the Constitution: The Great Writ — habeas corpus — is based on the principle that if the state wants to detain you or deprive you of your liberty, it must first bring you into open court and provide the precise reasons why.

Instead, the Roberts Court has grown far too comfortable making decisions without giving reasons, confounding not only the litigants before them but all the lower-court judges who must scramble to apply the new rulings correctly, if they can understand them in the first place.

Justice Sonia Sotomayor flagged this latter issue in her dissent from the Court’s shadow-docket ruling last fall in Noem v. Perdomo, which permitted — without explanation — racial profiling by immigration officials in Los Angeles to continue. “Neither the District Court nor the parties will know whether the majority believed the key issue was standing, the merits, or the scope of relief. . . . It will be anyone’s guess [what] the majority thought.”

That wasn’t a hypothetical. In an incident from another case last fall, a veteran federal district judge, William G. Young, blocked the Trump administration from canceling millions of dollars in grants by the National Institutes of Health. Apparently, Young had failed to intuit the meaning of an earlier shadow docket ruling by the Supreme Court, which involved the canceling of grants by a separate agency while offering almost no actual reasoning. For this crime, the judge endured a harsh public scolding by Justices Neil Gorsuch and Brett Kavanaugh.

“Lower-court judges may sometimes disagree with this Court’s decisions, but they are never free to defy them,” Gorsuch wrote.

Young, a Reagan appointee and judge for 47 years, apologized in open court. “Never before this admonition has any judge in any higher court ever thought to suggest that this court had defied the precedent of a higher court — that was never my intention,” he said. “I simply did not understand that orders on the emergency docket were precedent,” he added. “I stand corrected.” (Never mind that the justices seem unable to agree even with themselves on this point: In his smackdown of Young, Gorsuch wrote that a Supreme Court decision is a “precedent that commands respect in lower courts,” but only five years ago Justice Samuel Alito had said emergency docket rulings are not precedential.)

As I wrote in another context, the wrong judge apologized. It should have been Gorsuch and Kavanaugh saying sorry — in this case, for their smug rebuke of a dedicated and honorable judge doing the best he could with useless guidance from the high court. Thankfully, one of Young’s colleagues, Judge Allison Burroughs, stood up for him, writing in a footnote in one of her own cases that the Supreme Court’s shadow docket rulings “have not been models of clarity” and that “it is unhelpful and unnecessary to criticize district courts for ‘defying’ the Supreme Court when they are working to find the right answer,” despite the Court’s tendency to disregard precedent “without much explanation or consensus.”

The justices are aware of the growing concerns about their use of the shadow docket, and their responses have ranged from haughty dismissiveness (Alito, who called the criticisms “silly”) to defensiveness (Justice Clarence Thomas, who blamed aggressive litigants) to genuine regret (Justice Ketanji Brown Jackson, who said in a speech that issuing “important decisions in such a cursory manner disrespects not only the people whose lives are upended by the rulings but also the public.”)

Jackson made the obvious point that emergency applications have increased so dramatically precisely because the Court has been increasingly willing to rule on them. “If you build it, they will come,” she said in her speech. That suggests a potential off-ramp, which is that the Court could simply stop entertaining most such petitions. Kate Shaw, a law professor at the University of Pennsylvania, said, “If it is not in a position to offer reasons to support its decisions, then, except in the most extraordinary circumstances, it should do nothing and allow the carefully reasoned orders of lower courts to stand.”

That advice may be too sensible for this Court to heed, which is why in the end the issue will have to be resolved as so many other dysfunctions at the Court must be: by Congress.

As my colleagues Miriam Rosenbaum and Emily Whitehead proposed in a report in April, Congress can and should require the Court to provide written and signed opinions explaining all of its rulings, temporary or final. At least two shadow docket reform bills have been introduced in the last year to that effect, by Maryland Rep. Jamie Raskin and by Connecticut Sen. Richard Blumenthal. These bills would require explanations by the justices and would also codify the legal standard for emergency applications so that any potential “irreparable harm” would have to be considered for all parties involved, not just the president.

The shadow docket crisis is in many ways a perfect metaphor for a Court that has both arrogated immense new powers to itself and refused to be held accountable for its use (and abuse) of those powers. Because the justices have shown time and again that they are unable or unwilling to police themselves, the solution is for Congress to step up and remind them who’s really in charge around here.

What I’m Reading

A bit of a grab bag this week: first, Steve Vladeck is America’s go-to expert on the shadow docket, and one of my most relied-on legal bloggers, so I want to call out one of his posts from last summer, where he went deep on the faceoff between Gorsuch and Young that I mentioned above.

Next, Garrett Graff, one of the best national security reporters in the country, wrote this about corruption at ICE and CBP last winter, in which he calculated that the crime rate of CBP agents and officers is actually higher per capita than that of undocumented immigrants.

In The New Yorker, Margaret Talbot has a superb, extended consideration of the chief justice’s tenure 20 years on, and the delusions that keep him going. She writes, “Roberts, with his country-club equanimity, can seem like a man out of time.”

A small cheat: Here is a 2021 New York Times editorial (unsigned, but I’ll give you one guess as to authorship) arguing for the abolition of the filibuster. It’s worth recounting these arguments now, because the filibuster will have to die for Supreme Court reform (as well as much other salutary legislation) to live.

Finally, read this beautiful letter Thomas Jefferson wrote to James Madison in September 1789. The Constitution had only been in effect for a few months, and already Jefferson was making the case that it shouldn’t last longer than 19 years. “If it be enforced longer, it is an act of force, & not of right,” he wrote. The letter includes one of my favorite lines from Jefferson: “the earth belongs in usufruct to the living.”

IMAGE: Andrew Harnik/Getty

In mid-July, Justices Elena Kagan and Amy Coney Barrett crossed the street to Capitol Hill for an all-too-rare appearance before Congress. Their goal: to get Congress to put up more money for the justices’ security.

The Court’s budget request for the upcoming fiscal year includes more than $207 million for expenses not including their own salaries (which are constitutionally protected from being reduced), an increase of some $131 million and 333 full-time employees since 2016, according to SCOTUSblog. A big chunk of that increase is the result of beefed-up security: In the new request, $14 million would go toward the hiring of 84 more officers and support staff to protect the Supreme Court building and the justices themselves.

It’s a lot of money, but listening to Kagan and Barrett speak personally about this issue, it was hard not to sympathize. Two months before the hearing, Barrett said, her teenage son had opened the front door to a street full of police officers responding to false reports of gunshots at the justice’s home — the latest “swatting” incident targeting a high-profile individual.

That was just one of the many threats received by the justices, who have faced a skyrocketing number in recent years, particularly since the Court struck down Roe v. Wade in 2022. Weeks before the justices announced that ruling, a version of which had been leaked to the public, a person was arrested in the middle of the night outside Justice Brett Kavanaugh’s home, having travelled across the country to assassinate him.

We live in an age of political violence, and top government officials are obviously right to be worried for their safety. They deserve to perform their jobs free from the fear that they will be killed.

But — and here’s what at least some of the justices don’t seem very concerned about, if they fathom it at all — the rest of us deserve no less.

Instead, thanks in large part to decisions by this Supreme Court striking down gun restrictions of all types, Americans have grown accustomed to living in a land where they can be gunned down at any moment, for any reason, in any space, public or private: at work, at home, in school, at church, at the movies, at a concert, at a food festival — even in the halls of Congress where they made such a compelling case for their own protection. I think about this every day when my kids are in school; each time a police siren sounds in the distance, I wonder, did it happen here? Did the guy (or kid) with the illegally (or legally) purchased firearm finally find his way to my town?

This is the world of constant, low-grade terror that Americans inhabit daily, and it’s one that has been constructed primarily by the right-wing justices of the Roberts Court. It started with the 2008 decision in District of Columbia v. Heller, in which five justices voted to overturn a century’s worth of precedent regarding the Second Amendment, and has continued through this past June, when the Court struck down a Hawaii law prohibiting people from bringing guns onto private property that is open to the public unless they have consent from the property owner.

This record, as the great Supreme Court analyst Linda Greenhouse wrote, reflects not only a failure of constitutional interpretation, but “a failure of democracy.” Again and again, Americans have said by clear majorities that they want commonsense gun restrictions; again and again, their elected representatives have passed those restrictions; again and again, the Supreme Court has struck them down.

That’s bad enough. What’s worse is that this undermining of public safety is playing out against the backdrop of a political movement, and a presidential administration, defined by its reliance on threats and intimidation. From Donald Trump’s first run for the White House in 2015, he has stoked violence, he has glorified it, he has justified it, and when all else has failed, he has pardoned it. He has persisted even after being a target of violence multiple times himself, coming within inches of being assassinated.

What does this mean for the Court? Clearly it cannot weigh day-to-day politics in issuing its rulings, but it’s worth asking whether at least some of the justices are affected by the climate of fear and violence that the president and many of his followers have cultivated. It’s not outlandish to imagine they are: After all, political violence distorts the functioning of government at all levels, as my colleague Maya Kornberg has written. Republican politicians have admitted as much in recent years, saying they are “scared shitless” by threats from Trump supporters, and that in some cases their votes may have been swayed by that fear. (North Carolina Sen. Thom Tillis received “credible death threats” simply for considering voting against Pete Hegseth’s nomination for Defense Secretary, according to Vanity Fair, which pointed out that Tillis eventually provided the 50th vote to confirm Hegseth.)

You might think that Trump’s penchant for targeting the federal judiciary would be the wake-up call the Supreme Court needs. Certainly lower federal judges are confronted daily with the dangers of Trump’s attacks, which he levels whenever they rule against him. Last year he referred to judges as “lunatics” and “monsters.” No surprise, then, that in the last four years alone, serious threats against federal judges have increased by 78 percent. As one Reagan appointee told 60 Minutes in March, “I’ve been at this for 44 years. I have never encountered the hostility toward the judiciary that has existed in this country in the, the last year.”

And yet the Court, usually in the form of Chief Justice John Roberts, has offered only the mildest rebukes of this dangerous behavior. If anything, the justices have made matters worse by their reliance on the shadow docket: As NBC News reported last year, many federal judges are concerned that when the Court reverses without explanation a lower court decision that went against Trump, it sends a signal that the rest of the judiciary is trying to undermine the presidency and emboldens those who would go further than simply tweeting angry messages at judges.

So: You will never hear me question anyone’s desire to be safe from violence, but you may hear me snort when the most powerful officials in our government refuse to let the American people take reasonable measures to protect themselves, and then come hat in hand asking us, the taxpayers who pay their irreducible salaries, to ensure that they are protected from the violence they have helped unleash on the rest of us.

What I’m Reading

It’s not court-related but it’s been on my mind a lot the last few days: the sudden and devastating death of Glen Hansard, the wonderful Irish singer and songwriter who made his name with the film Once and devoted his life to making other people’s lives better. What a loss.

I’ve said it before, I’ll say it again: The Supreme Court is deeply, dangerously unpopular. The latest Gallup poll is brutal, thanks to increasing Republican unhappiness.

In The New Yorker, Jeannie Suk Gersen struggles to understand modern liberals’ avoidance of natural law. While it “has been contested throughout our history,” she writes, “over the long haul, liberals have fared well in reading the Constitution in light of the higher principles of fundamental justice.”

Over at the National Constitution Center, there’s a powerful catalog of reactions to the Declaration of Independence by Black Americans, who were “the first to interpret the phrase ‘all men are created equal’ as a statement of individual equality and have employed it most often and most eloquently over the past 250 years to advance liberty and equality for all Americans.”

And one more on the Declaration, which was signed 250 years ago on Sunday, August 2 (July 4 is the date that Congress voted to adopt the Declaration): this by Laura K. Field in The Bulwark, about how the intellectual leaders of the MAGA movement distort the meaning of our foundational document.

IMAGE: Matt Jeacock/Getty

One of the many things I value about working at the Brennan Center is that I am surrounded by some of the sharpest thinkers in the country, if not the world, on democracy, courts and the law. When I sat on The New York Times editorial board, many of these people were my trusted sources; now they are my colleagues. It is a privilege to be able to knock on a door, make a call, send an email, or Slack them with questions about their work — our work — and I avail myself of that privilege daily.

The latest example of this came last week, when the Brennan Center published a new memo on Supreme Court term limits by my colleagues Alicia Bannon, Stephen Spaulding, and Eliazar Chacha. The memo makes the case for why Congress has the power to institute term limits through federal statute, no constitutional amendment required. I made this point in a Times essay in May, but I did not dwell on it then; that’s what Major Questions is for.

At 40 pages, the memo is the most thorough and evenhanded treatment of the subject I have seen yet. While this may sound like a funny thing to say about a heavily footnoted legal memo, it’s actually thrilling to read. (Perhaps that marks me as a Supreme Court nerd, but you already knew that.) The thrill comes from seeing a path to a desperately needed reform laid out before you with such clarity and rigor, with the most serious objections addressed head-on and refuted. This is how change happens, friends! Much of the last several decades of American politics have felt like an exercise in futility, as long-simmering problems only get worse and we are told there’s no way to fix them. Here, on this one issue at least, is a clear way.

First, I’ll summarize the memo, which you can read in full here.

The central theme is one that I have been hammering at since the first edition of Major Questions: Congress has far more power over the Supreme Court than most people realize, and certainly more than it has exercised in living memory.

That power derives from several clear constitutional provisions, most of all the Necessary and Proper Clause, which authorizes Congress “to make all Laws which shall be necessary and proper for carrying into Execution . . . all other Powers vested by this Constitution in the Government of the United States.” The Constitution’s authors listed several explicit congressional powers, such as collecting taxes, regulating commerce, coining money, and declaring war, but they recognized that to fully exercise those powers, Congress would need additional powers — hence the Necessary and Proper Clause (h/t: James Wilson). As the Supreme Court put it in the landmark 1819 case McCulloch v. Maryland, the clause grants Congress “any means which tended directly to the execution of the Constitutional powers of the Government.”

When Congress was in the business of actually using its legislative powers over the Supreme Court, it relied on this clause all the time: to set the number of justices, or the Court’s jurisdiction, or the timing of its term, and so on. As the new memo explains, setting term limits for active service on the high court falls squarely within the clause.

“The breadth of what Congress not only can do but has done in the past was really striking to me,” Alicia told me. “In the early 19th century, Congress had the Court actually skip a whole year. We’ve lost that muscle memory in recent decades, as Congress has really not had as much engagement with the Court as an institution. But this is a historical aberration.”

What would a term-limits law look like? The current leading proposals all share the same structure: 18-year terms for justices, followed by a shift to senior status. Senior justices would no longer sit on the nine-member Court. Instead, their duties would change to include sitting by designation on lower federal courts (as many have done and continue to).1

The main objection to a term-limits law is that it violates Article III of the Constitution, which provides that justices hold their offices during “good behavior” — that is, for life. The answer, as the memo explains in depth, is that such a law would be perfectly consistent with that provision, because senior justices would continue to hold their offices (and draw their salary, as the Constitution also requires) for as long as they chose to remain justices.

How can we be so confident that this is right? Because both the Supreme Court and Congress have said so, repeatedly. In a 1934 case, Booth v. United States, the Court ruled unanimously that judges retain their offices even after taking senior status. Congress may not abolish a judge’s office, the Court said, but it may use its constitutional power to “lighten judicial duties.” The Booth decision involved only lower federal judges, but three years later, Congress extended the statute at issue to include Supreme Court justices. And in 1948 it revised the law to state explicitly that both judges and justices “may retain the office but retire from regular active service.”

While the Supreme Court has not considered a case directly challenging the constitutionality of the 1948 law, it noted in a 2003 decision that senior judges are, “of course, life-tenured Article III judges who serve during ‘good Behaviour’.” In the lower courts, not a single challenge to the law has ever succeeded.

That should be enough to convince you — it is enough to convince me — that Congress has the unquestionable power to set term limits for Supreme Court justices. But the memo doesn’t stop there; it takes on several other substantive objections to a term-limits law and, to my mind, convincingly refutes them all. I won’t go into the details of those objections here, but they are handled in Section III(D) of the memo if you want to see for yourself.

The bottom line is that court reformers should see the Constitution as a friend, not a foe. “When you look at the text of Article III, which governs the judiciary, there isn’t that much in there,” Alicia explained. “Our system was designed to allow Congress to figure out how to structure the Court in a way that is responsive to our needs in changing times.”

I do want to flag one other provision behind Congress’s power to set term limits: the Exceptions Clause of Article III, Section 2. The Constitution’s framers recognized two broad types of Supreme Court jurisdiction: original and appellate. Original jurisdiction is the power to hear a case from the outset, as a trial court does. The Constitution is clear about when the Court has original jurisdiction; the list is short and well-defined. In all other cases, the Constitution gives the Court appellate jurisdiction, but only “with such Exceptions, and under such Regulations as the Congress shall make.” That distinction is crucial. While Congress has no power to interfere with the Court’s original jurisdiction, it has enormous power to regulate its appellate jurisdiction, which is how the overwhelming majority of cases reach the Court. For that reason, the Exceptions Clause is arguably sufficient authority for Congress to set term limits, as Diane Wood, a former federal appeals court judge, has written for the Brennan Center.

Now for the realpolitik: Any Supreme Court term-limits bill that passes Congress will be challenged, and will surely end up before the justices themselves. How will they rule? It’s hard to say, but it’s important to have the strongest arguments in favor of it lined up in advance.

I’ve laid out the essence of those arguments above, but I want to leave you with a few bigger-picture thoughts. First, the justices often act as though they exist outside and above the Constitution, but as Alicia said, “That’s not true. They’re public servants, they’re part of our constitutional system, they’re part of checks and balances.” Which raises the curious fact that the American public recognizes that the Court plays an essential role in checking the other branches but is much more conflicted about the other branches checking the Court. (A topic for another newsletter!)

Second, term limits would be good for the Court’s legitimacy. You often hear opponents of term limits (including the justices themselves) claim that they would undermine the Court’s independence, but in reality, the Court is suffering from a perceived lack of independence, which has driven its public approval ratings to their lowest in history. That is the result of justices who stick around for decades, severing the Court’s connection to the democratic process. Term limits would help restore the Court’s independence.

Finally, what I find most encouraging about this fight, and what the memo so clearly illustrates, is that all the components of a term-limits law are already part of existing federal law and practice. For instance, retired justices already sit by designation on lower federal courts (1,300 times, by the memo’s count). “I think that is one of the things that is really appealing about term limits,” Alicia told me. “All of the pieces of this reform are largely already in place.” In short, term limits are not reinventing the wheel; they are attaching it to the broken-down vehicle at One First Street.

What I’m Reading

It’s a few months old now, but check out this piece on the last of the conservative swing justices, Anthony Kennedy, by Linda Greenhouse, the former New York Times Supreme Court correspondent, who is always worth reading.

This report from Pew Research Center on the actual diversity of American political opinion is a clear illustration of how much harm the two-party duopoly does to our ability to govern ourselves.

And this piece, from The New York Times last month, offers up a voting mechanism that could produce more broadly acceptable candidates: majority-rule voting, also known as Condorcet voting, in which voters rank-order their choices and the winner is the candidate who would defeat every other candidate in a head-to-head matchup.

Another reform idea! A fourth branch of government, argues Gabe Fleisher at Wake Up To Politics, would provide a level of accountability currently missing from the system.

No surprise, but important nonetheless: the latest Washington Post-Ipsos poll finds a majority of Americans now disapprove of the Supreme Court.

IMAGE: Kevin Carter/Getty

I often write in Major Questions about Supreme Court rulings I disagree with. Today, in light of last week’s decision in the birthright citizenship case, I’m turning my attention to rulings that come out the “right” way and yet still don’t feel like a win.

To get you in the spirit, here’s a question: How many times in the last decade-plus have you learned of a 5–4 (or 6–3) Supreme Court ruling in which the majority followed long-established precedent, or even — stay with me here — the plain language of the Constitution, and felt not relief but dread? Not “Thank god the Court did its job” but “How could it have been so close?”

That’s how I felt, once again, after the Court’s 5–41 ruling in Trump v. Barbara, which involved an executive order President Trump signed in 2025, on his first day back in office, purporting to deny citizenship to babies born on U.S. soil to noncitizen parents.

This is about as direct a constitutional violation as you will find in the wild. Section 1 of the 14th Amendment states, “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States, and of the State wherein they reside.” That unequivocal language — “all persons” — was drafted in response to the Supreme Court’s infamous 1857 ruling in the Dred Scott case, which denied that former slaves and their descendants could ever be citizens. For more than a century the Court has interpreted that language broadly, as intended, with a few narrowly defined and widely accepted exceptions, none of which were at issue in the birthright case.

The Court, as expected, ruled against Trump. The New York Times expressed the prevailing mainstream interpretation of that result: “Supreme Court Upholds Birthright Citizenship,” read the big bold letters across the top of the Times’s website. But while that was technically accurate, it, like much mainstream coverage of the Court’s decision, obscured more than it revealed.

What it obscured was the justices’ vote on the question of whether the Constitution means what it plainly says, which was not unanimous as it should have been, but 5–4—as close as it can get.

This is bad both for the Court and for the country. It’s bad for the Court because, as the indispensable SCOTUS observer Steve Vladeck wrote in his newsletter, “unanimity (or near-unanimity) in high-salience cases is the single most powerful signal the Court can send that it is acting institutionally.” It’s bad for the country because of what it portends for the future. As The Atlantic’s Adam Serwer wrote, a 5–4 ruling in a case like Trump v. Barbara “is not a win, it’s a reprieve.”

How could it have been so close?

The answer in this case was that four of the right-wing justices were willing to entertain a novel, convoluted reading of the phrase “subject to the jurisdiction thereof” and to ignore or explain away more than a century and a half of settled law.

Put aside for the moment the naked racism of the anti-birthright movement, which only seems to apply to darker-skinned immigrants (no surprise, given that it has been spearheaded by a president who rode into the White House claiming falsely that his predecessor, the nation’s first Black president, was not a natural-born American citizen). Consider instead the speed with which an untested legal theory was adopted by as many as four justices of the Supreme Court.

This phenomenon has repeated itself so often during the Roberts Era that it has a name: putting “off the wall” arguments “on the wall.” That’s from Jack Balkin, a Yale law professor and one of the country’s leading constitutional scholars, who watched an earlier iteration of the Roberts Court in 2012 come perilously close to striking down the Affordable Care Act’s individual mandate to retain health insurance coverage, the heart of President Barack Obama’s signature health-care law.

To mainstream legal scholars at the time, this was a shock twice over. First, because the individual mandate was the product of conservative think tanks looking for a market-based solution to America’s health-care crisis; and second, because the constitutional argument in favor of the mandate was based on well-established precedent while the argument against it was, to use Balkin’s legal term of art, “simply crazy.”

In Balkin’s telling, conservative activists had taken a constitutional claim that was “off the wall” and, in conjunction with the Republican party and right-wing media, managed to put it “on the wall.” Off-the-wall arguments are entertained by fringe thinkers, if at all. On-the-wall arguments are “at least plausible,” Balkin wrote in The Atlantic in 2012, and thus could become law if enough justices can be persuaded to adopt them.

In the case of the individual mandate, four justices were persuaded to sign on to an off-the-wall legal theory — not quite enough to strike down the mandate, but enough to make the Court’s decision upholding it feel far less secure than it otherwise might have.

So how do claims move from off the wall to on the wall? As Balkin explained, intellectuals promote controversial or counterintuitive (if not indefensible) arguments, which are then amplified and normalized by committed social movements. In the end, it comes down to party politics. “The single most important factor in making the mandate opponents’ constitutional claims plausible was strong support by the Republican Party, including its politicians, its affiliated lawyers, and its affiliated media,” he wrote.

Such shifts in legal interpretation are so important, of course, because the Supreme Court defines the law for the entire federal judiciary. When even a few justices sign on to previously fringe ideas, it sends a message about where the Court is headed in the future, and what sorts of rulings we might get if just one or two seats change hands.

As soon as the birthright citizenship ruling came down last week, I got Affordable Care Act vibes, so I called Balkin up and asked him what he thought. He was not surprised.

“Legal argument is shaped by what I call nodes of power,” Balkin told me. “Whoever occupies the nodes of power in the system will have an overwhelming say in what moves from off the wall to on the wall.” He pointed out that six justices on the current Court have been appointed by Republican presidents. “If you look for nodes of power, gee, it’s not hard to see how this moves from off the wall to on the wall.”

Balkin flagged other recent rulings that fit the pattern, including the Court’s 2023 decision in Moore v. Harper, which rejected an idea called the independent state legislature theory. On the surface, this was as it should be, given that the theory was so bereft of support that its advocates found themselves citing phony historical documents to make their case. And yet the vote in Moore v. Harper was not unanimous; it was 6–3, with Justices Clarence Thomas, Samuel Alito, and Neil Gorsuch dissenting. In a case labelled “the most important case for American democracy” ever by a prominent conservative former appellate judge, one-third of the Court was happy to sign on to a notion that NYU Law professor Melissa Murray rightly described as less theory than “fan fiction.”

I said at the start that I wanted to focus on cases that came out the “right” way, so as to arm ourselves against irrational exuberance (RIP Alan Greenspan), but Balkin reminded me that there are more than a few cases where off-the-wall arguments were adopted by a majority of the Court, resulting in a ruling that was awful in both process and substance. Honorable mention in this category goes to one of the most abhorrent of those cases: Trump v. United States from 2024, in which the six right-wing justices delivered among the most lawless, indefensible rulings in the Court’s history, a gift of near-total criminal immunity to President Trump — and all other presidents, of course, but what other president has ever been in need of criminal immunity besides, say, Richard Nixon? Nixon, you may recall, not only lost his own 1974 Supreme Court appeal but did so unanimously. That Court, I would note, was staffed with justices far less beholden to their partisan preferences than today’s justices appear to be.

The takeaway is that we can debate the nuances of legal principles until the end of time, but who sits on the Court matters more than anything else. Balkin offered me a concrete example from the recent past to drive home the point. “Suppose that Scalia dies and Obama appoints somebody and [then-Senate Majority Leader Mitch] McConnell doesn’t prevent them from being heard. Then you have a five-person liberal majority for first time since 1969. Guess what? These arguments stay off the wall.”

Balkin continued, “That’s how politics affects judicial review. One of the checks and balances on the Court is that new appointments can be made to affect the Court’s composition. But if you game the system, you get a skewed court that’s out of sync with popular opinion.”

I have written recently in this space about the importance of the Supreme Court staying close to the center of public opinion. And that, in case you needed it, is another argument in favor of term limits.

What I’m Reading

In The Bulwark, Nicole Penn has a wonderful piece on the “weirdness” of the American Revolution: the conspiracy theories, witch beatings and other “festivals of democracy” that were far more common than most people today realize.

On his podcast Stay Tuned, Preet Bharara is joined by Danielle Allen and Mary Bilder, two of my favorite historians of the founding era, to talk about the words of the Declaration of Independence (Happy Birthday America!).

In The New York Times, three of the most perceptive Supreme Court observers of our time — Vladeck, Kate Shaw, and Will Baude — get together for a postmortem on the October 2025 term.

On Amarica’s Constitution (scroll down to Show 283), the great constitutional scholar Akhil Amar speaks with Andy Lipka about Gordon Wood, the dean of founding-era historians, whose sudden death last month felt untimely, even at 92.

Also in The New York Times, Sarah Lyall reports on a remarkable discovery about a (different) American founder: John Dickinson, who engaged in fevered backroom efforts to avert war in advance of Congress’s declaring independence.

Last but not least, my Brennan Center colleague John Kowal has this beautiful reflection on the importance of resisting the mythology of our founding, which does not fit neatly into a specific ideological box, but is filled with richness and contradiction.

IMAGE: Oliver Douliery/Getty

When it comes to reforming the Supreme Court, Don Ayer is exactly the sort of person America needs to hear from more. Ayer is a veteran of the Reagan and George H.W. Bush administrations, where he served as principal deputy solicitor general and deputy attorney general. Before that, he clerked for Justice William Rehnquist (Rehnquist was later elevated to chief justice, and one of his clerks in that post was the current chief justice, John Roberts).

He might have followed a similar ideological path to Roberts and the other older conservatives on the Court, but he went in the opposite direction. During the Trump years he has spoken out frequently, in both the media and in Congress, about the damage the president and the Roberts Court are doing to the nation.

Earlier this year, Ayer joined the board of the Brennan Center. As the Court winds down another topsy-turvy, precedent-smashing term with several major rulings still to come, I reached out to talk about his front-row seat to the Originalism Era, the half-century rise of what is now a right-wing supermajority, and what we might expect in the Court’s future. Along the way, he offered a striking new detail about his old boss William Rehnquist’s views on Court reform.

This interview has been condensed and edited for clarity.

• • •

JW: You served in the Reagan administration and in the first Bush administration. As you explained in a 2021 New York Times piece, you worked at times alongside three of the current justices, John Roberts, Samuel Alito, and Clarence Thomas. You were all products of the same conservative counterrevolution in the courts. How did you end up in such different places?

DA: I was always an old-line Republican and a latecomer to Washington in the mid-1980s. Like Charles Fried, the solicitor general for whom I worked, I never really was persuaded by the most extreme doctrinal thrusts of the Reagan Revolution in the law, including the then-unsuccessful effort to literally reverse decisions of the Warren Court, or what has been, in the long run, the extraordinarily successful promotion of textualism and originalism as the key tools of legal interpretation.

My experience as a law clerk in the mid-1970s, which I took (and still do) as the best model of constitutional judging, was of a court made up of people with different backgrounds and views, considering a broad range of factors, including purpose, history, context, and consequences, along with the document itself. No justice was seriously arguing for a monolithic approach based on the text, and certainly not then about original intent or meaning. There was a lot of give and take in writing opinions people could agree upon, drawing upon what they variously found important. It was a common law kind of reasoning. And that has always struck me as a very sensible way for the highest court to interpret a document meant to last in perpetuity.

At the same time, the Reagan revolution in the law was based on the idea that we all shared: that the Warren Court — and also the Burger Court — in enunciating constitutional rights sometimes with little or no connection to the Constitution, had gone too far. The biggest single point was that when unelected judges just go off and do what they think is right or fair, you lose contact with any legitimate basis in law. Hence the appeal of the arguments forcefully advanced by the Department of Justice in the 1980s under Ed Meese, that textualism and originalism are virtually the only proper tools for reading the Constitution. But this was a very hard sell to those then on the court. I think it was 2008, in District of Columbia v. Heller, before the court actually decided a case on the basis of originalist reasoning. Of course, the last six years have been a very different story, as originalism has been episodically invoked to support a variety of outcomes.

JW: In your 2021 Times piece, you spoke of the conservatives’ “resistance to judicial meddling” that they felt the Warren Court had engaged in. You described the principle that judges should be stewards of the law, not “innovators charged with radically remaking it.” And then you wrote that this court, the Roberts Court, has “morphed into what it was meant to curtail.” Say more about that.

DA: This was said based mainly on those half dozen or so cases that they had just decided in the 2020–21 term. The reason I got excited to write that article was, here we just had Justice Barrett added to the Court, making a supermajority of pretty compatible conservatives, and we saw the court acting several times in quite unprincipled ways to reach a conclusion. There were no blockbuster opinions that made big news that year, but several times the conservative majority handed down decisions that, as dissents calmly pointed out, could not be squared with clear existing Supreme Court precedents. I was frankly shocked that the court, mostly in opinions by the chief justice, would simply defy existing law, mostly without even acknowledging it.

JW: It’s easy to be cynical, but are you saying the doctrines of textualism and originalism were mostly just a cover for ensuring there would be different people in charge of judging, and different policy preferences getting approved by the Supreme Court?

DA: I really can’t say that about what was going on in the DOJ in the 1980s. I think it was a good-faith, though misguided, effort to change legal thinking in ways that would curtail the exercise of judicial discretion.

But in recent years, as the irrelevance and shortcomings of originalism have become increasingly apparent, it has become a sort of cudgel to be used selectively to support answers that otherwise defy common sense. Heller has made the Second Amendment a topic on which rational thought by judges is off limits, in favor of asking whether a given regulation has a close enough historical analogue. At the same time, in other circumstances — the immunity case, Trump v. United States, for example — the court has taken very sharp turns in the law without material reliance on text or original meaning.

JW: In a 2022 article for The Atlantic, you wrote, “The court cannot both be the willful instigator of radical changes in the law based simply on disagreement with the views of prior justices, and remain the faithful steward of a legal system that commands widespread trust and respect.” Say more about that, especially in the light of the last four terms.

DA: I think it’s really significant that popular trust in government does turn a lot on faith in the rule of law. What that means to most people is that we live under rules that are knowable and that will usually be applied consistently and fairly. That is really not compatible with having a high court that feels empowered, even with regard to quite important legal principles, just undo them when you have the votes because you disagree. You can write some words that will say it was “egregiously wrong,”1 but it isn’t very comforting for people to be told that we’re going to change this rule that’s been around for 50 years, because the dumbasses that wrote it were just stupid, and we know better.

So, the Supreme Court that we all thought was the Supreme Court for all these years, they didn’t always agree, but they came up with resolutions that created some semblance of stability, and now we just sweep it all aside because the current crew has a better idea. When you do that many times in six years, it becomes hard for people to believe that they are dealing with a court that’s sitting on top of a real system of law.

JW: You have said that, to the extent that the justices’ behavior undermines the public trust in the institution and increases calls for structural change, you’re in favor of certain reforms.

DA: Objectively, there is really nothing to recommend our approach of life tenure, in which justices increasingly hold these key decision-making roles for 30 or more years. It is quite important that justices remain genuinely independent of any influence based on threat of premature termination or any other sort of coercion. But that is perfectly consistent with a set term — perhaps of 18 years. There’s no good argument for saying the justices ought to be deciding these cases until they drop dead, or even after they become senile. And that’s why this approach is nearly unheard of in the world. I recall as a law clerk hearing Justice Rehnquist say that 15 years is long enough for a Supreme Court justice to be able to serve. This was five years into his time there. Of course, he ended up staying for almost 34 years.

The questions about term limits are not about whether it is a much more desirable system, but about its precise form and how it can be accomplished. There are debatable questions about the legitimacy of doing it by statute, and there are different ways of doing it by statute. Or maybe, some argue, you need a constitutional amendment. At that point the discussion tends to be diverted to the challenges inherent in adopting an amendment. Instead of bogging down in that quagmire, we should be focusing on the fact that term limits would be a huge benefit to the functioning of the Court and get on with figuring out how to get it done.

JW: What about adding justices?

DA: I think any effort to just pack the Supreme Court would greatly aggravate the rampant cynicism that people now feel about the court. Any reforms should be careful changes that are actually real improvements in the way the Supreme Court and its processes would work.

JW: Are there any other reforms you think would be valuable?

DA: I think one that is an absolute no-brainer would be clear ethical rules that are independently enforceable by the judicial council or its designee. Not doing this is the cause of a recurring self-inflicted wound that is hard to fathom.

JW: And there is the always-present pressure to show a “proper” respect to the Court, because it’s the Supreme Court.

Talking about the Supreme Court is difficult for me, because we all want it to be okay, and increasingly I worry that it really is not okay. The court is moving too fast toward a vision of the country that six of them seem mostly to share, but which departs materially from key principles that the Court has formulated in the past, by processes of reflection and deliberation that made sense at the time. And it has done so often by simply dismissing and overruling precedents, but as often by ignoring them and mischaracterizing what is going on.

In the face of this, I hear a lot of commentary that takes what the court is doing these days in stride, and implicitly if not explicitly conveys a message that things are okay. I do think they will be okay, but it isn’t because things are in very good shape. I think people need to point out how really unprincipled this stuff is.

What I’m Reading

I hope you’ll forgive my self-indulgence this week as I take over this section to tell you about my new book, The Lost Founder: James Wilson and the Forgotten Fight for a People’s Constitution, which is being published by Celadon Books on Tuesday.

Support independent bookstores and order your copy today!

The Lost Founder is the first mainstream biography of James Wilson, the most democratic of all the American founders.

Bookpage, in a starred review, said: “This absorbing and enlightening work offers abundant riches as we celebrate the 250th anniversary of our nation’s founding and reflect on the people instrumental to its success.”

Publishers Weekly calls it “a robust intellectual biography of a fascinating, many-sided figure.” (PW also featured the book in its list of 10 books for understanding America at 250.)

Kirkus Reviews calls it “a genuinely fresh look at the birth of the Constitution.”

Wilson has captivated me since I stumbled on him while working on my book on the Electoral College. As I read over James Madison’s notes from the 1787 constitutional convention, this long-winded Scot kept grabbing my attention with his shockingly modern ideas on the importance of popular sovereignty, political equality, and broad participation in government.

At the 1787 convention, Wilson was the strongest and most persistent advocate for a popularly elected president. He insisted on a Senate that was elected by the people, and that represented them, not states. He fought against slavery, in favor of more lenient rules for officeholding by immigrants, for more equality for women, and for the principle of one person, one vote. He wrote the first draft of the Constitution and inserted its immortal opening words — “We the People” — to emphasize who always should come first in our system of government.

I’m very excited for this book — the first biography of Wilson in more than half a century and the first-ever mainstream biography of him. I began it in the weeks surrounding January 6 and have been working on it for the last five years, a time in American history when I think we are all rightly wondering how much longer this grand experiment will last. My hope is that by resurrecting Wilson and putting him back in his proper place, as the founding’s biggest advocate for popular rule and political equality, we can have a fuller debate about how America should advance into its next 250 years.

Please come out and see me talk about it in person; I’ll be on tour over the coming weeks, visiting New York City, Washington DC, Atlanta, northern Vermont, the Bay Area, Boston, Ohio, Denver and more.

Or you can listen to me talk about it now on NPR’s Fresh Air, which had me on last week to discuss the book. I also have pieces in The Atlantic (here) and The New York Times (upcoming this week) which touch on various aspects of Wilson’s life story.

Get the details on events, reviews and more at my site, jessewegman.com.

Thanks as always for reading and engaging!

Jesse

• • •

PRAISE FOR THE LOST FOUNDER:

“Jesse Wegman has written a gripping and deeply researched work of American history. . . . The Lost Founder restores Wilson to his rightful place and challenges us to reconsider what popular sovereignty really means.”
—Ken Burns

“James Wilson has finally gotten his due as a major framer of the U.S. Constitution. Jesse Wegman’s spellbinding and erudite biography, revealing Wilson’s crucial and often cantankerous role as America’s most democratic founder, could not arrive at a better time.”
—Jill Lepore

“With insight and eloquence, Jesse Wegman has done heroic work in bringing a vital but obscure architect of America back into the popular conversation.”
—Jon Meacham

• • •

“The truth is that, in our governments, the supreme, absolute and uncontrollable power remains in the people. As our Constitutions are superior to our legislatures, so the people are superior to our Constitutions. . . . The consequence is that the people may change the Constitutions whenever and however they please. This is a right of which no positive institution can ever deprive them.”
—James Wilson, 1787

IMAGE: Pool/Getty

This week I want to introduce you to a Supreme Court justice and American founder you likely haven’t heard of, although I hope that’s about to change with my new book, The Lost Founder. It is the first mainstream biography of James Wilson, the most democratic of all the founders and a visionary who saw the future of America more clearly than any of his peers.

Wilson was born in 1742 to a poor farming family in the Scottish lowlands. He was raised to be a minister, but instead crossed the sea to America in 1765, where he quickly became one of the leading voices for independence. Thanks to his upbringing, which trained him in democratic principles through school and the church, Wilson was uniquely positioned to argue on behalf of a country more democratic than any of his fellow founders dared to imagine.

Driven by that worldview, he wrote an essay that multiple historians believe inspired the preamble of the Declaration of Independence, he wrote the first draft of the Constitution — including the immortal opening words “We the People,” to emphasize who was ultimately in charge — and he was named to the first Supreme Court by George Washington. By 1790, he was one of the wealthiest and most respected men in the country, sitting atop the pinnacle of American political and legal life. Less than a decade later, he was dead, a victim of malaria he caught while hiding out in the back room of a tavern in coastal North Carolina. A reckless and compulsive speculator in lands, Wilson spent his last years buried under a mountain of debt, on the run from his creditors and the law, even while he was still a sitting justice of the Supreme Court.

The Lost Founder will be published on June 23 by Celadon Books, but I’m giving my newsletter readers a small early taste of it here, with a few excerpts from the final chapter. As a response to the overly tidy histories preferred by many who call themselves originalists, I am highlighting the complexity and pathos that defined so many of our famous founders’ lives. We begin in 1796 Philadelphia, two and a half years before Wilson’s demise.

• • •

The year 1796 started badly for Wilson, and then it got worse.

In March, George Washington denied him the chief justiceship for the second time. The position had been open for nine months by then, and Washington had multiple chances to offer Wilson the job. But Wilson’s disastrous finances were now widely known, and the president had no desire to expose the leadership of a coordinate branch of government to chaos and imputations of corruption.

Meanwhile, Wilson’s law students—­who, like the president’s nephew Bushrod, had paid dearly for the privilege of studying with the greatest lawyer in the nation—­found him to be absent or distracted most of the time. As a teacher, he had grown “rare, distant and reserved . . . almost useless,” according to the recollections of one former student, Samuel Sitgreaves.

By the summer, the American economy was in full-­blown crisis after the bubble burst in land values, upending credit markets and causing a national panic. Wilson and other major speculators like Robert Morris, who had been the wealthiest man in America, began to default on their loans.

“Ruin is staring in ye faces of most of ye land speculators,” Edward Burd, an elite Philadelphia lawyer, wrote to Jasper Yeates, a state supreme court justice and longtime associate of Wilson’s. “The day of reckoning is at hand, and no prospect of disposing of their lands. There are a great number of judgments against your friend Wilson lately confessed by him. People speak very freely as to the situation he is likely to be in very shortly.” . . .

His friend Benjamin Rush wrote that Wilson was “deeply distressed; his resource was reading novels constantly.” He skipped the entire fall term of the Supreme Court.

By December, the biggest speculators in Philadelphia were leaving town or getting locked up. “This place furnishes indication of great depravity; bankruptcies are frequently happening,” Chauncey Goodrich, a Connecticut congressman, wrote to treasury secretary Oliver Wolcott about the financial panic of 1796. “Mr. Morris is greatly embarrassed. ’Tis said that Nicholson has fled to England; that Judge Wilson has been to gaol and is out on bail; but there are so many rumors I vouch for the credit of neither.”

The rumor about Wilson, at least, was true, according to Morris. “Judge W- n was taken by the Sheriff last night,” he wrote to Nicholson on December 8. “It will be my turn next.” He added, “I am seriously uneasy for W-­ l- ­n’s affair will make the Vultures more keen after me.”

As 1797 dawned, Wilson’s finances were becoming only more entangled. One of his biggest creditors, Pierce Butler, had begun pressing him for repayment of a debt that was approaching two hundred thousand dollars and growing by the day. In late winter, Butler’s friend James Gibson reported back to him on Wilson’s condition. “The prospect before him is very gloomy,” Gibson wrote. “It is impossible at present to foretell the final issue.” Wilson was present for the court’s February 1797 term, but his attendance was no longer reliable. Many sittings of courts in his circuit could not be held because he never showed.

. . . When the August term of the Supreme Court opened, Wilson was not in his seat. “All the Judges are here but Wilson who unfortunately is in a manner absconding from his creditors, his Wife with him, the rest of the Family here!” Iredell wrote to his Hannah. “What a situation!”

Wilson didn’t get far, and staying so close to the Philadelphia area made it easy for his creditors to find him. Samuel Wallis, a fellow speculator to whom Wilson owed $120,000, tracked him down in Burlington, New Jersey, and demanded repayment. Wilson said he did not have the full amount in cash but offered to pay either half or to give Wallis lands equaling the total value. The men decided to leave matters as they were for the time being, planning to meet again and finalize a deal.

Weeks later, two of Wilson’s other creditors, Simon Gratz and Isaac Hopper, found him still in Burlington, but they were not as conciliatory as Wallis. They had him thrown in debtors’ prison. The news spread quickly.

“What shall we come to?” Thomas Shippen wrote in his diary. “One of the highest Court in the United States, one of the 6 Judges in a Jersey Gaol!”

George Washington, back home at Mount Vernon after leaving the White House, must have felt a sad sense of vindication. In a letter to Henry Lee, he mentioned as an aside, “I had declined receiving Wilson’s notes when they were proposed, because I could not depend upon converting them into cash.”

On September 6, Wilson sent another letter to [his son] Bird, this time from behind bars, and with less patience than before. He mentioned that Samuel Wallis had written to him seeking repayment, which led Wilson to express “my extreme astonishment at your not coming here before this time. At all events set out as soon as you possibly can upon receiving this letter; tomorrow morning at the latest,” he wrote. He needed six hundred dollars for bail, he told Bird, as well as “some shirts and stockings. I want them exceedingly, as also money as much as possible, without which I cannot leave this place.”

Bird came up with the funds somehow, because when circuit-riding assignments were handed out for the fall of 1797, Wilson was out of prison and explicitly requesting the southern route—­the most arduous of the three and the one all the justices took pains to avoid. He had ridden it only once before, but now getting away from the North and his creditors was his best hope to avoid recapture and imprisonment. It also would give him an opportunity to canvass the lands he had purchased in the Carolinas and Georgia and to reorganize his finances. The last months of 1797 and into 1798 marked the frantic downward spiral of a man who had largely lost contact with reality.

[In December,] he wrote Bird to ask why he was not providing more updates about his debts and business situation. “To this Day I have not heard a single Syllable from you,” Wilson complained, a notable echo of the complaints his mother and relatives had made about him for years. He told Bird to meet him in Edenton, North Carolina, the home of James and Hannah Iredell, which offered a sanctuary of sorts. “I need not tell you to bring with you all the Money that shall be possible,” he closed his letter to Bird. “I have many things to say to you, which cannot be communicated by letter.”

Meanwhile in Edenton, Wilson was frantically trying to stave off Pierce Butler’s demands for repayment and his threats to sue him and have him taken into custody for the $197,000 he owed. But Butler was still trying to give Wilson a way out, offering him two to three years to make the payments, as long as Wilson put up his property in Pennsylvania as security.

The few people who would still consider doing business with Wilson consulted with each other about what to do. “I beseech you not to be his security,” Thomas Blount, a North Carolina lawmaker and landowner, wrote to his brother John. “He has no real estate anywhere that is not encumbered with at least one mortgage, & if you rely on his honor, or trust him in any thing, he will certainly deceive you. Let him go to gaol.” Another Blount brother, Jacob, was skeptical that Butler’s threats would do any good. “In my opinion it is bad policy to sue him, he having no property that can be got hold of,” Jacob wrote to John Gray. Jacob thought Wilson would be so upset by any legal action that he would double down and refuse to pay. “If he is sued[,] not being able to procure security will probably make a finish of him and the debt finally lost.”

But on April 10, a writ of debt was issued against Wilson, ordering him to pay Butler, with a court date set for October 6. Writing to Bird again to inform him of Butler’s lawsuit, Wilson said it would force him to remain in North Carolina until it was resolved.

By May, Wilson had made no progress in satisfying the debt and was full of self-pity. “I have been hunted—I may be hunted—­like a wild beast,” he wrote to Thomas, his lawyer. His creditors were after him “with an avidity cruel, treacherous and insatiable.” Still, he insisted he would satisfy all debts and refused to relinquish his optimism. “I think there is reason to believe that the season is approaching when such exertions may be crowned with the most abundant success.” In closing, he wrote, “My life has not been a life of idleness or indolence. But there are times, when nothing, not ruinous, can be done. Such times I have unfortunately experienced.”

From The Lost Founder by Jesse Wegman. Copyright © 2026 by the author and reprinted with permission of Celadon Books, a division of Macmillan Publishing Group, LLC.

What I’m Reading

For this week’s outside-the-box entry, Justin Briley in Liberal Currents calls to break up the Supreme Court. In short, that means doubling the number of federal appeals courts and assigning cases to nine federal judges drawn at random. It would be “an entirely new vision for Article III,” Briley writes, “one that embodies our traditions of justice and democracy far better than the First Street mystery cult.”

In SCOTUSblog, Erwin Chemerinsky, dean of the UC Berkeley School of Law, goes through Justice Clarence Thomas’s opinions, many of which dismiss longstanding precedent, and finds him to be “easily one of the most radical to ever serve on the court.”

As part of a 250th-anniversary initiative called In Pursuit, former President Barack Obama meditates on the example of Abraham Lincoln, who understood better than perhaps any president before or since “that democracies endure not only because of constitutions or armies, but because free people choose, again and again, to bind their fates together.”

In her always entertaining newsletter, Study Marry Kill, historian Alexis Coe goes to town on Joe and Jill Biden and the incalculable damage they caused with their denials about the former president’s mental fitness following his disastrous presidential debate. Coe, the author of a superb biography of George Washington, writes, “I like my subjects good and dead for a variety of reasons, and Jill Biden has recently reminded me of one: they can’t look you in the eye and ask you to doubt what you plainly witnessed.”

In The Atlantic, the historian Michael Kazin calls for people on the left to reclaim the mantle of American patriotism, which he argues has been hoarded by those on the right for far too long. Cataloging the long history of progressives who openly embraced American ideals, he concludes, “A left that rejects [a] vigorous, hopeful, empathetic breed of patriotism is a left that can never win the country to its side.”

IMAGE: Public Domain/U.S. Government

How much power should a president have?

It’s one of the foundational questions of the American experiment, debated at length (and never fully resolved) by the framers of the Constitution in 1787, their antagonists, and Americans down through the generations. At some point in the coming weeks, the Supreme Court will weigh in on it once again, and once again the right-wing majority appears determined to give us an answer that was neither intended by the founders nor desired by modern Americans.

The case at the heart of the present debate, Trump v. Slaughter, involves President Trump’s attempt to fire Rebecca Kelly Slaughter, a Democratic commissioner on the Federal Trade Commission whom he had appointed to the job during his first term. One of five commissioners (no more than three can be of the same party), Slaughter was re-nominated to a second seven-year term by President Biden in 2023.

Soon after Trump returned to power last year, he fired Slaughter and another commissioner, Alvaro Bedoya, both Democrats, claiming he had the authority to do so without cause. This violated a 90-year-old Supreme Court case, Humphrey’s Executor v. United States, which held that the law creating the FTC made clear that independent agency officials like those appointed to the FTC can be removed only for “inefficiency, neglect of duty, or malfeasance in office.” Trump did not allege anything like this against Slaughter, so lower federal courts, relying on Humphrey’s Executor, reinstated her.1

Alas, like so many long relied-upon precedents that have come before the Court in the past few years, Humphrey’s Executor seems destined for the trash heap. That was clear as soon as the Supreme Court relied on the shadow docket to stay the lower courts’ rulings reinstating Slaughter; Humphrey’s, after all, remains good law, and was directly on point. During oral arguments in December, Chief Justice John Roberts and the other right-wingers showed no qualms about, at a minimum, reinterpreting the 1935 case to allow the president to fire commissioners at the FTC (and many other agencies) for any reason he likes.

The rationale for the Court’s ultimate decision will rest at least in part on what’s known as the unitary executive theory, which asserts that because “the executive power” is “vested” in the president by Article II of the Constitution and because the president must “take care that the laws be faithfully executed,” he or she has essentially unlimited power to fire anyone in the executive branch. As Justice Elena Kagan said at oral argument last December, a ruling for Trump would “put massive, uncontrolled, unchecked power in the hands of the president.”

There are at least two big problems with the unitary executive theory. First, despite having a serious-sounding name, it’s completely made up — unmoored from the history and tradition that the right-wing justices claim to be guided by in so many of their opinions.

In fact, the Constitution says nothing about the president’s power to remove executive branch officials, a silence that has been filled from the earliest days of the nation “with a cacophony of disagreement and competing positions,” write Jonathan Gienapp and Andrea Scoseria Katz, two law professors who filed an amicus brief in the Slaughter case. Gienapp and Katz quote John Adams, who as president declined to jettison his political adversaries, even in the face of intense pressure from his allies. Doing so for nothing but a partisan reason, he said, would be “harsh and odious” and would “indicate an irritable, hasty, and vindictive temper.”

For most of the nation’s history, it was generally understood that Congress had the authority to regulate the president’s power to remove executive branch officials. Presidents accepted this arrangement by signing laws that included such regulations and by tolerating the existence of independent agencies for the past 150 years, as another amicus brief, by a historian represented by the Brennan Center, lays out.

Past Supreme Courts would have been strongly influenced by evidence of decades of mutual accommodation and power-sharing worked out between the other two branches of government. But Roberts and his right-wing colleagues are rarely swayed by evidence that doesn’t point them where they already want to go.

So where does the unitary executive theory come from, if not the founding? It rose up, like Donald Trump, in a more recent era: the 1980s. While the future president was rapidly making his name and fortune in New York City real estate, hungry young staffers in the Reagan Justice Department (including a 20-something John Roberts) were devising new ways to counter decades of Democratic rule in Congress and the White House. As they saw it, Democratic dominance helped stack executive agencies with liberals who believed in a more expansive and efficient federal government and who opposed the deregulatory revolution pushed by Reagan and his acolytes. An executive with the power to root out these roadblocks would give Republicans more power in their fight against the administrative state.

The unitary executive theory is so groundless that one leading originalist felt compelled to call it out before oral arguments last fall. “Both the text and the history of Article II are far more equivocal than the current Court has been suggesting,” Caleb Nelson, a law professor at the University of Virginia (and former law clerk to Justice Clarence Thomas) wrote in an eye-opening piece that triggered a cascade of originalist soul-searching. “The Take Care Clause does not imply that the President must be able to fire all executive officials at will, any more than it guarantees the President the ability to imprison officials who do not do what the President says.”

If the Court ignores this analysis, along with the historical evidence, and votes for a strong version of the unitary-executive theory, Nelson wrote, they will be giving the president “more power, I think, than any sensible person should want anyone to have, and more power than any member of the founding generation could have anticipated.”

Of course, let’s not forget this is the same Court that in 2024 gave the president near-total immunity for any crimes he or she might commit while in office — a decision that was similarly detached from the actual positions of the nation’s founders, including those who fought for a powerful executive, as an amicus brief by leading American historians organized by the Brennan Center explained.

I mentioned earlier that there are two big problems with the unitary executive theory. The second one is that regardless of its pedigree, it is so broad that it can’t actually be implemented consistently. Consider another case the Court agreed to decide this term, and which is likely to be delivered the same day as Slaughter: Trump v. Cook. Last year, Trump claimed the power to fire Lisa Cook, a member of the Federal Reserve Board. Based on the oral arguments in that case, it appears that a majority of the Court is prepared to reject the president’s claim of authority. How can that be, if the unitary executive theory means what it claims to mean? The answer is that this is the most pro-business Supreme Court in a century, and whatever reason they serve up in their opinion protecting Cook, the real reason is that they’re not about to let the president nuke the economy. In other words, they like expanding executive power in the service of deregulation, but not when it might injure corporate America.

Perhaps the most galling part of all this is the timing: The Court is forging ahead with its executive-aggrandizement project at the same moment that the White House is controlled by the most lawless, erratic and corrupt president in the nation’s history.

The framers would have been horrified, but they might not have been surprised. One June day in 1787, as the delegates to the constitutional convention debated the nature of the powers they should confer on a chief executive, Benjamin Franklin speculated on the inherent risks involved.

“The first man put at the helm will be a good one,” he said, referring to George Washington, who was widely expected to win the first election. “Nobody knows what sort may come afterwards. The Executive will be always increasing here, as elsewhere, till it ends in a Monarchy.”

Nearly 250 years later, the Supreme Court is doing what it can to make Franklin’s prediction come true.

What I’m Reading

Brian Beutler’s newsletter, Off Message, is required reading for thinking about governing America in a post-Trump era. His argument this week is that the lesson of the previous (failed) Trump impeachments is not to shy away, but to “impeach harder and faster.”

In The New York Times, Katya Ungerman writes about how the confluence of AI and institutional decay has made modern life “feel governed by forces beyond our understanding, by knowledge that is unverifiable and by authority that is distant and suspect. It is, in a word, beginning to feel medieval.”

Also in the Times, Amanda Taub explores how authoritarianism thrives on mediocrity. “The kinds of career pressures familiar to employees everywhere . . . can be enough to incentivize lower- and midlevel officials to violate professional obligations, fundamental norms and even basic morality.”

The New Yorker has a lovely and brief piece on John Feerick, the near-nonagenarian law professor and primary author of the 25th Amendment, which sets out the modern terms of presidential succession. In addition to talking about when presidents are incapacitated, Feerick drops little gems like this, about one of his visits to the White House: “I got there late because the planes weren’t running. And I walked right up to the White House from the gate! I opened the door of the White House. Which I guess would be impossible today.”

Beau Baumann, a constitutional law professor at the University of Utah, writes of the crucial “knowledge-production game” at the heart of legal scholarship, and what to do when a member of the academy openly violates the unwritten rules of that game.

IMAGE: MicroStockHub/Getty

Today I’m going to talk about a potential Supreme Court reform that has not gotten as much attention as term limits, expansion, and ethics rules, but which may be as effective as any of them in putting the Court in its proper place in American democracy: a consensus requirement.

I have been thinking about this reform in the wake of last month’s gut-punch of a ruling in Louisiana v. Callais and its cavalier disembowelment of one of the most significant and consequential federal laws in American history. The aftershocks of the decision continue to reverberate, with Republican legislatures across the South racing to redraw their maps not only mid-decade but literally mid-election, all with the Court’s open encouragement. It’s so brazen that I’ve wondered, if the right-wing justices actually wanted Congress to assert its inherent constitutional powers and rein them in, would they be doing anything differently?

I wonder this because the Voting Rights Act is not your average piece of congressional legislation. The “crown jewel” of the civil rights movement, it was first passed in 1965, triggering immediate and dramatic improvement of Black voting rates throughout the South. Congress reauthorized it in 1970, then again in 1975, then again in 1982, then again in 2006 — during periods of both Republican and Democratic rule in Washington, and often with bipartisan supermajorities.

The last time, in 2006, the House Judiciary Committee itself “assembled over 12,000 pages of testimony, documentary evidence and appendices from over 60 groups and individuals.” In its report, the committee explained its support for another reauthorization, saying that “40 years have not been a sufficient amount of time to eliminate the vestiges of discrimination following nearly 100 years of disregard for the dictates of the 15th Amendment and to ensure that the right of all citizens to vote is protected as guaranteed by the Constitution.” The 2006 reauthorization vote passed the House by 390–33, and the Senate by 98–0. It was signed into law by President George W. Bush.

In short, there may be no more emphatic, enduring or bipartisan expression of the American popular will than the Voting Rights Act. And that compounds the insult of its dismantling by the right-wing justices over the past decade and a half, beginning in 2013 with Shelby County v. Holder, continuing in 2021 with Brnovich v. Democratic National Committee, and culminating in April with Callais. All these rulings were 5–4 or 6–3, and all with every Republican appointee in the majority and every Democratic appointee in the minority.

My feeling as I recount this history is, How dare they? How dare this cabal of unelected, life-tenured lawyers reject decades of careful research, analysis, and open debate by the people’s representatives because, so they claim, racism in America isn’t a real issue anymore?

The entire Voting Rights Act–demolition project has been shot through with contempt from the start. I still remember Justice Antonin Scalia invoking the Senate’s unanimous 2006 vote to reauthorize the act during oral arguments in the Shelby County case. He did so not to acknowledge how remarkable it is for the Senate to be unanimous about anything, but to deploy that unanimity as a sword against the law. The overwhelming support for the act even throughout the South, Scalia mused, was not genuine, but “very likely attributable to a phenomenon that is called perpetuation of racial entitlement.” He went on, “Even the name of it is wonderful: the ‘Voting Rights Act.’ Who is going to vote against that in the future?”

It was the judicial version of swiftboating: transforming an opponent’s strength into a weakness. Still, let’s give him the benefit of the doubt and imagine he was right. So what? It is not the job of the justices to second-guess a federal law just because they don’t like it, or because they believe the lawmakers felt peer pressure to vote for it.

The sneering tone may have died with Scalia, but the right-wing justices’ overall disdain for the Voting Rights Act did not. Along with the Trump administration, two branches of the federal government are now openly hostile to democracy. They are practically inviting Congress to do something, anything, to stop them.

To help think through the options out there, I spoke to Daphna Renan, a law professor at Harvard and co-author, with her colleague Nikolas Bowie, of the upcoming Supremacy: How Rule by the Court Replaced Government by the People, about the Court’s treatment of the Voting Rights Act. “Congresses across history and multiple presidents and many thousands of people’s blood, sweat, and tears, thought it was a crucial rule for democracy. Why should Sam Alito get to decide that it’s not?” Renan asked.

He shouldn’t. Or, at least, not without convincing more of his colleagues. Renan and Bowie make the case that Congress can impose what they call a “consensus requirement” on the justices. That is, the Court has the power to strike down an act of Congress, in whole or in part, but it can’t be by a one- or two-justice majority. It must be by a vote of 7–2, or 8–1, or even 9–0.

As Renan and Bowie wrote in a recent New York Times essay, this would ensure that laws would be struck down by the Court only when their unconstitutionality was “beyond honest dispute.”

The argument in favor of a consensus (also called supermajority) requirement is straightforward: Certain decisions involve matters of sufficient gravity that they demand a higher bar be cleared before they are made. The Constitution already requires supermajorities in many well-known contexts, such as amendments, which must be approved by two-thirds of both houses of Congress and three-quarters of the states, or criminal jury verdicts, which must be unanimous to convict.1 Two-thirds of Congress is required to override a presidential veto, and two-thirds of the Senate is required to obtain a conviction in impeachment proceedings (as Americans have been reminded multiple times in recent years). Requirements like these are onerous, and they raise legitimate concerns in a society otherwise based on majority rule. We accept them nonetheless, because we understand that a representative democracy benefits from requiring extra consideration and deliberation in special circumstances.

It’s hard to make the case that this rationale doesn’t apply with at least equal force to a decision by the Supreme Court that rejects a law duly passed by the elected representatives of all Americans and signed by the president. Not to mention the Senate’s self-imposed supermajority requirement, the filibuster, which both the Civil Rights and Voting Rights Acts (among many other major laws) had to overcome in order to pass, leading to our upside-down world in which the people’s 535 elected representatives are held to a stricter standard to pass a law than nine unelected lawyers are to overturn it.

To be fair, a supermajority requirement would not have applied to the Court’s ruling in Callais, which did not strike down Section 2 but purported merely to reinterpret it. It would, however, have applied to the rulings in Shelby County and other democracy-related cases, like Citizens United v. Federal Election Commission, in which the Court struck down federal laws (or parts of federal laws) as unconstitutional. If you think I’m just gunning for decisions I disagree with, this requirement would also have applied to the Court’s 5–4 invalidation of the Defense of Marriage Act in 2013, which I (like most liberals) was happy to see overturned. The point is that whoever’s ox is gored, it is good for the balance of powers if the Court feels more pressure to come to consensus when striking down the acts of another branch. This is all the more so on a Court that is so ideologically divided as our current one. And the requirement would incentivize the justices to decide more cases on statutory grounds (thereby avoiding the consensus requirement), giving Congress the opportunity to go back and fix whatever problems the Court identified.

Reasonable people can debate the legality and practicality of this idea, as they did thoughtfully in President Biden’s Supreme Court Commission Report from 2021. Still, in a moment of existential crisis for the Court, I am inclined to give it a shot. Article III of the Constitution, which establishes the Supreme Court, says nothing about voting rules, only that the Court may exercise its appellate jurisdiction subject to “such Exceptions, and under such Regulations as the Congress shall make.” Congress has also used its powers under the Necessary and Proper Clause to set, among other things, the Court’s size and the starting date of its annual term.

Anyway, this is not the first time the idea has been floated; starting in 1823, there have been scores of bills introduced in Congress that would impose a supermajority voting requirement on the Court when it considers challenges to federal (and sometimes state) laws. None has yet passed, although at least three states — Nebraska, North Dakota, and Ohio — have imposed such requirements on their own supreme courts.

The point of a consensus requirement is not to prevent the Court from deciding constitutional questions, but to make the justices work harder if they are going to strike down a law written and enacted by the people’s elected representatives. Since Marbury v. Madison in 1803, the Supreme Court has claimed the power to “say what the law is.” Congress should not be afraid to tell the justices that sometimes, they have to say it louder.

Would the Court nevertheless strike down a consensus requirement? “Quite plausible,” the Biden Commission concluded. That may be so, but it’s no reason to sit back and let the Court run amok. I don’t know about you, but I’m excited at the prospect of a comprehensive reset of American government. The current Court has arrogated power to itself for long enough, with increasingly devastating consequences for democracy and equality. It’s time for Congress to step up. As Franklin Delano Roosevelt might tell you, you never know what power you have if you don’t try to assert it.

What I’m Reading

My colleague Ashleigh Maciolek offers an important reminder that Clarence Thomas’s ascension to the number-two spot on the longest-serving justices list (behind only William O. Douglas) must be viewed in the larger context of his persistent ethical lapses.

In The New York Times, Jennifer Schuessler reports on the dilemma historians of the American founding face in the lead-up to the nation’s 250th birthday in July. One asks, “Are we just dinosaurs who haven’t realized the history profession is doomed?”

It’s a few years old, but this piece by Guy-Uriel E. Charles and Luis E. Fuentes-Rohwer in the journal Democracy accurately predicted that Section 2 of the Voting Rights Act was “operating on borrowed time.” Anticipating its demise, the authors call for the United States to join most advanced democracies in adopting a system of proportional representation.

And here’s a post from last week by Lee Drutman, one of my favorite political scientists, making the same point, but in greater detail. (Sorry for the duplication, but proportional representation is that important!)

In The Atlantic, Amanda L. Tyler surveys the long history of efforts to eliminate birthright citizenship. What used to come from “fringe elements of American society,” she writes, is now the official position of the White House.

Don Moynihan, a public policy professor at the University of Michigan, poses a bracing test for those concerned about the future of democracy: “Remember when you read a book or watched a movie about the 1930s, and you asked yourself ‘what would I have done under these conditions?’ The answer is: whatever you are doing now.”

IMAGE: Alex Wong/Getty

Among the many insults of the Supreme Court’s Wednesday ruling in Louisiana v. Callais eviscerating the last functional provision of the Voting Rights Act, one in particular stuck out to me.

It appeared in the final lines of the majority opinion by Samuel Alito. “While the dissent wraps itself in the mantle of stare decisis,” Justice Alito wrote, using the Latin term for the Court’s longstanding practice of abiding by its prior rulings, “the dissent is unabashedly at war with key precedents.” Alito then identified the precedents he was thinking of: Shelby County v. Holder, Rucho v. Common Cause, and Brnovich v. Democratic National Committee.

A quick refresher: Shelby County, from 2013, was the first crippling blow to the Voting Rights Act; Rucho, from 2019, denied the Court’s protection to Americans whose votes have been erased by partisan gerrymandering; and Brnovich, from 2021, created new standards to undermine Section 2, the same provision at issue in Callais this week.

Do you see a pattern? These cases were all decided in the last 13 years, all by the Roberts Court, and all part of the right-wing justices’ long project to undermine the voting rights of millions of Americans, especially those who happen to be Black and/or vote for Democrats. Alito was in the majority for all three, and he wrote the majority opinion in Brnovich.

In conclusion, Alito wrote, “Respect for precedent cannot be a one-way street.”

The point of respecting precedent, of course, is to provide stability and predictability to the Court’s decisions and to buttress the Court’s legitimacy with the American people not only year to year, but for generations. That’s not what Alito was doing here. In citing these specific cases and demanding “respect” for them as precedent, he was dunking on the dissenters, and on the millions of Americans who cherish (or cherished) the Voting Rights Act.

Gaze at what we have done, he was saying. And what we will keep doing, because we have the votes. This mirrors the logic of the opinions in these cases, not to mention the very manner in which the current supermajority was assembled, which is that brute power is all that matters. If you can amass enough of it, if you can corral the votes to win (however you may have to accomplish that), who’s going to stop you?

That is why, as the Court’s radical right has become increasingly entrenched, it has become increasingly self-referential. They are constructing a world of their own, untethered from modern American life, from previous Court rulings and from the Constitution itself. They can cite themselves approvingly and call it a day.

Indeed, the last time Alito considered a monumental precedent — Roe v. Wade, which the Court struck down in 2022 — he casually dismissed not only the justices who wrote it in 1973, but all those who voted to uphold it over the intervening half century. The opinion had been “egregiously wrong” the moment it came down, he wrote. Generations of justices, Republican and Democratic appointees alike, were not just wrong; they were egregiously so.

In a profession that already tolerates outsized egos, this attitude raises the bar. The only precedents that really matter are those you have established yourself.

What makes it that much harder to take is that their opinions are among the least defensible in recent history. Opponents of Roe v. Wade ranted for decades about its lack of constitutional grounding, about the “penumbras” and “emanations” the ruling found in the Bill of Rights that magically guaranteed a woman’s right to bodily autonomy; but in Shelby County, Chief Justice John Roberts and the majority relied on a principle, “equal state sovereignty,” that they just made up. (Even as they disregarded the 15th Amendment’s very clear grant of power to Congress to protect voting rights.) In Rucho, the majority abdicated their most important role, admitting that extreme gerrymanders are “incompatible with democratic principles,” but refusing to lift a finger to stop them. And in Brnovich, they erected brand new hurdles for litigants to clear in order to prevail in Section 2 cases.

They did all this because they could, a mindset that inevitably devolves into a sort of intellectual corruption. You can see the corruption in the blithe disregard for facts, such as when Alito cited demonstrably untrue claims about mail voting fraud in a recent oral argument. You can see it when he relies on misleading “statistics” to defend the decision in Callais, arguing that Black voter turnout was higher than white turnout in two of the last five elections, without noting that those two elections both took place before Shelby County was decided — or that these were the two elections when Barack Obama was running for president.

Kevin Morris, my Brennan Center colleague and a co-author of the forthcoming An American Problem, about the passage of the Voting Rights Act and the Roberts Court’s dismantling of it, described the “bankrupt and sad vision of democracy” that the Callais ruling represents. “These justices think that everything is about power. They can’t conceive of a politics that centers fairness and access above outcomes, or imagine that protecting voting rights could serve an aspirational goal rather than an instrumental one. They think everyone is as cynical as they are.”

This is the Supreme Court we will have for the foreseeable future, unless and until we have the courage to change it.

IMAGE: Anadolu/Getty

Last Tuesday, Virginia became the latest state to join the partisan gerrymandering death spiral. By a narrow margin, the state’s voters opted to give its Democratic-majority legislature the power to redraw congressional districts in such a biased way that Republicans will only be assured of 1 seat in the state’s 11-member delegation, even though in the last election, Republican candidates won more than 47 percent of the statewide vote.

In taking this step, Virginia is following a growing wave of red and blue states across the country that are passing or trying to pass blatantly partisan maps, including Texas, Missouri, Ohio, California, and Florida. The standard take has been that Virginia’s Democrats played “hardball,” that they fought fire with fire. But doing so meant effectively disenfranchising hundreds of thousands of their own state’s Republican voters in the process — just as Republican legislators have done to millions of Democratic voters in multiple other states.

If you are thinking, Hey, this is all extremely unfair!, you would be right. In America, voters are supposed to pick their representatives, not the other way around. One might even say it’s “incompatible with democratic principles,” the words Chief Justice John Roberts used in a 2019 case to describe this age-old practice.

Surely the chief justice harnessed the Court’s unique and awesome power to outlaw such anti-democratic behavior? If only. Roberts, along with four Republican-appointed justices, stared down one of the most egregiously partisan gerrymanders in history and ruled that . . . the Court could do nothing about it. In short, our partisan-gerrymandering nightmare is getting worse by the day, and it’s the Supreme Court’s fault.

In that 2019 case, Rucho v. Common Cause, North Carolina’s Republican-majority legislature had drawn a congressional map so skewed that it ensured Republicans would win 10 of the state’s 13 seats in Congress, even though Republican House candidates won only a bare majority of the statewide vote. At least they could claim a majority; in 2012, Democratic House candidates won more than 1 million more votes nationwide than Republicans, and yet thanks to partisan gerrymanders, Republicans ended up with 33 more seats in the House.

Despite such glaring examples, which the 5–4 majority in Rucho agreed “seem unjust,” Roberts said the Court’s hands were tied because the Constitution offers no clear, discernible test to measure whether a given redistricting map is fair. Partisan gerrymandering presented a “political question,” he wrote, that was beyond the reach of the federal courts.

This explanation was laughable at the time; now it’s just tragic. As Justice Elena Kagan wrote in one of my favorite dissents of the 21st century, “For the first time ever, this Court refuses to remedy a constitutional violation because it thinks the task beyond judicial capabilities.”

As Kagan went on to explain, it is not at all beyond their capabilities. “What it says can’t be done has been done,” she wrote, pointing to the clear and workable tests that the lower courts in the North Carolina case had applied in finding that the state’s Republican-skewed maps had violated the Equal Protection Clause.

Indeed, the notion that the Court is somehow unable to apply a test that isn’t readily found in the Constitution’s text is absurd. “What the justices do for a living is to make up tests that are not in the Constitution,” wrote Louis Michael Seidman, a law professor at Georgetown, pointing to, among others, the “strict scrutiny” test, the “compelling state interest test,” and the “undue burden” test. “Are these tests perfect? Of course not. If the Court insisted on perfect tests, it would never adjudicate constitutional claims.”

Seven years on, Rucho is one of those cases I can’t get over. It represents an inexcusable abdication of arguably the Court’s most important job, which is to protect the democratic rights of those who cannot rely on that protection through the political process. Instead, the Roberts Court has done the opposite, gutting federal laws designed to protect voting rights and looking the other way at precisely the moment when its power is most clearly called for.

Until relatively recently, the Court agreed that it should probably do something about the worst partisan gerrymanders, but that was while Justice Anthony Kennedy, who had said as much in a 2004 opinion, was still on the bench. As soon as he retired (after switching his position and joining the Rucho majority), a right-wing supermajority took charge and the current laissez-faire attitude toward partisan gerrymandering kicked in.

The court’s disingenuous refusal to act in Rucho is all the more infuriating because the road map to the opposite outcome was sitting right there: in the Court’s “one person, one vote” cases.

In the early 1960s, Americans were becoming aware of how many congressional districts, especially in the South, had been drawn specifically to enhance the voting power of rural (and whiter) conservatives at the expense of urban and suburban (and racially diverse) voters. This was achieved by drawing districts with wildly different numbers of people. A rural district of 10,000 could have the same voting power as an urban district with many times more people — known as “malapportionment.” In Baker v. Carr, a 1962 ruling written by Justice William J. Brennan Jr. (our namesake for good reason), the Court rejected arguments that malapportionment involved a “political question,” holding 6–2 that it had the power to decide whether districts might be so unfairly drawn that they violate the Equal Protection Clause.

Over the next few years, the Court in a series of rulings established the “one person, one vote” principle, requiring that all congressional and state legislative districts be comprised of essentially equal numbers of people. As the Court explained in 1964, the Equal Protection Clause “guarantees the opportunity for equal participation by all voters in the election,” and that opportunity “can be denied by a debasement or dilution of the weight of a citizen’s vote just as effectively as by wholly prohibiting the free exercise of the franchise.”

What is partisan gerrymandering if not a “debasement or dilution of the weight of a citizen’s vote”?

In short, the 1960s Court did what the Supreme Court is supposed to do, and American democracy has been healthier as a result. Fifty years later, John Roberts and his Republican-appointed colleagues have been doing the opposite, dragging us down into an endless political war that is only going to get worse. What began as extreme partisan gerrymanders has now expanded into mid-decade gerrymanders, as each side races to the bottom.

Virginia Democrats prevailed this time, helping to offset similarly egregious Republican gerrymanders in other states. This is what happens in a war. Each side may win some battles, but there are countless casualties along the way. Here the casualties are the American people, who are increasingly being written out of the electoral process. Even if some gerrymanders backfire, that doesn’t change the bottom line, which is that the central point of representative democracy is being turned on its head.

The Court would say, as it did in Rucho, that the fix for this situation lies in Congress. Certainly that is true as far as it goes, although as the Warren Court recognized, certain defenses of democracy are too important to leave to the political branches alone. After all, the Congress that we would be asking to rein in partisan gerrymandering is the same Congress whose members are increasingly being elected thanks to partisan gerrymanders. So if you’re looking across the smoldering battlefield of American politics in 2026 and asking whom to blame, look to the Roberts Court.

Back in the NY Times

Check out my piece in Sunday’s New York Times, where I returned to my old haunts to weigh in on two justices’ notably different responses to outrage over recent comments they made in public. My takeaway: “Together they offer a revealing glimpse of the state of the Supreme Court, on the verge of momentous rulings in the weeks ahead. Only one justice issued a public apology — the wrong justice.”

WHAT I’M READING

If you have not yet made your way through “The Shadow Papers,” the Times’s must-read, behind-the-scenes account of the origins of the Court’s shadow docket, do so now. Jodi Kantor and Adam Liptak are two of the best in the business, and this is a rare scoop. And see this sharp analysis by my colleagues Alicia Bannon and Ashleigh Maciolek.

A two-fer on the ways in which vast wealth messes people up: First, this thoughtful and well-reported New York magazine piece by Lane Brown, and second, this perfectly disturbing glimpse into one of Jeff Bezos’s weekend “Campfire” retreats by Noah Hawley in The Atlantic. The difference between the Bezos of 2018 and the one of today? Then, “He still believed that his actions had consequences. He had not yet freed himself . . . from the rules of men.”

Also in The Atlantic, don’t miss Sarah Fitzpatrick’s extremely thorough and deeply alarming report on Kash Patel, the heavy-drinking, absentee FBI director, if only to boost the Streisand effect in the wake of his doomed $250 million defamation lawsuit against the magazine.

This one is a listen rather than a read: Yale political theorist Hélène Landemore joins the BBC’s Amol Rajan to talk about “open democracy,” the idea that citizen assemblies are superior to professional politicians in achieving outcomes that most people actually want.

IMAGE: Brandon Bell/Getty

In the first edition of Major Questions, I flagged the dramatic drop in public approval of the current Supreme Court as the most important indicator of the depth of the Court’s self-inflicted crisis:

Public support for the Court, as measured in multiple polls, is at or near an all-time low. Barely one in five Americans today has a great deal of confidence in the Court, down from more than half in 2000, according to an NBC News poll. On the flip side, almost 40 percent feel very little or no confidence, triple the percentage who felt that way a quarter-century ago.

I didn’t linger on this point at the time, but it deserves to be lingered on. One of the more common misconceptions about the Court is that it should pay no heed to the political winds, that the justices should be monkishly devoted to ascertaining this objective thing called “law.” It’s a nice-sounding notion that justices have encouraged over the years, as Justice John Paul Stevens did when he wrote in a 2002 case, “it is the business of judges to be indifferent to unpopularity.” To paraphrase Joe Biden, that’s some premium-grade malarkey.

In fact, the justices are well aware that the public’s confidence in them, and in the Court as an institution, matters immensely. The willingness of the people to submit to the Court’s rulings, even when they don’t agree with them, is central to the whole project of representative democracy. Political scientist James L. Gibson put it well: “Legitimacy is for losers.” It’s easy to accept the outcome when you win, but society survives only when the losers accept the outcome, too. And losers accept outcomes only when they believe the process that led to those outcomes is legitimate.

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For much of American history, the Court enjoyed that legitimacy, which in turn helped to protect the justices from blowback in the aftermath of controversial rulings. Last time, I mentioned Bush v. Gore as a breaking point in the public perception of the Court. I believe that to be true, but it’s also true that within a year of that cataclysmically bad decision, public approval of the Court had rebounded more or less to where it was before.

This resilience is a measure of what political scientists call “diffuse support.” In his indispensable 2009 book on the relationship between public opinion and the Supreme Court, The Will of the People, constitutional law professor Barry Friedman of NYU School of Law distinguishes two types of support, diffuse and specific. The latter refers to public approval that is conditional on the results of given cases: If people like how the justices rule, they support the Court; if they don’t, they don’t. The former, meanwhile, is how institutional legitimacy is sustained — through diffuse support, the public gives the Court a degree of slack to rule at times against what a majority of Americans want. The response to Bush v. Gore is a prime example of this.

How did the Court pull that off? The thesis of Friedman’s book is that the conventional wisdom about the Court and politics is wrong: The justices have historically shored up support by issuing rulings that, sooner or later, line up with “the considered judgment of the American people.” The Court may not “follow th’ iliction returns,” in the famous words of the fictional Martin Dooley, but it rarely strays far from mainstream public opinion.

“The Court will get ahead of the American people on some issues [like the death penalty or school desegregation],” Friedman wrote. “On others, such as gay rights, it will lag behind. But over time . . . the Court and the public will come into basic alliance with each other. In the course of acting thus, the Supreme Court has made itself one of the most popular institutions in American democracy.”

Friedman went on to note that most of the Court’s rulings “meet with great public approval. And even when they do not, the public supports the Court’s right to decide the cases nonetheless.”

It’s striking to read those words today, isn’t it? Only 17 years later, they sound as though they’re from another space-time dimension. I called Friedman to ask him to reflect on the central themes of his book in light of the intervening years.

“I think what changed between the early 2000s and the present is that American politics pretty much went off the rails,” he told me. He meant this not so much in the “commander in chief is threatening to annihilate an entire civilization” sense, but in that it is no longer the case that our elected branches are translating the majority will of the American public into policy. Specifically, millions of Americans’ voices and votes are effectively erased by the combination of an increasingly unrepresentative Senate, an Electoral College that puts popular-vote losers in the White House, and turbocharged partisan gerrymanders that let politicians pick their voters.

This has profound implications for the justices, who have traditionally hewed to mainstream public opinion because they know that if they don’t, there will be consequences. That is, if they anger enough people, it will come back to bite them by way of the political branches, which in theory represent what most people want and which (as I’ve written about previously) have a great deal of power over the Court’s structure, its size, and even the kinds of cases it may hear. But what happens when there are no real threats to the Court’s power or autonomy?

“There are some members of the Court now who are entirely uncaring about public opinion, period,” Friedman told me. “This Court has no fear of retribution for any of its decisions. And they seem to know that.”

In short, the justices are ignoring their usual close relationship to public opinion because they can. By doing so, they are inflicting grave damage on the Court as an institution.

“When you look at those polling numbers, what they’re doing is spending diffuse support,” Friedman told me. In rare instances, that’s a necessary cost to incur. For example, the rulings in Brown v. Board of Education and the one-person-one-vote cases of the 1960s did not have broad public support at the time, but they are now widely considered among the greatest in the Court’s history.

In contrast, Dobbs v. Jackson Women’s Health Organization, which overturned Roe v. Wade in 2022 by a 6–3 vote, is unlikely ever to attain that status. More than 60 percent of Americans continue to support a woman’s right to obtain an abortion, a number that has remained constant for decades. Or take Trump v. United States, the 2024 case in which the Court decided, again by 6–3 and contrary to the position of an overwhelming majority of Americans, that former presidents are essentially immune from criminal prosecution.

The current right-wing majority on the Court has gone so far off the map that it has engendered something like the opposite of diffuse support: Even when the justices hand down broadly popular rulings, like in the Trump tariffs case or what is widely expected to be the result in the birthright citizenship case, a majority of the public continues to disapprove of them.

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So what will it take to bring this Court into line with the American people? Friedman looked at historical instances where the Court drifted too far from the public and found that the most important factor in dragging it back was that any threat the justices faced had to be credible. Franklin Roosevelt’s Court-packing plan in the 1930s did not ultimately succeed, but it was credible enough to force the intransigent justices to reverse themselves and begin to uphold his New Deal legislation. In the mid-1950s, the Warren Court ruled a dozen times in a short period in favor of the civil liberties of communists, infuriating a broad swath of Cold War–era Americans living in fear of Russian infiltration. After legislation to strip the Court of jurisdiction over national security cases came within a few votes of getting through Congress, the Court suddenly started voting against the communists. Message received.

It’s like the scene in The Princess Bride where Wesley, Inigo Montoya, and Fezzik the Giant approach the castle on their quest to free Princess Buttercup. At the entrance, they encounter a guard. “Give us the gate key,” Wesley demands.

“I have no gate key,” the guard responds flatly.

Inigo Montoya turns to the giant. “Fezzik, tear his arms off.”

“Oh, you mean this gate key,” the guard replies.

In sum: The Supreme Court is the castle guard, Congress is Fezzik, and We the People are Inigo Montoya. We can threaten all kinds of good and necessary reforms, but if we want the Court to become aligned with the popular will again, those threats need to be credible. That means, as it always does in a representative democracy, electing the right people. People who want to keep the Supreme Court between the buoys of public opinion and, when it strays, to hold it accountable. The justices must understand that if they don’t change course, Congress and the president, acting on behalf of the people, will utilize their inherent constitutional powers to change it for them. Call it the Fezzik Principle.

What I’m Reading

In Politico, Peter S. Canellos (author of a superb biography of Justice John Marshall Harlan) digs into a nearly forgotten but enormously consequential moment in recent Supreme Court history: George W. Bush’s failed nomination of Harriet Miers in 2005, “a major turning point in the judicial wars” that “effectively ended any hope of compromise over the Supreme Court.”

On his blog Thinking About . . . , scholar of totalitarianism Timothy Snyder connects the dots between Trump’s war against Iran and his efforts to undermine the midterm elections here at home, laying out five plausible scenarios by which Trump could attempt another coup. His conclusion: “Trump is weak, but weakness only matters if it is treated as vulnerability and pushed towards defeat.”

Have a stiff drink or three before reading Antonia Hitchens’s hair-raising, stomach-dropping New Yorker profile of the ultra-ultra-right-wing young men intent on taking over the Republican Party from Trump, who make MAGA seem positively moderate. It’s terrifying. It’s also a tragic story of a country that has essentially abandoned the next generation. “The destiny of a nation is always with the youth,” one college student said. “We did everything right, and nothing worked out.”

In the New York Times opinion section, Steve Vladeck, one of the best and most careful Supreme Court analysts in the country (and author of the unmissable One First newsletter), warns us not to get too excited about the expected outcome in the birthright citizenship case. As he explains, during an earlier stage of this case last year, the Court “made it much harder for lower federal courts to block lawless executive action.”

“Does A.I. Need a Constitution?” Jill Lepore asks in another compelling New Yorker piece, this one about the struggle to impose meaningful guardrails (if not actual morals) around a technology that could soon overtake society. As one tech critic puts it, “I know people who work on A.I. risk who don’t expect their children to make it to high school.”

Why does the United States have such a uniquely bad partisan gerrymandering problem? Because we let self-interested politicians draw the maps, for starters. In this helpful explainer, The New York Times’ Christina Morales lists the main reasons most other modern democracies have no trouble drawing district lines in a fair way. One solution not mentioned: proportional representation!

Please forgive the unrelenting darkness this week; these are scary times. I’ll mix in some lighter pieces next time.

IMAGE: RGR Collection/Alamy

The Supreme Court is badly, dangerously broken.

You may have heard this elsewhere, but as someone who has followed and written about the institution for more than a dozen years at The New York Times, I say it with genuine reluctance. I know how essential the Court is to the stability and functioning of American government. At the same time, based on the increasingly radical and imperious behavior of the current justices over the past several years, it is impossible for me to come to any other conclusion.

The list of the Roberts Court’s offenses is long and growing: unexplained and indecipherable decisions on the so-called shadow docket; the flouting of the most basic ethical standards; the invention of new doctrines (like the one that gives this newsletter its name) in order to overturn, almost always on partisan lines, acts of Congress or the Court’s own precedents that had survived for generations; and a string of destructive, destabilizing rulings that cannot be squared with any reasonable reading of constitutional text and history.

Perhaps the most telling data point comes not from the Court itself; it comes from the American people forced to live under its rule. Public support for the Court, as measured in multiple polls, is at or near an all-time low. Barely one in five Americans today has a great deal of confidence in the Court, down from more than half in 2000, according to an NBC News poll. On the flip side, almost 40 percent feel very little or no confidence, triple the percentage who felt that way a quarter-century ago.

This is a rolling crisis with no clear end in sight. The Court’s nine justices enjoy immense power, getting the final word on many of the most contested legal and political questions in a nation of more than 340 million people. And yet for all that power, the Court runs a remarkably fragile operation. Because it “has no influence over either the sword or the purse,” Alexander Hamilton wrote in Federalist No. 78, it “may truly be said to have neither FORCE nor WILL, but merely judgment.”

In other words, the Supreme Court’s legitimacy and authority depend entirely on maintaining the approval of the American people. Through most of the country’s history, it managed to do that, even during times of intense political discord. That is no longer true. The people are judging the Court’s judgment, as they should, and they don’t like what they’re seeing. This poses a grave threat to the Court’s ability to serve the country, and in the longer run it endangers the entire democratic project.

There are plenty of explanations, some obvious and some less so, for why the Court has lost the trust of such a wide swath of the people. Working through these explanations, and discussing what can be done to rebuild that trust and to reestablish the Court’s proper role in American government and society, is the reason I’m starting Major Questions.

Every two weeks, sometimes more often as the news demands, I will be here writing about the Court and its rulings, both interim and final; the cases it accepts and rejects; the words of the justices on and off the bench; and the patterns that you should discern in all of it.

Most of all, I will write about what we can do to fix this broken Court, how we can transform it into an institution that upholds the foundational principles of the Declaration of Independence (“all men are created equal”) and the Constitution (“We the People”). That means protecting democracy over oligarchy and ensuring that the American people can govern themselves freely, fairly, and fully.

To my mind, the reform debate is the most important one to be having in this moment, about this Court: not a dissection of its specific rulings but an honest conversation about what the Court has become, how to restore its legitimacy and shore it up as a central pillar of American governance. The crisis at One First Street demands immediate and comprehensive action, and you can come to Major Questions to join the conversation, to read and to think about how to take that action.

To be clear: This is a fundamentally political project, and that’s as it should be. The Supreme Court has existed at the intersection of law and politics from the beginning. Its members like to protest, from Justice Felix Frankfurter warning against entering the “political thicket” to Chief Justice John Roberts insisting that there are not “Democratic” or “Republican” justices, but they protest too much: The justices are human beings like the rest of us, and they do not occupy some magical politics-free zone, even if we expect them to make an effort.

Still, even allowing for an inescapably political Supreme Court, what’s happening today is different not only in degree but in kind. I would identify two breaking points in the last quarter-century that forever altered the relationship between the Court and the American people.

The first: Bush v. Gore, when a Republican-appointed majority short-circuited the 2000 presidential vote count and handed the White House to the Republican nominee. Years later, Justice Antonin Scalia mocked those who were still upset at the 5–4 ruling — “Get over it,” he said — but I proudly count myself among those who have ignored the justice’s command. The ruling in that case changed millions of Americans’ conception of the Court and inflicted damage on the institution that has never been repaired. It was not so much the specific outcome (although, as a longtime Electoral College critic, I thought that was pretty bad, too) as what Bush v. Gore said about the Court’s willingness to take such a monumental decision away from the American people.

The second breaking point we’ll call Garland v. McConnell — the Republican Senate’s refusal in 2016 to even hold a hearing for President Obama’s nominee, Merrick Garland, on the grounds that an election nine months off was too close. The sheer chutzpah of that ploy, which created a shorthanded Court for more than a year solely to fill the vacancy with the right-wing Neil Gorsuch, injected a new kind of toxicity into the national bloodstream. It stripped away any remaining sense that the Court might be able to distance itself from partisan politics. When Sen. Mitch McConnell and his Senate colleagues did an about-face four years later, ramming through another right-wing justice only days before the 2020 election, the takeaway for most Americans was not that politics exists at the Court, but that the Court is nothing but politics. It also seemed to embolden several of the right-wing justices, who have increasingly let their political predilections overtake their judicial modesty.

No wonder that most Americans today do not trust the Court. The justices don’t even appear to trust each other, as Clarence Thomas lamented in the aftermath of the leak of the 2022 ruling that would overturn Roe v. Wade. This is the legacy of the extreme politicization inflicted both on and by the Supreme Court in the 21st century.

It’s also why I was finding it increasingly difficult at The Times to write about the Court’s rulings as though everything was normal. After all, it seemed we knew how most of the cases would come out the moment the Court agreed to hear them. To me, it was pointless to analyze those rulings separate from addressing fundamental questions about the Court’s legitimacy.

As I write these words in March 2026, the situation remains untenable: Every week we wait with a mix of anticipation and dread (mostly dread) to see if the Court will stand up to the lawless presidency it has helped create. Now and then it does, as with the tariffs ruling last month, say, or the refusal to countenance certain other uses of emergency powers. But we have plenty of reason to fear that in the coming months the Court will remind us, sharply and repeatedly, where it really stands, whether on the series of cases likely to expand presidential power over independent agencies or the widely expected (and possibly final) stake in the heart of the Voting Rights Act. Whatever the Court decides on these cases, I will be analyzing them in light of patterns that are evident to anyone who has watched the Roberts Court over the years. For example, even when the Court says no to a presidential power grab, it does so in a political context and a legal world created by decades of its own ideological capture and strategic aggression.

It’s not an easy thing to take on an institution that is both critical to the country’s survival and an ever-increasing threat to it. That’s why I am so excited to be starting Major Questions now with the Brennan Center, which has been leading the way on court reform for years, and within its newly formed Kohlberg Center on the U.S. Supreme Court. Striking a balance between respect and reproach will be my primary task in writing Major Questions. What I can say for sure is that any successful effort must begin with the acknowledgment that the truest way to show respect for the institution is to demand its reform.

In the coming weeks and months, I’ll look closely at the most popular and plausible proposals on the table. For instance, 18-year term limits for justices, with regularized appointments for every president. As the Brennan Center has reported, Supreme Court justices now serve a decade longer on average than they did in the 1960s and can sit on the bench for as many as nine presidential terms. Globally, the United States is alone in granting life tenure to high court judges who hear constitutional cases.

Another clearly overdue reform is an enforceable ethics code for the justices, who are alone among federal judges in being bound by no ethical rules other than those they choose for themselves. I’ll also consider other potential reforms, both those that can be imposed on the Court from without and those that might come from within.

I hope you will read along and that you’ll send me tips and ideas for future newsletters if you think I’m missing something or not writing enough about something else. I also welcome critiques of my arguments and analyses, because this is all a work in progress. The bottom line is that if you’re here, I assume you care deeply about the Court, as I do. You want it to play its rightful role in protecting American democracy and letting the people govern themselves. If that describes you, welcome to the conversation — and the fight.

What I’m Reading

A very useful roundup of public polling on Supreme Court reforms by political science professor Brandon L. Bartels in The Benchmark, the Brennan Center’s new home for cross-disciplinary analysis of the Supreme Court and Court reform. TL;DR: 73 percent of Americans support term limits for justices.

Lawfare’s Anna Bower’s long but remarkably clear and thorough dissection of the Trump administration’s seizure of more than half a million 2020 ballots from Fulton County, Georgia, the warrant for which is “a mess of recycled conspiracy theories and conspicuous omissions.”

“When does technology make us better, and when does it simply make us less like ourselves?” A thoughtful essay by Elizabeth D. Samet in The American Scholar on the value of being human and making mistakes in an AI-dominated world.

Steven Levitsky and Daniel Ziblatt, authors of the bestselling How Democracies Die, explain in the Journal of Democracy why majority rule is the key to healthy democracies in the 21st century by way of a counter-example: “The only established Western democracy in which a nativist faction has won national power and governed alone is the United States.”

In The Atlantic, Jenisha Watts reflects on the Cesar Chavez revelations and the special pressure to cover for predatory men in communities of color. Dolores Huerta overcame that pressure when she came to see that “speaking out was not a threat to what her community built, but the only way to purify it.”

At my old haunt on the New York Times opinion pages, Jeff Toobin smartly flags the cult-like behavior of Trump’s judicial nominees (and next generation of potential Supreme Court picks), whose refusals to acknowledge that Joe Biden won the 2020 election are so similar that they appear to be taking orders directly from the White House. “There is a special peril when federal judges, who serve for life if confirmed, agree to demean themselves in this fashion.”

IMAGE: jkbowers/Getty

This coming weekend marks the 61st anniversary of Bloody Sunday, so it’s an appropriate time to survey the state of voting rights in America. The short version: Not good. For the past 15 years, the Supreme Court has been on an anti-voter tear. Before it hands down its decision in Louisiana v. Callais, a redistricting case that is likely to weaken the 1965 Voting Rights Act even further, let’s shine a light on the man who made so much of it possible: Chief Justice John Roberts.

You may recall that during Roberts’s confirmation hearings in 2006, he was asked about his position on the law, often referred to as the crown jewel of the civil-rights movement. “The existing Voting Rights Act, the constitutionality has been upheld, and I don’t have any issue with that,” he said.

In retrospect, it’s clear the Voting Rights Act — one of the most transformative laws in American history — was doomed the moment Roberts was confirmed as chief justice.

Roberts’s animus toward the act, and toward the broader struggle to address centuries of racial discrimination in America, has been in plain sight since he served as a young lawyer in the Reagan administration, drafting memos attacking the law and devising legal arguments to undermine it.

The significance of the Voting Rights Act cannot be overstated. Its passage was the long-overdue realization of the 15th Amendment’s guarantee, a century before, that no one’s right to vote could be denied or abridged on account of race. And yet from his earliest days, Roberts has expressed more concern about the unequal treatment of states than the unequal treatment of people. As he put it in one 1982 memo, the law represents “the most intrusive interference imaginable by federal courts into state and local processes.” That same year Congress voted to reauthorize it; crucially, it added to Section 2 of the law the provision, known as the “effects test,” that is at issue in the Callais case.

This test was a response to a 1980 ruling by the Supreme Court which determined that Section 2 required evidence that a state voting law was passed with the intent to racially discriminate before it could be blocked. Following this interpretation, lawmakers, especially in the South, got wise about masking their intent, so the act needed to be updated. Its protections would be of little use if they only worked when lawmakers said out loud, “I want to keep Black people from voting.” The new test applied to any state law that would have a racially discriminatory effect, regardless of any evidence of intent to discriminate. The revision was, effectively, a rebuke of the Supreme Court’s narrow interpretation of the Voting Rights Act.

The update was a success: The number of cases brought under Section 2 increased rapidly, from 3 in 1981 to 175 in 1988. Notably, a huge percentage of these cases were brought by voters themselves, which enhanced the enforcement of the statute. The next time the Voting Rights Act came up, in 2006, it passed by a unanimous vote in the Senate and an overwhelming majority in the House. The process went as it was supposed to: the people’s elected representatives holding months of hearings and considering reams of data before reaffirming a longstanding and popular law.

But John Roberts wasn’t going to let it go that easily. 2006 was his first year as chief justice, and he is nothing if not a patient man. He knew his chance would come before long. In a 2009 case, he flagged another key part of the Voting Rights Act, Section 5, as raising “serious constitutional concerns.” Section 5 provides for the federal oversight of states and jurisdictions, most of them in the South, with a history of racial discrimination in voting. In those places, officials are required to seek approval from the federal government before making any changes to their voting laws.

Roberts believed that the map used to determine who had to go through this “preclearance” process was badly out of date and did not reflect current realities on the ground. Racism was not as bad as it had been in 1965, he believed — after all, didn’t America just elect a Black president?

Four years later, in 2013, he got his first clear shot at the law, and he took it. Writing for a bare majority of the court in Shelby County v. Holder, he effectively destroyed Section 5 by invalidating the preclearance map. “Things have changed dramatically” in the South, Roberts wrote. And because the states have “equal sovereignty” (a principle he more or less pulled out of a hat), it was not fair to continue to subject some of them to the trouble and, more important, the humiliation of extra screening without evidence that they were still practicing discrimination. Congress was free to draw up a new map based on current circumstances, he said.

The chief justice was being disingenuous. He knew as well as anyone that in 2013, a sharply divided Congress was not going to manage that. He was also confronted with mountains of evidence showing that while things had indeed improved, voting discrimination continued to be a chronic problem in the South and other covered areas, one that might worsen without Section 5. Nonetheless, he had succeeded in killing off the heart of the Voting Rights Act based on a made-up principle and at the same time deflected the blame onto another branch.

Meanwhile, states that had spent decades under the preclearance requirement acted like they were the beneficiaries of a jailbreak; some enacted new discriminatory voting laws with a speed unheard of among legislatures, making a mockery of Roberts’s high-minded claims about how much they had changed.

But Roberts’s disingenuousness about Congress and the states paled in comparison to another part of his Shelby County decision, one in which, you might say, the chief was masking his own intent. Anticipating the charges that the Voting Rights Act would be hobbled without a functional Section 5, Roberts reassured readers of the continued power of Section 2 — the provision he had attacked three decades earlier. Unlike Section 5, he wrote, “Section 2 is permanent, applies nationwide, and is not at issue in this case.”

Today, barely more than a decade since those words, Roberts and the other right-wingers are almost certain to disable Section 2 in Callais like they did Section 5 before it.

What happened? You might say that things have changed dramatically. Or, perhaps more accurately, nothing has changed. The chief justice’s reassurance about Section 2 in 2013 was roughly as believable as was his defense of the constitutionality of the Voting Rights Act at his confirmation hearing.

None of this should be surprising. With Shelby County, Roberts’s four-decade project to unburden America of its commitment to racial and political equality finally came to fruition. Did anyone really think he’d drop the ball at the one-yard line? To the contrary, he and his right-wing colleagues have spent the last several years doing an end-zone dance on the back of voting rights.

In 2019, the justices ruled that state legislators can gerrymander their districts as much as they please, disenfranchising tens or hundreds of thousands of their own voters in order to hold onto power, and the federal courts can’t do a thing about it.

In 2021, they began hacking away at Section 2 itself — the last meaningful leg of the VRA. That case, Brnovich v. Democratic National Committee, involved a challenge to two Arizona voting policies that had been found to discriminate against voters of color. The Ninth Circuit ruled for the challengers and blocked the Arizona policies, but the now-supermajority of right-wing justices reversed. In the process they announced new standards, again out of thin air, that make it far harder to bring challenges under Section 2’s effects test. So hard, in fact, that while there were dozens of successful Section 2 lawsuits in the first two decades of this century, only one has succeeded at the Supreme Court since Brnovich.

Even before Callais is decided, we can see the impact of Roberts’s anti-voting crusade. A 2024 Brennan Center report found that the participation gap between white and black voters has been growing steadily since 2012, after narrowing for decades thanks to the Voting Rights Act. One way to illustrate the impact of this gap is that without it, 9 million more ballots would have been cast in the 2020 presidential election — more than Joe Biden’s margin of victory in the popular vote. And the gap is growing fastest in the parts of the country that had been covered by Section 5. So much for “things have changed dramatically.”

John Roberts has taken pains to cast himself as a kinder, gentler version of his ideological predecessors, most notably William Rehnquist, the chief justice for whom he clerked before joining the Justice Department in the early 1980s. Rehnquist opposed much of the civil rights movement, insisting that Brown v. Board of Education was wrongly decided and defending the odious principle of “separate but equal.” He held a similar disdain for the Voting Rights Act itself. “The enforcement provisions of the Civil War Amendments were not premised on the notion that Congress could empower a later generation of blacks to ‘get even’ for wrongs inflicted on their forebears,” Rehnquist wrote.

Roberts doesn’t speak so bluntly, but the sentiment that the Voting Rights Act is about “getting even” — as though its purpose is revenge instead of basic racial equality — is a through line of both men’s jurisprudence. And because Rehnquist and Roberts together have combined to lead the Supreme Court for the last 40 years and counting, we are now faced with two divergent trends in American law and politics: On one hand, Congress (present session excepted) for years responded to an increasingly diverse nation by passing laws to make voting more accessible and less discriminatory; on the other hand, the Supreme Court has repeatedly played the role of reactionary counterweight, first under Rehnquist and then under Roberts.

While the American people’s elected representatives have sought, however imperfectly, to redress centuries of racial discrimination by passing laws for a fairer future, the highest court has been steered for nearly half a century by two men who appear intent on undoing as much of that progress as possible, dragging us back to a darker, more unequal past.

IMAGE: Brooks Kraft/Getty

For Americans in 2026, the Supreme Court can seem set in stone and not just the imposing marble facade at One First Street. Major changes to the Court’s size, structure, or docket haven’t been made in decades or, in some cases, centuries. Seats on the Court are often filled for a generation or more; one is currently occupied by a justice who took office before nearly half of the people alive today were born.

In such a stagnant climate, big changes feel impossible to achieve. No wonder people despair! At a moment when tens of millions of Americans are deeply unhappy with the Court and its behavior, it is hard to envision a clear path to reform. But, as a brief glance at our history demonstrates, that path has already been trodden many times.

This history is one of near-constant reform: Throughout the 19th century, at least, presidents and Congress shaped and reshaped the Court’s size, jurisdiction, responsibilities, and more as they pleased. It was understood to be a part of normal politics. Sometimes the changes were in the service of adapting the Court to a growing and changing country, but more often they were driven by widespread anger at specific decisions or by a desire to cement political gain. Taken together, they offer an encouraging counterpoint to the modern conventional wisdom about changing the Court: It can be done, if you’re willing to play political hardball.

Exhibit A: The Judiciary Act of 1801, which eliminated a Supreme Court seat and at the same time created several new lower federal courts. The law was the handiwork of President John Adams and his Federalist allies in Congress, who had just lost the election to Thomas Jefferson and the Republicans. It was a heads-I-win, tails-you-lose scenario. Jefferson would be denied the chance to fill the next high court vacancy, while Adams could spend his final days in office installing the people he wanted in his new lower court posts: “midnight judges,” as the last-minute appointments came to be known.

Jefferson was furious, writing to a friend that the Federalists had “retired into the judiciary as a stronghold.” Within months, he and the newly empowered Republicans struck back, repealing the Federalists’ 1801 law and passing a new one that restored the Supreme Court seat and eliminated the lower court seats Adams had created.

(In case any originalists are reading, I’d like to note that all this tinkering with the Court is being done by America’s founders themselves.)

Sixty years later, it happened again. Newly elected President Abraham Lincoln faced a Supreme Court dominated by slavery-protecting Southerners who had recently ruled, in the Dred Scott case, that Black people could not be American citizens. Anti-slavery Republicans responded not with despair but with determination. Sen. William Seward, who would become Lincoln’s secretary of state, said, “We shall reorganize the Court, and thus reform its political sentiments and practices, and bring them into harmony with the Constitution and with the laws of nature.”

Soon after taking office, Lincoln and congressional Republicans did just that, expanding the Court to 10 justices and helping him tip the balance in favor of Northerners who would vote against slavery. After Lincoln’s assassination, Republicans in Congress undid the expansion, providing for the Court to be gradually reduced to seven justices. This blocked Lincoln’s pro-slavery successor, Andrew Johnson, from filling a pending vacancy with his chosen nominee.

In all, the size of the Court has changed seven(ish) times (more on that below). And all of it was perfectly legal, which illustrates the central lesson for supporters of Court reform today: Congress has far more power over the Supreme Court than most people realize.

Article III of the Constitution, which established the Supreme Court, gives Congress enormous control over its fundamental features — not just its size, but the sorts of cases it has the power to hear. For example, it says, “The supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.”

In the words of a 1982 memo from the attorney general’s office, “This clear and unequivocal language is the strongest argument in favor of congressional power.” The author of that memo was a young assistant named John Roberts, now the chief justice of the United States.

Roberts was making what was for a long time an uncontroversial point. Adams, Jefferson, and Lincoln got it. Progressive-era lawmakers and activists in the early 20th century got it, too, demanding reforms like term limits, supermajority voting requirements, and restrictions on the Court’s jurisdiction. President Franklin Roosevelt may not have succeeded in adding justices to the Court, but his threat to do so scared the conservative justices into voting in favor of his New Deal agenda, showing the power of the other branches to influence the functioning of the Court.

Considering this history from our sclerotic moment, what’s striking is not only how often political actors have reformed or tried to reform the Court, but how much their debates sounded like the ones we are having now — and how much they can serve as a model going forward.

The bottom line is that the Court can be changed, as long as the political will is there. “The attempt to change it is such a moment of drama that people assume there’s something untoward about it,” Justin Crowe, a political scientist at Williams College, told me. “It’s regarded as something highly politicized. But it was always political!”

Speaking of political will, let’s return to the seven instances in which Congress changed the Court’s size. A more accurate number is eight. In February 2016, Mitch McConnell and Senate Republicans refused to grant so much as a hearing to Merrick Garland, President Barack Obama’s nominee for the Court, not because of any questions about his qualifications (top Republicans had previously said he would be an ideal nominee), but on the ground that the upcoming election was too near and the American people’s voices should be heard first. They kept the seat vacant until the following spring, when it could be filled with a justice nominated by President Donald Trump.

For more than a year, then, McConnell and his fellow Republicans literally changed the Court’s size — reducing it to eight justices, then expanding it back to nine when they were assured that a president of their party could fill the vacancy. (Adding insult to injury, the Republicans reversed their position in 2020, pushing through Trump’s nomination of Amy Coney Barrett barely one week before Election Day, after millions of Americans had already cast their ballots.)

Echoing Jefferson’s “stronghold” charge against Adams more than two centuries before, Democrats in 2020 vented their fury. “The issue is that this is a power grab,” Alabama Sen. Doug Jones said. But to McConnell, it was just smart politics. “A lot of what we’ve done over the last four years will be undone sooner or later by the next election,” he said. “They won’t be able to do much about this for a long time to come.”

Those who want to restore legitimacy and integrity to a Court currently lacking in both can continue to stomp their feet over McConnell’s taunt, or — if they win enough power in 2028 — they can take inspiration from it. That is what political will looks like.

The point of lingering on this episode isn’t to praise McConnell, whose cynical destruction of norms that both parties had observed for generations inflicted severe damage on the Court and on American democracy. Rather, it is to remind ourselves of Congress’s awesome power to change the Supreme Court when it wants to. The path to successful reform going forward runs from the founding through today, and it can be boiled down to a simple message: Do not be afraid to think boldly and act accordingly.

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