The Supreme Court on Friday heard oral arguments on the future of TikTok—whether to let the platform go dark on January 19 according to a bipartisan law passed by Congress, or to intervene and spare the platform.

The case pits the First Amendment free speech rights of TikTok and its users against the government’s assertions that the platform poses a national security risk. With bipartisan support, Congress passed a law that will essentially ban TikTok in the United States on January 19 unless ByteDance, the Chinese-based company that owns TikTok, divests the platform.

Genuflecting to national security over fundamental rights has led to some of the court’s most regrettable decisions.

The Supreme Court does not generally like to second-guess the federal government when it comes to national security concerns, and is therefore likely to ultimately uphold the law. While the justices did express doubts about some of the government’s national security rationale, it’s unclear if there are strong enough to delay the law from taking effect, or to overturn it as an unconstitutional infringement on the right to free speech.

The government’s national security arguments are twofold. First, that TikTok vacuums up user data that it then sends to its corporate owner, the China-based ByteDance, where the Chinese government can access it. The People’s Republic of China has been designated a foreign adversary with a documented strategy of gathering vast quantities of data on Americans.

The justices seemed genuinely concerned about this national security risk. Justice Brett Kavanaugh raised the fear that China would gather data on teenagers and people in their twenties “that they would use that information over time to develop spies, to turn people, to blackmail people, people who, a generation from now, will be working in the FBI or the CIA or in the State Department.” Even the lawyers for TikTok and content creators challenging the law acknowledged the threat. But, they said, it was not enough to make the law constitutional.

The government’s second national security argument, which the justices were more skeptical of, is that China can use TikTok to covertly manipulate its 170 million users. Multiple justices had problems with this rationale. After Prelogar suggested that China might benefit from fomenting arguments between Americans, Chief Justice John Roberts sensed an opportunity for a joke. “Did I understand you to say a few minutes ago that one problem is ByteDance might be, through TikTok, trying to get Americans to argue with each other?” he asked, then answered with the punchline. “If they do, I say they’re winning.”

The courts use various levels of scrutiny to determine whether a law is constitutional. If a law abridges the right to free speech, for example, the courts subject it to a higher level of scrutiny, forcing the government must prove it had a compelling interest to abridge that right. The level of scrutiny can also be determined by whether the government is restricting certain viewpoints. In this case, TikTok and the content creators fighting the law claim that Congress passed a content-based free speech restriction. The government denies this. The law, they say, is content neutral; they are not banning any particular speech, but rather, the manipulation of that speech for geopolitical gain. “TikTok, if it were able to do so, could use precisely the same algorithm to display the same content by the same users,” Prelogar explained. “All the act is doing is trying to surgically remove the ability of a foreign adversary nation to get our data and to be able to exercise control over the platform.”

But the justices seemed to raise an eyebrow at the government’s defense here. Justice Elena Kagan, in particular, pushed back against the idea that a ban on manipulation is content-neutral because, ultimately, it does effect what content is shown. “Content manipulation is a content-based rationale,” Kagan said.

Moreover, the justices seemed dismissive of the idea that covert algorithmic manipulation is an actual national security problem. Kagan drew laughs from the courtroom when she stressed that, at this point, everyone knows China is behind TikTok. “It’s just because people don’t know that China is pulling the strings? That’s what ‘covert’ means?” Kagan asked. “Everybody now knows that China is behind it.”

Prelogar attempted to push back on this. “The problem with just saying, as a general matter, China has this capability and might at some point be able to exercise it and manipulate the platform is it doesn’t put anyone on notice of when that influence operation is actually happening, and, therefore, it doesn’t guard against the national security harm from the operation itself.”

Automatically genuflecting to government assertions of national security peril, especially when fundamental rights are at stake, is a habit that has led to some of the Supreme Court’s most regrettable decisions, including Korematsu, when it upheld the use of detention camps for United States citizens of Japanese origin during World War II. As Jeffrey Fisher, a Stanford Law professor who represented TikTok users, put it on Friday, “The government just doesn’t get to say ‘national security’ and the case is over.”

But the justices’ downplaying of the risk of covert manipulation also ignored the extraordinary power of social media and the difficulty of detecting and counteracting propaganda, misinformation, and narratives intended to weaken the United States or harm its citizens.

During the 2016 election, Russia used social media, including dozens of accounts on Instagram, to dissuade Black people from voting. Often, the Kremlin-backed effort would create accounts with an apolitical focus, then shift them to politics once it had gathered an audience. With TikTok, China’s ability to manipulate is far greater. Instead of working to gather an audience through popular content, it could simply use algorithmic manipulation, powered by its vast data trove, to show certain voters information that would dissuade them from voting. They could use the algorithm to threaten public health by increasing fear of vaccines. The scenarios go on and on.

The justices seemed to dismiss the idea covert algorithmic manipulation is an actual security problem.

Algorithms are a potent tool. Because fear grabs users’ attention, algorithms have long prioritized scary and sensationalist material. It’s one reason that Facebook and YouTube radicalized an untold number of people to fear vaccines during the Covid-19 pandemic and helped spread conspiracy theories like Q’Anon. And these algorithmic decisions were motivated by profit—not ones designed to create geopolitical dominance by an enemy nation.

It’s quite possible that a majority of the justices could deem TikTok’s algorithm protected speech but also determine that the government’s national security interest is strong enough to curtail that right. It’s also possible that the justices could decide that algorithmic manipulation is a protected right of TikTok, a US-based company, but not, ByteDance, a foreign company. That may be the government’s argument: TikTok is free to use whatever algorithm it wants, but ByteDance, and through it, the Chinese government, does not have a similar right.

One wildcard is that the law is set to take effect the day before Donald Trump’s inauguration. Trump has asked the court to halt implementation of the law on the premise that he alone can reach a better resolution, claiming that “President Trump alone possesses the consummate dealmaking expertise, the electoral mandate, and the political will to negotiate a resolution to save the platform while addressing the national security concerns expressed by the Government.” During oral argument, Francisco likewise argued that the court should halt implementation of the law until the next administration.

Justice Samuel Alito, who suspiciously spoke by phone with Trump on Tuesday, raised the possibility of an administrative stay—a maneuver by which a court hits the pause button on a new law or regulation to give the it extra time to assess the situation. This may sound like a compromise solution, but halting a law passed by Congress from taking effect to allow a new administration to ignore it is a significant exercise of judicial authority.

The justices don’t appear happy about any of their options. But they have nine days to do something.

The Supreme Court on Friday heard oral arguments on the future of TikTok—whether to let the platform go dark on January 19 according to a bipartisan law passed by Congress, or to intervene and spare the platform.

The case pits the First Amendment free speech rights of TikTok and its users against the government’s assertions that the platform poses a national security risk. With bipartisan support, Congress passed a law that will essentially ban TikTok in the United States on January 19 unless ByteDance, the Chinese-based company that owns TikTok, divests the platform.

Genuflecting to national security over fundamental rights has led to some of the court’s most regrettable decisions.

The Supreme Court does not generally like to second-guess the federal government when it comes to national security concerns, and is therefore likely to ultimately uphold the law. While the justices did express doubts about some of the government’s national security rationale, it’s unclear if there are strong enough to delay the law from taking effect, or to overturn it as an unconstitutional infringement on the right to free speech.

The government’s national security arguments are twofold. First, that TikTok vacuums up user data that it then sends to its corporate owner, the China-based ByteDance, where the Chinese government can access it. The People’s Republic of China has been designated a foreign adversary with a documented strategy of gathering vast quantities of data on Americans.

The justices seemed genuinely concerned about this national security risk. Justice Brett Kavanaugh raised the fear that China would gather data on teenagers and people in their twenties “that they would use that information over time to develop spies, to turn people, to blackmail people, people who, a generation from now, will be working in the FBI or the CIA or in the State Department.” Even the lawyers for TikTok and content creators challenging the law acknowledged the threat. But, they said, it was not enough to make the law constitutional.

The government’s second national security argument, which the justices were more skeptical of, is that China can use TikTok to covertly manipulate its 170 million users. Multiple justices had problems with this rationale. After Prelogar suggested that China might benefit from fomenting arguments between Americans, Chief Justice John Roberts sensed an opportunity for a joke. “Did I understand you to say a few minutes ago that one problem is ByteDance might be, through TikTok, trying to get Americans to argue with each other?” he asked, then answered with the punchline. “If they do, I say they’re winning.”

The courts use various levels of scrutiny to determine whether a law is constitutional. If a law abridges the right to free speech, for example, the courts subject it to a higher level of scrutiny, forcing the government must prove it had a compelling interest to abridge that right. The level of scrutiny can also be determined by whether the government is restricting certain viewpoints. In this case, TikTok and the content creators fighting the law claim that Congress passed a content-based free speech restriction. The government denies this. The law, they say, is content neutral; they are not banning any particular speech, but rather, the manipulation of that speech for geopolitical gain. “TikTok, if it were able to do so, could use precisely the same algorithm to display the same content by the same users,” Prelogar explained. “All the act is doing is trying to surgically remove the ability of a foreign adversary nation to get our data and to be able to exercise control over the platform.”

But the justices seemed to raise an eyebrow at the government’s defense here. Justice Elena Kagan, in particular, pushed back against the idea that a ban on manipulation is content-neutral because, ultimately, it does effect what content is shown. “Content manipulation is a content-based rationale,” Kagan said.

Moreover, the justices seemed dismissive of the idea that covert algorithmic manipulation is an actual national security problem. Kagan drew laughs from the courtroom when she stressed that, at this point, everyone knows China is behind TikTok. “It’s just because people don’t know that China is pulling the strings? That’s what ‘covert’ means?” Kagan asked. “Everybody now knows that China is behind it.”

Prelogar attempted to push back on this. “The problem with just saying, as a general matter, China has this capability and might at some point be able to exercise it and manipulate the platform is it doesn’t put anyone on notice of when that influence operation is actually happening, and, therefore, it doesn’t guard against the national security harm from the operation itself.”

Automatically genuflecting to government assertions of national security peril, especially when fundamental rights are at stake, is a habit that has led to some of the Supreme Court’s most regrettable decisions, including Korematsu, when it upheld the use of detention camps for United States citizens of Japanese origin during World War II. As Jeffrey Fisher, a Stanford Law professor who represented TikTok users, put it on Friday, “The government just doesn’t get to say ‘national security’ and the case is over.”

But the justices’ downplaying of the risk of covert manipulation also ignored the extraordinary power of social media and the difficulty of detecting and counteracting propaganda, misinformation, and narratives intended to weaken the United States or harm its citizens.

During the 2016 election, Russia used social media, including dozens of accounts on Instagram, to dissuade Black people from voting. Often, the Kremlin-backed effort would create accounts with an apolitical focus, then shift them to politics once it had gathered an audience. With TikTok, China’s ability to manipulate is far greater. Instead of working to gather an audience through popular content, it could simply use algorithmic manipulation, powered by its vast data trove, to show certain voters information that would dissuade them from voting. They could use the algorithm to threaten public health by increasing fear of vaccines. The scenarios go on and on.

The justices seemed to dismiss the idea covert algorithmic manipulation is an actual security problem.

Algorithms are a potent tool. Because fear grabs users’ attention, algorithms have long prioritized scary and sensationalist material. It’s one reason that Facebook and YouTube radicalized an untold number of people to fear vaccines during the Covid-19 pandemic and helped spread conspiracy theories like Q’Anon. And these algorithmic decisions were motivated by profit—not ones designed to create geopolitical dominance by an enemy nation.

It’s quite possible that a majority of the justices could deem TikTok’s algorithm protected speech but also determine that the government’s national security interest is strong enough to curtail that right. It’s also possible that the justices could decide that algorithmic manipulation is a protected right of TikTok, a US-based company, but not, ByteDance, a foreign company. That may be the government’s argument: TikTok is free to use whatever algorithm it wants, but ByteDance, and through it, the Chinese government, does not have a similar right.

One wildcard is that the law is set to take effect the day before Donald Trump’s inauguration. Trump has asked the court to halt implementation of the law on the premise that he alone can reach a better resolution, claiming that “President Trump alone possesses the consummate dealmaking expertise, the electoral mandate, and the political will to negotiate a resolution to save the platform while addressing the national security concerns expressed by the Government.” During oral argument, Francisco likewise argued that the court should halt implementation of the law until the next administration.

Justice Samuel Alito, who suspiciously spoke by phone with Trump on Tuesday, raised the possibility of an administrative stay—a maneuver by which a court hits the pause button on a new law or regulation to give the it extra time to assess the situation. This may sound like a compromise solution, but halting a law passed by Congress from taking effect to allow a new administration to ignore it is a significant exercise of judicial authority.

The justices don’t appear happy about any of their options. But they have nine days to do something.

The Supreme Court on Thursday narrowly denied President-elect Donald Trump’s last ditch effort to delay his sentencing in the New York hush money case in which he was convicted of 34 felony counts in May. That sentencing will now proceed tomorrow, January 10.

Trump was found guilty of falsifying business records to cover up payments to adult film star Stormy Daniels in the lead-up to the 2016 election. The sentencing, as Judge Juan Merchan has already indicated, will not include prison time, a fine, or any condition of probation. But it will, officially, make Trump a convicted felon just 10 days before resuming office. Trump will still have the opportunity to appeal his conviction, and the Supreme Court might yet overturn it in the likely scenario the case is appealed to the highest court.

On multiple occasions, the Supreme Court has come to Trump’s aid. On Thursday, it stood down—at least for now.

Rather than intervene before Trump has exhausted his appeal opportunities in state court, the justices’ decision not to intervene allows the New York courts to handle the case as it would handle any other criminal proceeding. This decision is not a sign that the justices are skeptical of Trump’s legal demands or that they won’t later throw out his conviction. But the court—which has in the past year repeatedly taken extraordinary steps to protect Trump from legal liability—stood down. At least for now.

The decision was 5-4. Justices Clarence Thomas, Samuel Alito, Neil Gorsuch, and Brett Kavanaugh would have granted Trump’s request and stopped the sentencing.

In July, the Supreme Court issued a momentous decision granting Trump sweeping immunity from prosecution for official acts made while president. Chief Justice John Roberts’ generous creation of this new right to immunity even barred most evidence from being admissible if it involved official acts. It is this aspect of July’s ruling that Trump attempted to leverage to halt his sentencing, arguing that his trial was tainted by evidence that entangled with his official duties as president. In their petition to the court, Trump’s personal attorneys (both of whom Trump has announced he will nominate to top positions at the Justice Department) argue for a very broad definition of inadmissible evidence, including social media posts from the president’s official account, information on financial disclosure forms, and testimony from former aides about conversations with the president.

In the court’s order, it listed two reasons for denying Trump’s emergency appeal: First, the issue can be resolved in the regular appeals process. Second, because Merchan has already promised to avoid a sentence that would impinge on Trump’s freedom, it will not detract from his ability to carry out his duties. The four dissenters did not give a reason for why they would have granted Trump’s request.

Had the justices halted Trump’s sentencing, it would have been ominous on two levels: First, as a sign of deference and rule-bending for Trump’s benefit, and, second, as a signal that the immunity decision will be interpreted in the broadest way possible.

Several justices’ impartiality towards Trump is in serious doubt. Ginni Thomas, the wife of Justice Clarence Thomas, encouraged efforts to overturn the 2020 election. Justice Samuel Alito flew two flags at his residences associated with the Stop the Steal movement attempting to overturn the 2020 election—but blamed both displays on his wife. Both justices would have halted the sentencing. On multiple occasions in the last year, the Supreme Court has come to Trump’s aid. It ensured he could remain on state ballots despite the 14th Amendment’s prohibition on insurrectionists holding federal office and it repeatedly delayed Trump’s trial for attempting to overturn the 2020 election until, at the last possible moment, it deeply damaged the entire case with its shocking immunity decision.

On Tuesday, hours before this appeal was filed, Alito and Trump spoke by phone. Alito claims that the call was to recommend a former clerk for a job in the new Trump administration. But this former clerk is already a partner at a big law firm and already served in Trump’s previous administration in the high-up position of chief of staff to the attorney general. He comes from a line of prominent Republican attorneys. But, as Alito told ABC News, which first reported the call, it was Alito who needed to personally provide a reference for his former clerk.

“William Levi, one of my former law clerks, asked me to take a call from President-elect Trump regarding his qualifications to serve in a government position,” Justice Alito told ABC News. Alito denied discussing Trump’s petition in the New York case or any other business he has pending before the court, or likely will in the future.

That may be true. Perhaps Trump is far more involved in reference-checking than previously thought. But the connections between Trump and the GOP-appointed justices keep getting closer, and the ethical lines blurrier.

It’s an open question how well American democracy will withstand a second Trump presidency. Donald Trump has repeatedly promised to weaponize the government to prosecute his perceived political enemies, making politicization of the Justice Department worry Number One. The fact that he’s put forward an FBI director, Kash Patel, who has already drawn up a public political hit list hasn’t calmed these fears. Then there is Trump’s refusal to accept election results, his willingness to resort to violence, and his desire to turn the military against civilians. None of these are a recipe for democratic governance. 

“The justices [are] taking a look at some of these cases and thinking… ‘Because we do it, well, it can’t be wrong.'”

But often left out of the list of risks is the likelihood of rampant public corruption. During his first term in office, Trump used his office to accrue power and to attack those he perceived as enemies—but also for personal financial gain. His cabinet officials, taking a cue from their boss, used their offices for personal gain as well.

The second time around, it’s likely to get much worse. Picture a government transformed into a system of patronage, in which bureaucrats loyal to Trump hand out contracts to friendly oligarchs. Elon Musk, who spent more than $275 million to help elect Trump president, will likely see billions in rewards in federal contracts and tax breaks, as well as the incalculable benefit of political power. Musk, of course, has also been tasked by Trump with cutting trillions in spending. This is how democracy devolves into kleptocracy—taxpayer dollars are allotted to the winners, while the taxpayers themselves see much less in return. 

Unless caught in red-handed, obvious favor trading, corrupt officials will be ensconced in safety with the knowledge that the US Supreme Court is unlikely to allow prosecutors to do anything about it. “They have essentially, single-handedly disassembled the institutional structure that allowed prosecution of political corruption, unless you can catch somebody in a really immediate quid pro quo, the sack full of cash for the particular decision,” says Sen. Sheldon Whitehouse (D-R.I.), an outspoken critic of the Roberts Court. “The problem is that you have to be an idiot to do that… When you’re playing for big numbers and messing around in Washington, you do it much more cleverly.”

While it’s impossible to imagine a Trump DOJ launching federal corruption prosecutions of his allies, if there is ever an opportunity once he leaves office to clean up the mess, future prosecutors will have to contend with the fact that the US Supreme Court has blessed the kind of corrupt politics Trump deals in.

Since 2016, the justices have issued a series of opinions that make it increasingly difficult to win cases targeting public corruption. The consistent message from the court is that political corruption is an unstoppable feature of American politics, and public officials can increasingly take bribes or kickbacks with the assurance that the justices are unlikely to uphold a conviction. This summer, as if to rule out any doubt, the justices granted the president blanket immunity for official acts. If you’re president, bribery is now legal. 

In a second Trump term, without any check from the court, “people seeking to influence federal officials…may be willing to be more aggressive in how they seek to influence the administration,” warns Virginia Canter, chief ethics counsel at Citizens for Responsibility and Ethics in Washington. “In that way, it lays the foundation for corruption.”

The trend dates back to 2016, when the Supreme Court issued an astonishing—and unanimous—opinion. Federal prosecutors had secured convictions against Bob McDonnell, the former Republican governor of Virginia, and his wife, who accepted loans, cash, and gifts from Virginia businessman Jonnie Williams in exchange for the governor’s help in boosting a dietary supplement Williams was selling. McDonnell connected Williams to Virginia university researchers, told state health care plan administrators that the supplement “would be good for” state employees, and even went so far as to host a luncheon at the governor’s mansion in which state-funded researchers were handed $25,000 checks to write proposals to study the drug—something Williams had asked for McDonnell’s help with. But, in an opinion written by Chief Justice John Roberts, the court threw out McDonnell’s conviction on the theory that none of those had been official acts. 

In 2020, the Supreme Court again let public officials off the hook. This time, it involved the infamous Bridgegate scandal, in which aides to then-New Jersey Gov. Chris Christie shut down two lanes of the George Washington Bridge in order to cause “traffic problems” in Fort Lee, where the mayor had refused to endorse Christie’s re-election. In another unanimous opinion, Justice Elena Kagan threw out the convictions because the scheme was not aimed at gaining money or property—a decision that gave a green light to other acts of political retribution.

Presidential immunity and an unlimited pardon power creates carte blanche for corruption.

Trump’s 2024 campaign didn’t merely hint at retribution, it publicly promised it. And while Trump usually suggested prosecuting his political detractors, Bridgegate offers another template. If a governor, member of Congress, or any other official stands up to Trump, they might also face traffic problems in their state or district—or worse forms of government harassment or revenge. And, at least under the fraud statutes at issue in the Bridgegate prosecution, it would be hard to ever punish such activity.

This June, the Supreme Court handed down another bombshell public corruption case. This time, it threw out the conviction of an Indiana mayor who solicited and received $13,000 in kickbacks after he helped steer two contracts for purchasing garbage trucks. In a 6-3 decision, the Republican appointees to the court held that the federal anti-bribery statute at issue did not outlaw gratuities. The law at issue pertained to state level officials, but if a mayor can ask for a thank-you check for awarding a contract, why can’t a federal official? 

This case was notable because it saw the Democratic appointees finally break ranks with the court’s trend of overruling public corruption convictions. After four unanimous opinions in such cases, Justice Ketanji Brown Jackson, Biden’s sole Supreme Court appointee, wrote a dissent saying the decision allowing gratuities is “one only today’s court could love.” It’s a single line that points to a serious problem: The court’s recent public corruption cases haven’t just green lit political corruption, they have also protected the justices’ own conduct.

Since the spring of 2023, ProPublica, the New York Times, and other outlets have reported on millions of dollars in gifts and luxury travel that Justice Clarence Thomas has enjoyed thanks to billionaire friends. Justice Samuel Alito, likewise, has enjoyed luxury travel on the dime of a hedge fund billionaire. These billionaires are often connected to the justices by Leonard Leo, the powerful former vice president of the conservative Federalist Society. Justices Brett Kavanaugh and Neil Gorsuch have enjoyed summer teaching jaunts in Europe, paid for by a law school that has been funded by Leo. Leo helped select the court’s GOP-appointed justices, shepherded some through their nomination fights, and his web of groups spent millions to secure their confirmations. The groups he funds also submit amicus briefs to the court, signaling to the justices how the moneyed interests that lie behind their success want them to rule.

Sen. Whitehouse believes the court’s rulings in these recent public corruption cases stem from the justices’ own desire for self-preservation. “The justices,” he says, are “taking a look at some of these cases and thinking, ‘Oh shit, that looks a lot like what we do, and because we do it, well, it can’t be wrong, because we’re so wonderful—and therefore this whole prosecution must be wrong.’”

The McDonnell case shocked government ethics experts. “Our eyes popped out when we saw that ruling,” Canter recalls. But seven years later, particularly following revelations about Thomas’ “luxurious gifts and travel,” Canter explains, “the McDonnell case made sense.”

In July 2023, the New York Times reported that shortly after ascending to the Supreme Court, Thomas joined the Horatio Alger Association, a group whose members include some of the country’s wealthiest people. Through that society, Thomas made friends with the ultra-rich, joining them on vacations and in private boxes at sporting events. Thomas also gained something he had reportedly always craved from the ruling class: acceptance and adoration. In return, Thomas gave the society use of the Supreme Court itself, hosting the group annually in the court’s hallowed chamber—providing, like McDonnell, his benefactors private use of a public building. The society, in return, fundraises off of its access to the court and Thomas.

Similarly, in light of June’s case allowing payments of thanks to public officials, it’s not hard to see the largesse enjoyed by some justices as gratuities for decisions that enrich and empower their wealthy friends—perhaps not the kind that prosecutors would come after, but certainly the kind that would lower public confidence in an independent judiciary. In his majority opinion in the gratuities case, Kavanaugh fretted that innocent public local officials like “court clerks, prison guards, [and] high school basketball coaches” might be ensnared for innocently accepting gifts from their communities. (If the ruling left any question about Kavanaugh’s sympathies, note that he has coached youth basketball.) “These public corruption cases may be cutting too close to their activities,” says Canter. “It may have made them very nervous.”

“It lets corrupt politicians off the hook.”

While their rulings have opened the door to more public corruption, so has the rhetoric the justices employ in those decisions, according to Josh Chafetz. As the Georgetown professor argues in an upcoming law review article, the high court has repeatedly shrugged off the behavior of public officials in these cases as the tawdry yet ordinary business of politics. In the McDonnell ruling, for example, Roberts spends a significant portion of the opinion laying out every detail of the case, before, in a twist, tossing it all aside as irrelevant. “There is no doubt that this case is distasteful; it may be worse than that. But our concern is not with tawdry tales of Ferraris, Rolexes, and ball gowns,” Roberts wrote. Instead, his concern is that a conviction against McDonnell could ensnare other officials conducting politics as usual. “What possible impression could a reader be left with,” Chafetz writes, “other than that electoral politics is gallingly tawdry across the board?” 

“It’s this idea that electoral politics is just so inherently degraded that there’s nothing that the law can do about it,” Chafetz told me. “And so they’re going to disable the law from trying.”

Perversely, Chafetz argues in his upcoming paper, the only entity held to a higher standard in the high court’s decisions is the judiciary. The result, when combined with the court’s cases unleashing a new, often untraceable, flood of campaign dollars, has been to normalize public expectations of corruption in electoral politics while elevating the judiciary—even as the justices’ own activities echo the unseemly behavior at issue in some of these cases.

In July, the Supreme Court went even further in Trump v. United States when they decided presidents are immune from criminal prosecutions for all official acts. As Justice Sonia Sotomayor lamented in her dissent, that means bribes are now kosher for the president. And unlike in McDonnell v. United States, in which the court defined official acts so narrowly as to exclude governor’s mansion luncheons, in the immunity case, any conduct remotely related to official activity is now considered immune—perhaps just because it was carried out on official stationary. “It’s maddening that in McDonnell you get this incredibly narrow conception of official acts that winds up letting a corrupt politician off the hook, then in Trump, you get an incredibly broad definition of official acts that winds up letting a corrupt politician off the hook,” says Chafetz. “The commonality there is that it lets corrupt politicians off the hook.”

Presidential immunity, coupled with the office’s unlimited pardon power, creates carte blanche for public corruption at all levels of government. But even if corrupt officials don’t receive a pardon from an abetting president, the Supreme Court has made it clear that public corruption convictions will be very hard to sustain. It’s theoretically possible that state officials might attempt to prosecute federal officials when their corrupt actions violate state laws, but Trump himself would likely be immune to such prosecutions under the Supreme Court’s reasoning in the immunity case. And any state or local prosecutor targeting a Trump-allied federal official might find himself the target of an FBI investigation under a director like Patel, or perhaps suffering from some traffic problems. Witnesses could fear the same fate.

The court could soon face new test cases that give it the opportunity to undercut other laws used to prosecute public corruption. Bob Menendez, the former New Jersey Democratic senator, was convicted this year of bribery and acting as a foreign agent, among other charges. Menendez is appealing, aided by the same lawyer who represented McDonnell and the Bridgegate defendants before the Supreme Court. Menendez’s defense hinges, in part, on his own claim to a form of immunity for members of Congress. (It remains to be seen if the justices are as keen on immunity for lawmakers as they are for presidents.) And this fall, New York City Mayor Eric Adams was indicted on federal bribery charges; while the details prosecutors described are outrageous, the charges were already curtailed by Supreme Court precedents, which may ultimately allow Adams to beat them. (Trump said he would consider a pardon for Adams.)

Ultimately, rooting out corruption will take an act of Congress. Not the incoming one, controlled by Republicans, but a hypothetical future one determined to stop public corruption. And because most of the Supreme Court’s decisions in this area have been based on interpreting laws and not Constitutional rights, as Eric Petry, an attorney at the Brennan Center for Justice, points out, “the good news is that these are things that Congress could fix by passing new statutes.” The bad news, of course, is that Congress hasn’t addressed these problems and is unlikely to do so anytime soon. 

It’s hard to see public corruption being punished in the next four years. Instead, it will likely blossom into new levels of threats, both to democratic institutions and possibly national security. (Remember, both Menendez and Adams were taking money from foreign governments.) The cavalry is not coming—it’s been reined in.

After contemplating a Tennessee ban on gender-affirming care for transgender minors Wednesday, the Supreme Court appears likely to greenlight the prohibition on the theory that nine humble justices are not the best arbiters of complex medical questions.

It’s a theory of a modest judiciary that stays in its lane and knows the limits of its expertise. But the notion is a wolf in sheep’s clothing: Under the guise of judicial restraint, several justices suggested during arguments they would allow states to circumvent the Constitution’s guarantees of equal protection.

Roberts’ notion of a humble court contrasts with a pattern of augmenting its own authority.

This Supreme Court, dominated by a 6-3 majority of Republican appointees, doesn’t usually take such a modest posture toward government regulation. But when it does, it’s often in cases that will allow a state to implement a constitutionally questionable and partisan-motivated policy. If Wednesday’s case, United States v. Skrmetti, is decided this way, it will be one in a line of decisions where the court deferred to state legislatures so it could avoid facing the constitutional deficiencies those same lawmakers created. Such an outcome would also stand in stark contrast to the court’s rulings on federal law and regulations, where conservative justices have been eager to take power away from Congress and federal agencies.  

Wednesday’s case pitted Tennessee’s ban on gender-affirming care against transgender youth and their parents, the ACLU, and the US government, who allege that the law prohibits treatment on the basis of sex. As a result, they argue, courts must take a closer look at the legislature’s justification for the law to determine whether it violates the Constitution’s equal protection clause.

In taking the case, the Supreme Court agreed to decide the proper judicial analysis. That first means determining if the law indeed discriminates on the basis of sex or targets a protected class of people. If it does, then the state of Tennessee must provide additional proof that a ban based on sex is necessary to further the state’s purported goal of improving the health of young people. 

It’s hard to deny that Tennessee’s law treats people differently based on sex. For one, the Tennessee law explicitly states that its purpose is to “encourage minors to appreciate their sex” and prohibit treatments that might “encourage minors to become disdainful of their sex.” As Justice Elena Kagan put it on Wednesday, “sounds to me like we want boys to be boys and we want girls to be girls.”

But at oral argument on Wednesday, Chief Justice John Roberts kept trying to dodge that constitutional analysis by describing the medical science around gender-affirming care as “evolving” and “technical.” “Here, it seems to me that the medical issues are much more heavily involved” than in other sex discrimination cases the court has ruled on, Roberts said. “Doesn’t that make a stronger case for us to leave those determinations to the legislative bodies rather than try to determine them for ourselves?”

Justice Brett Kavanaugh repeatedly made similar points about stepping back. “The Constitution doesn’t take sides on how to resolve that medical and policy debate,” he said. “Why isn’t it best to leave it to the democratic process?”

But the premise that the court was being asked to make a scientific determination was simply untrue. Again, the question before the court was whether Tennessee relied on sex to ban gender-affirming care. That’s because while the Constitution may not take a position on a certain medical treatment, it does take a position on whether a treatment can be denied on the basis of sex. As Solicitor General Elizabeth Prelogar, arguing for the United States government, put it to Roberts, “It would be a pretty remarkable thing for the Court to say that just because we’re in the space of medical regulation, you are not going to apply the traditional standards that ordinarily are applied when there’s a sex classification.” It would also be a classic Roberts move: reaching a radical conclusion while claiming the mantle of restraint.

So Roberts theorized the justices have a constitutional duty to defer to the legislature. “It’s not really so much a question of qualifications,” Roberts said, even though he had repeatedly suggested that it was. “It’s more questions of constitutional allegation of authority. We might think that we can do just as good a job with respect to the evidence here as Tennessee or anybody else, but my understanding is that the Constitution leaves that question to the people’s representatives rather than to nine people, none of whom is a doctor.”

“The medical purpose is utterly and entirely about sex.”

This notion of the humble court flies in contrast with the Roberts’ Court’s usual pattern of deciding cases in a manner that augments its own authority. Time and again, the justices have let neither mootness nor irreparably weak standing theories stop them from ruling when they want to decide a hot button issue. The justices have invented the so-called “major questions doctrine” to shoot down agency programs they deem too big or expensive to enact without clear congressional authorization, leaving the nine justices to decide whether an action survives—not the elected branches. Roberts has authored several of these opinions.

And last term, the court threw out Chevron deference, the judiciary’s decades-long practice of deferring to reasonable agency interpretations of statutes when the law is unclear. The opinion, by Roberts, was a judicial power grab: rather than defer to the expertise of agency policy-makers and scientists, judges should take it upon themselves to second guess all manner of US regulations. As Kagan wrote in her dissent: “In recent years, this Court has…substituted its own judgment on workplace health for that of the Occupational Safety and Health Administration; its own judgment on climate change for that of the Environmental Protection Agency; and its own judgment on student loans for that of the Department of Education. But evidently that was, for this Court, all too piecemeal.”

Despite this track record of amassing power, on Wednesday, Roberts shifted directions to urge deference. Conservatives on the court rarely grant such deference to the federal government—at least under a Democratic president—but often reserve it for states seeking a constitutionally dubious outcome. This may reflect an ideological dislike for over-regulating states. But it also demonstrates an aversion to enforcing the Constitution’s bedrock civil rights protections.

A good example are the court’s decisions granting states almost entirely free rein to gerrymander legislative and congressional maps. In 2017, the court was served an opportunity to place constitutional limits on extreme partisan gerrymandering. But during oral argument, Roberts spurned it, calling the proposed method of determining when voting boundaries are unconstitutional “sociological gobbledygook,” and, in writing for the court, Roberts declined to decide the issue on a technicality. In a subsequent 2019 case heard after the roster of justices had shifted, Roberts had the votes for the outcome he wanted and authored an opinion holding that partisan gerrymandering was a political issue that could not be litigated in federal court. The federal judiciary was, conveniently for Republicans in the case, bowing out. (It’s worth noting that it appears that next year’s GOP majority in the House of Representatives will be a result of the court’s gerrymandering permission slip.) In 2023, the court made it much harder to fight gerrymandering that uses race to sort voters. Writing for the conservative majority, Justice Samuel Alito created a new standard for racial gerrymandering cases, now requiring that courts act with the “presumption that the legislature acted in good faith.” Under such a presumption, courts are instructed that the word of the legislators outweighs their deeds.

On Wednesday, that same kind of instruction appeared likely to carry the day in when it comes to gender-affirming care bans. Rather than assess whether legislators use sex to unconstitutionally limit access to the drug and whether doing so is justified, the justices could simply defer to the good judgment of the legislators.

The Democratic appointees to the court were alarmed by the implications of Roberts’ and Kavanaugh’s questions. “I’m suddenly quite worried about the role of the core questions and the constitutional allocation of authority concerns,” Justice Ketanji Brown Jackson said. Jackson explained that the court simply needed to engage in a two-step analysis. First, does the law draw lines on the basis of sex, and second, if it does, is that delineation justified? 

“We’re undermining the foundations of some of our bedrock equal protection cases.”

Jackson pointed to a bedrock civil rights case, Loving v. Virginia, in which the Supreme Court banned anti-miscegenation laws as a violation of equal protection. In that case, she noted, Virginia argued that the court should defer to the states because the science on interracial marriage was in doubt. In 1967, the court declined. But on Wednesday, it looked like the Roberts’ court might take the bait.

If this court decides “there are lots of good reasons for this policy and who are we as the Court to say otherwise,” warned Jackson, “I’m worried that we’re undermining the foundations of some of our bedrock equal protection cases.”

The three Democratic appointees see Tennessee’s ban as treating people differently based on their sex, which would raise the bar a state must clear to justify the law. (The liberals also likely agree that transgender people should be, in the eyes of the law, a protected class so that laws targeting them be subjected to more intense judicial scrutiny.) 

The argument that Tennessee’s law discriminates based on sex was laid out multiple times and is fairly simple. If a boy seeks puberty blockers to prevent precocious puberty, he can get them. If a transgender boy seeks them to stop puberty, he cannot get them. In other words, access to the drug depends on the biological sex of the child requesting it. That, the plaintiffs argue, is sex discrimination. The law “prohibits inconsistency with sex,” Prelogar argued, in the same way that laws once prohibited people dressing like the opposite sex or women from pursuing certain professions.

Tennessee denies any sex discrimination, arguing instead that it is not banning access to puberty blockers and hormones based on sex, but rather purpose. If a boy seeks puberty blockers to stop precocious puberty, the drugs are allowed. If the same boy requests them to treat gender dysphoria, the drugs are denied. The underlying medical condition is different. “Its application turns entirely on medical purpose, not a patient’s sex,” Matthew Rice, Tennessee’s solicitor general, told the justices Wednesday. 

The problem with that analysis, the liberal justices countered, is that the purpose of hormones and puberty blockers is to control sexual development. If a boy and a girl both want to take testosterone for the same purpose—perhaps to deepen the register of their voice—only the boy can do so, Jackson pointed out. As Prelogar put it, under the law “you can’t have these medications to live or identify in a manner inconsistent with your sex.” Kagan was more blunt. “It’s a dodge to say that this is not based on sex, it’s based on medical purpose, when the medical purpose is utterly and entirely about sex.”

Which is why the justices may choose, boldly and consequentially, to ignore their own duty to analyze the law’s equal protection impact.

“If Tennessee can have an end run around heightened scrutiny by asserting at the outset that biology justifies the sex-based differential in the law, that would undermine decades of this Court’s precedent,” Chase Strangio of the ACLU said Wednesday. And it would undermine the rights of transgender people—and likely those of many others—as well.

Pete Hegseth, the Fox News anchor whom Donald Trump has tapped to be his defense secretary, has come under intense scrutiny for his mistreatment of women, including an allegation of rape. One of his critics was, at one time, his own mother.

“That is the ugly truth.”

In 2018, Penelope Hegseth wrote her son an email in which she laid into him for poor behavior and disrespect toward women. “You are an abuser of women—that is the ugly truth and I have no respect for any man that belittles, lies, cheats, sleeps around, and uses women for his own power and ego,” she wrote in the letter, obtained by the New York Times. 

Hegseth chastised her son for how he treated his wife, Samantha, in the divorce proceedings that prompted her to send her April 2018 email. She concluded it by writing, “On behalf of all the women (and I know it’s many) you have abused in some way, I say… get some help and take an honest look at yourself…”

Reached by the Times yesterday, Hegseth defended her son and recanted the accusations in the email. She said it was written in anger, and that immediately afterward, she had followed up with a second email apologizing for the first.

Penelope Hegseth isn’t the only woman to raise question about her son’s treatment of women. Most seriously, Pete Hegseth was accused of rape while attending a 2017 Republican women’s conference in Monterey, California. Hegseth denies the allegation, saying the encounter was consensual, but paid the woman a settlement in 2020. His lawyer said the payment was to ensure the allegation didn’t cost him his Fox News job.

Hegseth also has a history of cheating on his spouses. His first marriage ended due to infidelity, according to the divorce judgement. So did his second; that divorce prompted the email lashing from his mother. He is now married to the woman with whom he fathered a child while married to his second wife, Samantha.

Samantha “did not ask for or deserve any of what has come to her by your hand,” Penelope Hegseth wrote in the email. “Neither did Meredith,” she added, referring to his first wife.

Hegseth’s treatment of women is set to be a major issue during his prospective confirmation hearings in 2025—though not necessarily a dealbreaker. In the past, Republicans have rallied around nominees accused of sexual assault, such as when they circled the wagons to confirm Supreme Court Justice Brett Kavanaugh.

Trump himself has been found liable for sexual assault, and faced numerous other allegations of assault and cheating. If the commander-in-chief can get away with it, maybe Hegseth can too.

Democrats will have the unenviable task of pushing back against a second Trump administration as the minority party across Washington. And in the House of Representatives, some Democrats are openly wondering whether the septuagenarian leader of their caucus on the Judiciary Committee is up to the task.

According to the New York Times, a movement is afoot to force 77-year old Rep. Jerrold Nadler, a member from New York since 1992, to step aside and let a younger, more energetic opponent of Donald Trump take charge. If the motif sounds familiar, it may be because the Democrats are generally led by aging long-timers, from President Joe Biden in the White House to committee chairs like Nadler. Now, they must reckon with whether loyalty to these elder statesmen is a winning strategy.

The battle raises the question of how far Democrats will go to shake up their own ranks.

Two years ago, Nancy Pelosi, then 82, stepped down as leader of the House Democrats. Today, she is reportedly one voice urging a changing of the guard on the Judiciary Committee. According to the Times, Pelosi has encouraged Rep. Jamie Raskin, who first won his Maryland seat in 2o16, to challenge Nadler for the job of ranking member on the committee.

Raskin, a constitutional lawyer, gained a nationwide profile for leading the second impeachment trial against Trump in 2021. Current House leadership, according to the Times, are staying neutral in the race. But for Democrats, who generally don’t abide challengers to incumbent leaders, public neutrality is a marked shift. Still, Raskin has taken his time weighing any challenge to Nadler, with no decision announced.

The debate over who will lead the committee’s Democrats is part of a prospective much larger remaking of the Democratic Party in the weeks, months, and years to come. After losing the 2024 elections, the party already has multiple candidates seeking to lead the Democratic National Committee, the central organ of the party, offering competing visions for how to win back a majority of Americans. Within the halls of Congress, Democrats similarly must grapple with the most effective way to hold a Trump administration accountable while in the minority.

In the context of that struggle, the choice of a Democratic leader at the Judiciary Committee is unusually consequential. Trump is widely expected to try to use the Justice Department, which the panel oversees, to exact political revenge. From immigration to abortion and beyond, he promises to push the bounds of presidential power. The committee will be at the center of those fights, and its leader charged with playing a central roles in illuminating and fighting any abuses.

Nadler isn’t the only ranking Democrat facing resistance. The Democrat currently leading the caucus on the Agriculture Committee, Rep. David Scott of Georgia, is 79. Two Democrats are challenging him for the spot. And Rep. Jared Huffman of California, 60, is challenging Rep. Raúl Grijalva of Arizona, 76, for the top spot on the Committee on Natural Resources.

“Now, with the shockwave of Trump’s ‘First 100 Days’ agenda about to slam into our committees, effective committee work led by our Ranking Members will be critical to limiting the damage from Trump’s Project 2025 agenda,” Huffman said in a statement outlining his pitch. (Grijalva has said he will only serve two more years in Congress as he battles lung cancer.)

These fights raise the question of how far Democrats will go to shake up their own ranks in the wake of a demoralizing loss—or if they will stay the course under leaders who just weeks ago oversaw that defeat.

Pete Hegseth, the Fox News anchor whom Donald Trump has tapped to be his defense secretary, has come under intense scrutiny for his mistreatment of women, including an allegation of rape. One of his critics was, at one time, his own mother.

“That is the ugly truth.”

In 2018, Penelope Hegseth wrote her son an email in which she laid into him for poor behavior and disrespect toward women. “You are an abuser of women—that is the ugly truth and I have no respect for any man that belittles, lies, cheats, sleeps around, and uses women for his own power and ego,” she wrote in the letter, obtained by the New York Times. 

Hegseth chastised her son for how he treated his wife, Samantha, in the divorce proceedings that prompted her to send her April 2018 email. She concluded it by writing, “On behalf of all the women (and I know it’s many) you have abused in some way, I say… get some help and take an honest look at yourself…”

Reached by the Times yesterday, Hegseth defended her son and recanted the accusations in the email. She said it was written in anger, and that immediately afterward, she had followed up with a second email apologizing for the first.

Penelope Hegseth isn’t the only woman to raise question about her son’s treatment of women. Most seriously, Pete Hegseth was accused of rape while attending a 2017 Republican women’s conference in Monterey, California. Hegseth denies the allegation, saying the encounter was consensual, but paid the woman a settlement in 2020. His lawyer said the payment was to ensure the allegation didn’t cost him his Fox News job.

Hegseth also has a history of cheating on his spouses. His first marriage ended due to infidelity, according to the divorce judgement. So did his second; that divorce prompted the email lashing from his mother. He is now married to the woman with whom he fathered a child while married to his second wife, Samantha.

Samantha “did not ask for or deserve any of what has come to her by your hand,” Penelope Hegseth wrote in the email. “Neither did Meredith,” she added, referring to his first wife.

Hegseth’s treatment of women is set to be a major issue during his prospective confirmation hearings in 2025—though not necessarily a dealbreaker. In the past, Republicans have rallied around nominees accused of sexual assault, such as when they circled the wagons to confirm Supreme Court Justice Brett Kavanaugh.

Trump himself has been found liable for sexual assault, and faced numerous other allegations of assault and cheating. If the commander-in-chief can get away with it, maybe Hegseth can too.

Democrats will have the unenviable task of pushing back against a second Trump administration as the minority party across Washington. And in the House of Representatives, some Democrats are openly wondering whether the septuagenarian leader of their caucus on the Judiciary Committee is up to the task.

According to the New York Times, a movement is afoot to force 77-year old Rep. Jerrold Nadler, a member from New York since 1992, to step aside and let a younger, more energetic opponent of Donald Trump take charge. If the motif sounds familiar, it may be because the Democrats are generally led by aging long-timers, from President Joe Biden in the White House to committee chairs like Nadler. Now, they must reckon with whether loyalty to these elder statesmen is a winning strategy.

The battle raises the question of how far Democrats will go to shake up their own ranks.

Two years ago, Nancy Pelosi, then 82, stepped down as leader of the House Democrats. Today, she is reportedly one voice urging a changing of the guard on the Judiciary Committee. According to the Times, Pelosi has encouraged Rep. Jamie Raskin, who first won his Maryland seat in 2o16, to challenge Nadler for the job of ranking member on the committee.

Raskin, a constitutional lawyer, gained a nationwide profile for leading the second impeachment trial against Trump in 2021. Current House leadership, according to the Times, are staying neutral in the race. But for Democrats, who generally don’t abide challengers to incumbent leaders, public neutrality is a marked shift. Still, Raskin has taken his time weighing any challenge to Nadler, with no decision announced.

The debate over who will lead the committee’s Democrats is part of a prospective much larger remaking of the Democratic Party in the weeks, months, and years to come. After losing the 2024 elections, the party already has multiple candidates seeking to lead the Democratic National Committee, the central organ of the party, offering competing visions for how to win back a majority of Americans. Within the halls of Congress, Democrats similarly must grapple with the most effective way to hold a Trump administration accountable while in the minority.

In the context of that struggle, the choice of a Democratic leader at the Judiciary Committee is unusually consequential. Trump is widely expected to try to use the Justice Department, which the panel oversees, to exact political revenge. From immigration to abortion and beyond, he promises to push the bounds of presidential power. The committee will be at the center of those fights, and its leader charged with playing a central roles in illuminating and fighting any abuses.

Nadler isn’t the only ranking Democrat facing resistance. The Democrat currently leading the caucus on the Agriculture Committee, Rep. David Scott of Georgia, is 79. Two Democrats are challenging him for the spot. And Rep. Jared Huffman of California, 60, is challenging Rep. Raúl Grijalva of Arizona, 76, for the top spot on the Committee on Natural Resources.

“Now, with the shockwave of Trump’s ‘First 100 Days’ agenda about to slam into our committees, effective committee work led by our Ranking Members will be critical to limiting the damage from Trump’s Project 2025 agenda,” Huffman said in a statement outlining his pitch. (Grijalva has said he will only serve two more years in Congress as he battles lung cancer.)

These fights raise the question of how far Democrats will go to shake up their own ranks in the wake of a demoralizing loss—or if they will stay the course under leaders who just weeks ago oversaw that defeat.

During this year’s campaign, Donald Trump disowned Project 2025, the Heritage Foundation agenda that would transform the federal government’s enforcement powers into political weapons while selling off the rest to the highest bidder, by swearing he didn’t know who was behind it. But now that voting is over, he’s finding the plan a handy way to fill positions in his incoming administration.

Carr is ready to punish media companies for coverage he dislikes.

On Sunday, Trump announced he would nominate Brendan Carr to lead the Federal Communications Commission. Carr, already an FCC commissioner, was the only sitting member of government to author a chapter of Project 2025.

It’s not hard to predict what Carr will do with the FCC, since he wrote it all down. In Project 2025, in posts on X, and in interviews with conservative outlets including Fox News, Carr has laid out a vision for an FCC that would deregulate most broadcasters and telecommunications companies, while cracking down on and intimidating traditional media, growing the reach of conservative media, and unleashing disinformation on social media platforms. The result: An information ecosystem tilted further in Trump’s favor.

It’s a baseline for democracy that people are able to obtain accurate information. And it is a real threat to democracy when the government begins to target and punish the media for publishing disfavored viewpoints. Yet that is precisely what Carr has threatened to do.

In the days before Trump tapped Carr, the FCC commissioner seemed to be auditioning for the body’s top job by attacking NBC for featuring Vice President Kamala Harris on Saturday Night Live days before the election. In a series of posts on X, Carr alleged that the appearance violated the FCC’s “equal time” rule, which requires broadcasters in certain circumstances to provide candidates the opportunity to claim time on its airwaves if it gives such time to their opposition. But NBC did just that, and no rule was broken.

Nevertheless, Carr worked to create a sense of scandal over Harris’ appearance. That Sunday, Carr appeared on Fox News to threaten that the FCC could pull NBC broadcast licenses: “One of the remedies ultimately would be license revocation if we find that it’s egregious,” he said. In another appearance later that day, he offered a broader warning: “Every single option needs to be on the table for the FCC. Because we not only need to respond to this if it turns out to be as clear a violation as it looks like, but it sends a message to deter anybody from doing this again, whether it’s to benefit a Republican or a Democrat.”

While it could be argued Carr was simply warning broadcasters not to violate FCC rules, there’s a more ominous message if you read between the lines: As a FCC commissioner—and now, likely its chair—Carr is ready to use the FCC to punish media companies for coverage he dislikes. It’s a chilling example of how Carr could, over the next four years, wield the commission’s powers to squash dissent and create an environment of self-censorship among media organizations. Indeed, as the FCC’s chair, Carr could have a significant impact on the information environment both through legal means and the chilling effect of his threats—even if his words are not backed up by actual authority.

For example, Carr’s Project 2025 chapter rails against viewpoint discrimination by Big Tech, even though the FCC has no authority over social media platforms. But that might not matter. “It has an extremely chilling effect when a government actor and an FCC incoming chair says he’s going to go after tech platforms,” says Jessica González, co-CEO of Free Press, a nonpartisan group that advocates for a media ecosystem that fosters democracy. “Hate speech is on the rise on these platforms, in my opinion, because the leaders of those platforms don’t want to get into legal troubles with Donald Trump.”

With Carr as FCC chair, the world’s richest man stands to get a whole lot richer.

Despite Carr’s criticism of tech companies, he is generally pro-business and anti-regulation. He calls for ending net neutrality and allowing media companies to grow their market share. That kind of relaxation of the commission’s anti-consolidation rules could help Sinclair, the conservative broadcast company, execute its plans to buy up as many local TV stations as possible, increasing the MAGA movement’s control of local news.

Then there is Carr’s relationship with Elon Musk. If his contribution to Project 2025 and on-air media bullying weren’t enough to get Trump’s attention, his burgeoning friendship with the world’s richest man and Trump mega donor surely didn’t hurt.

Carr appears to have initiated a public bromance with Musk. As Politico detailed last month, Carr has used both his official position to support Musk and his companies, as well as his words in interviews and on X. In turn, Musk has promoted Carr’s posts on the platform he owns, and even took a picture with him when Carr visited a SpaceX facility in Texas.

“It poses a conflict of interest that Brendan Carr sucked up to Elon Musk as a strategy to get appointed by Donald Trump,” says González, “because of the amount of public funding that Musk receives from the federal government and from the FCC in particular.”

With Carr as FCC chair, the world’s richest man stands to get a whole lot richer. During Trump’s first term, the FCC awarded Musk’s satellite internet company, Starlink, $885 million to bring internet access to rural areas. But under the Biden administration, the FCC, worried the funding might be poorly spent, stripped related contracts from Starlink and several other companies. Carr criticized that decision and claimed it was political, and while that pot of money is likely gone, there’s an even bigger one Starlink could drain. Carr, who has said he wants the government to fund Starlink’s work, recently told Politico that he believes about a third of some $42 billion in federal funds set aside to boost broadband should go to satellite internet providers like Starlink.

With Carr as chairman, Musk’s $200 million bet on electing Trump could turn out to be an incredible bargain. From promises of revenge upon his enemies to opportunities for self-enrichment schemes, the project of the new Trump administration is almost certainly a combination of weaponization and plunder. Based on his actions thus far, Carr appears ready to aid in both endeavors.

During this year’s campaign, Donald Trump disowned Project 2025, the Heritage Foundation agenda that would transform the federal government’s enforcement powers into political weapons while selling off the rest to the highest bidder, by swearing he didn’t know who was behind it. But now that voting is over, he’s finding the plan a handy way to fill positions in his incoming administration.

Carr is ready to punish media companies for coverage he dislikes.

On Sunday, Trump announced he would nominate Brendan Carr to lead the Federal Communications Commission. Carr, already an FCC commissioner, was the only sitting member of government to author a chapter of Project 2025.

It’s not hard to predict what Carr will do with the FCC, since he wrote it all down. In Project 2025, in posts on X, and in interviews with conservative outlets including Fox News, Carr has laid out a vision for an FCC that would deregulate most broadcasters and telecommunications companies, while cracking down on and intimidating traditional media, growing the reach of conservative media, and unleashing disinformation on social media platforms. The result: An information ecosystem tilted further in Trump’s favor.

It’s a baseline for democracy that people are able to obtain accurate information. And it is a real threat to democracy when the government begins to target and punish the media for publishing disfavored viewpoints. Yet that is precisely what Carr has threatened to do.

In the days before Trump tapped Carr, the FCC commissioner seemed to be auditioning for the body’s top job by attacking NBC for featuring Vice President Kamala Harris on Saturday Night Live days before the election. In a series of posts on X, Carr alleged that the appearance violated the FCC’s “equal time” rule, which requires broadcasters in certain circumstances to provide candidates the opportunity to claim time on its airwaves if it gives such time to their opposition. But NBC did just that, and no rule was broken.

Nevertheless, Carr worked to create a sense of scandal over Harris’ appearance. That Sunday, Carr appeared on Fox News to threaten that the FCC could pull NBC broadcast licenses: “One of the remedies ultimately would be license revocation if we find that it’s egregious,” he said. In another appearance later that day, he offered a broader warning: “Every single option needs to be on the table for the FCC. Because we not only need to respond to this if it turns out to be as clear a violation as it looks like, but it sends a message to deter anybody from doing this again, whether it’s to benefit a Republican or a Democrat.”

While it could be argued Carr was simply warning broadcasters not to violate FCC rules, there’s a more ominous message if you read between the lines: As a FCC commissioner—and now, likely its chair—Carr is ready to use the FCC to punish media companies for coverage he dislikes. It’s a chilling example of how Carr could, over the next four years, wield the commission’s powers to squash dissent and create an environment of self-censorship among media organizations. Indeed, as the FCC’s chair, Carr could have a significant impact on the information environment both through legal means and the chilling effect of his threats—even if his words are not backed up by actual authority.

For example, Carr’s Project 2025 chapter rails against viewpoint discrimination by Big Tech, even though the FCC has no authority over social media platforms. But that might not matter. “It has an extremely chilling effect when a government actor and an FCC incoming chair says he’s going to go after tech platforms,” says Jessica González, co-CEO of Free Press, a nonpartisan group that advocates for a media ecosystem that fosters democracy. “Hate speech is on the rise on these platforms, in my opinion, because the leaders of those platforms don’t want to get into legal troubles with Donald Trump.”

With Carr as FCC chair, the world’s richest man stands to get a whole lot richer.

Despite Carr’s criticism of tech companies, he is generally pro-business and anti-regulation. He calls for ending net neutrality and allowing media companies to grow their market share. That kind of relaxation of the commission’s anti-consolidation rules could help Sinclair, the conservative broadcast company, execute its plans to buy up as many local TV stations as possible, increasing the MAGA movement’s control of local news.

Then there is Carr’s relationship with Elon Musk. If his contribution to Project 2025 and on-air media bullying weren’t enough to get Trump’s attention, his burgeoning friendship with the world’s richest man and Trump mega donor surely didn’t hurt.

Carr appears to have initiated a public bromance with Musk. As Politico detailed last month, Carr has used both his official position to support Musk and his companies, as well as his words in interviews and on X. In turn, Musk has promoted Carr’s posts on the platform he owns, and even took a picture with him when Carr visited a SpaceX facility in Texas.

“It poses a conflict of interest that Brendan Carr sucked up to Elon Musk as a strategy to get appointed by Donald Trump,” says González, “because of the amount of public funding that Musk receives from the federal government and from the FCC in particular.”

With Carr as FCC chair, the world’s richest man stands to get a whole lot richer. During Trump’s first term, the FCC awarded Musk’s satellite internet company, Starlink, $885 million to bring internet access to rural areas. But under the Biden administration, the FCC, worried the funding might be poorly spent, stripped related contracts from Starlink and several other companies. Carr criticized that decision and claimed it was political, and while that pot of money is likely gone, there’s an even bigger one Starlink could drain. Carr, who has said he wants the government to fund Starlink’s work, recently told Politico that he believes about a third of some $42 billion in federal funds set aside to boost broadband should go to satellite internet providers like Starlink.

With Carr as chairman, Musk’s $200 million bet on electing Trump could turn out to be an incredible bargain. From promises of revenge upon his enemies to opportunities for self-enrichment schemes, the project of the new Trump administration is almost certainly a combination of weaponization and plunder. Based on his actions thus far, Carr appears ready to aid in both endeavors.

There will be endless ink spilled over the 2024 election, trying to sort out the overlapping reasons why the world’s oldest democracy placed its fate in the hands of a would-be strongman who promises to dismantle democratic norms. There are many culprits—rising costs, raw white supremacy—but among them, let’s not forget the role of Chief Justice John Roberts and the US Supreme Court.

Under Roberts, American democracy felt humiliating, looked like a joke, and became increasingly tenuous.

The Supreme Court has become a major force in American politics in recent years. Increasingly, it has stepped in not just to decide questions of legal importance, but to resolve heated partisan disputes. From abortion and gun rights to gerrymandering and voting rights, the justices have become the arbiters of our toughest political questions. This wasn’t a sudden change, though it has accelerated in the last four years, leaving Americans as the proverbial frog in the pot. The water is now boiling.

Why Americans chose a demagogue to helm their democracy may be partially explained by the fact that, in many ways, the United States isn’t a democracy any longer—and in many ways, that’s thanks to the Roberts court. Our system was never perfect; on a basic level, the US only became a democracy in 1965 when it finally gave all Black people the right to vote.

But for nearly two decades, Roberts and his colleagues have done immense damage to the underpinnings of the democracy Americans painstakingly built. They have reallocated political power from ordinary citizens to billionaires, worsened congressional paralysis, and transformed many elections into meaningless exercises. If you are looking to explain why America picked Trump, you could do worse than look to these five Roberts-era Supreme Court cases that weakened our democracy and faith in government. After all, voters seem to have decided that when there’s so little to protect, there’s much less to lose.

Citizens United

To understand why elections are now so expensive—and why Trump’s campaign in particular was waged with money from outside billionaires—you have to go back to January 2010, when a 5-4 majority set the country on a new political path. The court’s Citizens United decision allowing corporations to spend unlimited sums to elect candidates of their choosing was expanded two months later by an appeals court ruling allowing anyone to contribute infinite amounts of money, including untraceable money, to influence elections. 

One of the most destructive forces in American politics in the last several years is how much is spent on them—and by whom. The 2024 election cycle was (in a record that is reliably reset every four years) the most expensive in US history. The presidential race alone garnered nearly $2.7 billion in donations, with the money raised split almost evenly between the candidates’ campaigns and outside groups attempting to influence the outcome. Former President Donald Trump’s campaign was powered by outside money, which totaled more than $710 million—compared to the $380 million his campaign took in directly. Eight years earlier, in 2016, Trump raised $333 million while outside spending on his behalf totaled just $100 million. 

In his majority opinion in Citizens United, Justice Anthony Kennedy justified dispensing with a century of campaign finance limitations by arguing that outside spending—money not given directly to a campaign—does not create the only kind of corruption he considered valid: a quid pro quo. “Independent expenditures do not lead to, or create the appearance of, quid pro quo corruption,” Kennedy insisted.

Compare Kennedy’s words to what we just witnessed. In April, Trump promised oil executives he would roll back environmental regulations if they spent $1 billion to reelect him, which looks awfully like the quid pro quo scenario Kennedy denied was possible. In what appeared to be a concession to a billionaire backer, Trump changed his position on banning TikTok after meeting with Jeff Yass, a key investor in the app, who gave to pro-Trump outside groups. And then there’s Elon Musk, the world’s richest man, who spent nearly $120 million late in the election backing Trump. Musk wanted the job of deciding which government regulations to eliminate, and, in September, Trump promised it to him. And Trump, ever obsequious to his biggest (outside) donor, praised Musk in his victory speech as a “genius” and a “star.” Never have billionaires played such a visible and important role in an American election, nor been promised so much in return.

It didn’t take long for the fallout of Citizens United to reallocate political power toward the richest Americans. (And through dark money groups, possibly wealthy foreigners too.) By 2015, a small coterie of the uber-rich were bankrolling a growing share of political spending. “In a time of historic wealth inequality, the decision has helped reinforce the growing sense that our democracy primarily serves the interests of the wealthy few, and that democratic participation for the vast majority of citizens is of relatively little value,” campaign finance expert Daniel Weiner wrote that year when assessing the decision’s impact.

That kind of democratic disenchantment can feed into authoritarian movements—even if they promise, like Trump’s, to further widen gaps in economic and political power.

Shelby County

Just three years after Citizens United, Roberts did something he’d been wanting to do since his days as a fresh-faced Reagan administration attorney: Gut the Voting Rights Act. The 1965 law had become the lynchpin of America’s multiracial democracy, but Roberts’ opinion in Shelby County v. Holder excising a powerful provision set the country back. 

In his majority opinion, Roberts jettisoned the law’s preclearance regime, which required advance federal approval of changes to election procedures in areas with a history of voter suppression, including most of the south. As justification, he wrote that the country had changed and no longer needed such a strong federal intrusion to protect voting rights. Justice Ruth Bader Ginsburg analogized Roberts’ logic to “throwing away your umbrella in a rainstorm because you are not getting wet.”

She was right. Unshackled, states rushed to implement restrictions on voting. Last year, on the 10-year anniversary of the decision, the Brennan Center for Justice counted at least 94 voter suppression laws across 29 states. It ushered in our current era of discriminatory voter ID laws, polling place changes, restrictions on mail-in ballots, and more. In Alabama, one of several states with new voter suppression laws, the Brennan Center found that the turnout gap between Black and White voters tripled after the court’s decision, from 3 percent in 2012 to 9 percent in 2022, a difference of tens of thousands of voters. In subsequent cases, Roberts continued to remove the VRA’s protections. This election cycle, the Republican Party fabricated a false narrative of non-citizens voting, in part to justify imposing or keeping burdensome proof of citizenship requirements when registering or voting. This is the next frontier of voter suppression—and the Supreme Court weighed in August with a thumbs up. 

The court has also greenlit efforts to purge voter rolls in a manner that disproportionately affects poor and minority voters. In 2024, Trump and his allies launched discredited lawsuits seeking to force purges across the country, with the Supreme Court stepping in to allow one such purge despite a federal law prohibiting it so close to the election. 

The Roberts court’s decisions also changed the experience of voting; many of the same urban voters of color who, in polls, expressed low confidence in American democracy and seem to have turned to Trump, also experienced the worst of the Shelby County fallout, including prohibitively long voting lines. In their communities, American democracy felt humiliating, looked like a joke, and was increasingly tenuous.

Rucho v. Common Cause

Gerrymandering has always been an issue in American politics. But in recent years, it’s become a serious problem. After Republicans’ well-timed nationwide sweep to power in 2010—the year of a decennial census, which is followed by redistricting—they drew political maps that aimed to lock in their majorities indefinitely. Thanks to unprecedentedly sophisticated computer models and granular data, their gerrymanders delivered historically lopsided results, distorting the partisan make-up of both state legislatures and Congress. A chorus of voices called on the Supreme Court to set some limits—and it appeared poised to do so.

But when a related case presented itself to the justices in 2017, Roberts wrote an opinion declining to touch the issue on a technicality. A year later, with Kennedy, one of the court’s sometime swing votes, replaced by Trump-appointee Justice Brett Kavanaugh, Roberts blessed partisan gerrymandering. Federal courts, he ruled, must stay out of the way. 

The result is that several states have gotten away with partisan gerrymandering that not only warps their states’ politics, but also their congressional delegations—and with it, which party controls the House. The Brennan Center estimates that this cycle, gerrymandering gives Republicans a 16-seat advantage in the House of Representatives. That margin may be enough to determine which party controls the chamber next year—and consequently, whether Trump will have any check on his authoritarian ambitions.

There’s another way gerrymandering’s warping effect paved the way for Trump. Rather than competitive districts, conservatives in Congress are ensconced in bright red ones, only afraid that a more conservative challenger will come along. In the years after 2010, and coinciding with Citizens United, polarization deepened as more moderate Republicans were replaced with adherents of the Tea Party movement—the antecedent to Trumpism. 

Biden v. Nebraska

By unleashing a gusher of money and allowing abuses of voting rights, the Roberts Court has made Congress more polarized and dysfunctional—essentially hobbling a co-equal branch of government. While politicians always campaign on policies they can’t or won’t deliver, if some voters soured on the Democrats because they didn’t do enough of what they promised, they may have been experiencing a very real effect of Congressional paralysis. 

Student loan forgiveness is a perfect example: Biden wanted to keep his commitment to forgive some federal student debt, but getting it through Congress was a nonstarter. Finally, Biden’s Department of Education used its own authority to forgive $400 billion in student debt. 

Not so fast, said John Roberts. In Biden v. Nebraska, Roberts blocked Biden’s loan forgiveness plan. To do this, he used a new doctrine the conservative justices had recently begun deploying to justify stepping in to stop executive policies they dislike. If voters are mad Biden didn’t deliver more on student loan forgiveness, they should be mad at Roberts and his colleagues. 

The loan forgiveness program is a vivid example of a larger problem. Between congressional dysfunction and judicial veto, it’s hard to get stuff done. What’s the point in preserving a system where the policies politicians campaign on disappear into the ether? It’s certainly not a system that inspires trust.

Trump v. United States

After Trump lost the 2020 election, he attempted to stay in office by plotting to overturn the will of the voters, culminating in a violent insurrection at the US Capitol. In the summer of 2023, special counsel Jack Smith brought charges against him for his role in the scheme. A trial was scheduled for March 2024, during the Republican primaries. But the Supreme Court was there to help Trump.

The ex-president tried to delay and ultimately derail the trial by claiming that he is immune from prosecution for official acts made while in office. It was an outlandish claim. (Just imagine: a coup attempt is an unpunishable offense?) Between December 2023 and July 2024, the Supreme Court took multiple steps to delay the resolution of the immunity question, each time pushing a trial date further and further down the road, helping Trump sail through the primaries and, as the general election got underway, making it less likely a trial would happen before November.

Then, on July 1, John Roberts released a stunning opinion. He bought Trump’s argument—hook, line, and sinker. Former Presidents are now immune from criminal prosecution for anything deemed an official act. Even evidence of a crime is inadmissible if it involved official acts. The court, with Roberts in the lead, had not only removed a serious impediment to Trump’s reelection efforts—but ensured that should Trump return to the White House, he would do so with more power than any president ever before. Justice Sonia Sotomayor’s chilling dissent laid out the stakes: “When he uses his official powers in any way, under the majority’s reasoning, he now will be insulated from criminal prosecution. Orders the Navy’s Seal Team 6 to assassinate a political rival? Immune. Organizes a military coup to hold onto power? Immune. Takes a bribe in exchange for a pardon? Immune. Immune, immune, immune.”

Now, we are there. Trump will be president again, immune from criminal liability, surrounded by loyalists, and likely with the GOP in control of Congress. In his first term, the Supreme Court was often called upon to limit Trump’s worst—and most obviously illegal—actions. But that was a different iteration of the Roberts court: In 2017 and 2018, it still had Kennedy and Ginsburg. Today, thanks to three Trump appointees, it has a hard right 6-3 majority.

When we think about the darkness of Trump’s second term agenda, from detaining millions of immigrants in camps to prosecuting his political rivals to using the US military to put down anti-Trump protests, we have to think about what the Supreme Court will do. As Georgetown Law professor Steve Vladeck wrote in his substack, One First, “it seems more than likely that the Supreme Court—this Supreme Court—will be the only institution standing between Trump and…whatever Trump wants to do.” 

Roberts significantly shaped Trump’s campaign and the democracy we have today. Now that he will be one of the only Americans with power to temper Trump’s worst impulses, remember that he already enabled them.

The Republican Party is on track to win control of the Senate, a significant victory that will allow the GOP to exercise power over judicial appointments and executive branch appointees.

If Trump retakes the White House, GOP Senate control will clear his path to make significant changes to the judiciary, including possibly appointing multiple Supreme Court justices. A GOP Senate is also likely to handily approve his Cabinet picks and other appointments, allowing Trump to place loyalist allies throughout the government.

The Senate map favored Republicans, and left Democrats on defense.

If Vice President Kamala Harris wins, a Republican Senate would block her judicial picks, possibly her Cabinet picks, and her legislative priorities.

The Senate map favored Republicans this cycle. While Democrats were more broadly on the defense, only three Republicans were in tight reelection races, and all three were in red states where the incumbent Republican was likely to win. Meanwhile, with the retirement of West Virginia Democrat Joe Manchin, Republicans were destined a pickup in the GOP-voting state. His decision not to seek reelection almost guaranteed, at minimum, a tied Senate, and the GOP still had several prospects for picking up new seats.

Several vulnerable Democrats were running for reelection in swing states and red states, providing Republicans with many opportunities to pick up seats and secure a majority. In Ohio, incumbent Democrat Sherrod Brown, a progressive and longtime union ally, lost his race to Bernie Moreno, who made millions running a car dealership empire with a history of worker exploitation. Sen. Tammy Baldwin in Wisconsin ran against Eric Hovde, another millionaire whom she attacked for spending most of his time in California.

And while the overall map was difficult for Democrats, in the final months of the race, it became clear that Republican Sen. Deb Fischer, from the solidly red state of Nebraska, was in a surprisingly tight race against independent Dan Osborn.

It started with Georgia: a handful of bomb threats sent to polling locations in heavily Democratic areas. Two polling sites in Union City outside Atlanta, where the population is nearly 90 percent Black, were temporarily shut down. Georgia officials, citing federal law enforcement, named Russia as the culprit, as the threats had come from that nation’s email domains.

As Election Day went on, the threats kept coming, causing polls to close and evacuate for short periods. It seems Russia was brazenly interfering on Trump’s behalf, as it has in the past—but more openly this time.

There have been dozens of bomb threats today in blue areas around Atlanta. In Fulton County, the police chief said law enforcement had responded to 32. Multiple precincts faced temporary closures. “They don’t want us to have a smooth, fair, and accurate election,” said Secretary of State Brad Raffensperger.

The threats targeted Democratic areas in other swing states as well. Several were sent to Arizona’s Navajo County, where many Native Americans vote. (Secretary of State Adrian Fontes also blamed Russia.) The critical “Blue Wall” states of Michigan, Wisconsin, and Pennsylvania received threats too, as did Minnesota, Maine, and Ohio, according to various reports. “The FBI is aware of bomb threats to polling locations in several states, many of which appear to originate from Russian email domains,” the agency said in a statement. “None of the threats have been determined to be credible thus far.”

If Russia is indeed the culprit, it means President Vladimir Putin feels sufficiently emboldened to help Donald Trump openly on Election Day by attempting to disenfranchise Democratic voters. This effort follows the recent disinformation of viral videos by a Russian-backed propaganda outfit. As Mother Jones has reported, evidence links a Moscow-backed disinformation unit to fake videos stoking fears of voter fraud in recent weeks. One of the videos purported to show recent Haitian immigrants voting for Kamala Harris in Georgia; in another, Haitian immigrants brag about voting in multiple precincts in the state. A third bogus video shows mail-in ballots for Trump being destroyed in Pennsylvania.

Putin would clearly prefer to have Trump in the White House. The former president has said he would broker peace between Russia and Ukraine, which would be a win for Russia, has questioned America’s membership in NATO, and is generally solicitous of Putin and other authoritarian leaders. Harris, on the other hand, has stated her commitment to supporting Ukraine and strengthening NATO.

In the wake of the bomb scares, the US intelligence community has warned that Putin’s goal is to sow chaos and distrust in the democratic process. They don’t expect Russian interference to go away just because Election Day is winding down. “If chaos is the point,” Chris Krebs, former director of the federal Cybersecurity and Infrastructure Security Agency, told the Washington Post, “the most opportune window to create mischief is the post-November 5th pre-certification period.”

The Republican Party is on track to win control of the Senate, a significant victory that will allow the GOP to exercise power over judicial appointments and executive branch appointees.

If Trump retakes the White House, GOP Senate control will clear his path to make significant changes to the judiciary, including possibly appointing multiple Supreme Court justices. A GOP Senate is also likely to handily approve his Cabinet picks and other appointments, allowing Trump to place loyalist allies throughout the government.

The Senate map favored Republicans, and left Democrats on defense.

If Vice President Kamala Harris wins, a Republican Senate would block her judicial picks, possibly her Cabinet picks, and her legislative priorities.

The Senate map favored Republicans this cycle. While Democrats were more broadly on the defense, only three Republicans were in tight reelection races, and all three were in red states where the incumbent Republican was likely to win. Meanwhile, with the retirement of West Virginia Democrat Joe Manchin, Republicans were destined a pickup in the GOP-voting state. His decision not to seek reelection almost guaranteed, at minimum, a tied Senate, and the GOP still had several prospects for picking up new seats.

Several vulnerable Democrats were running for reelection in swing states and red states, providing Republicans with many opportunities to pick up seats and secure a majority. In Ohio, incumbent Democrat Sherrod Brown, a progressive and longtime union ally, lost his race to Bernie Moreno, who made millions running a car dealership empire with a history of worker exploitation. Sen. Tammy Baldwin in Wisconsin ran against Eric Hovde, another millionaire whom she attacked for spending most of his time in California.

And while the overall map was difficult for Democrats, in the final months of the race, it became clear that Republican Sen. Deb Fischer, from the solidly red state of Nebraska, was in a surprisingly tight race against independent Dan Osborn.

It started with Georgia: a handful of bomb threats sent to polling locations in heavily Democratic areas. Two polling sites in Union City outside Atlanta, where the population is nearly 90 percent Black, were temporarily shut down. Georgia officials, citing federal law enforcement, named Russia as the culprit, as the threats had come from that nation’s email domains.

As Election Day went on, the threats kept coming, causing polls to close and evacuate for short periods. It seems Russia was brazenly interfering on Trump’s behalf, as it has in the past—but more openly this time.

There have been dozens of bomb threats today in blue areas around Atlanta. In Fulton County, the police chief said law enforcement had responded to 32. Multiple precincts faced temporary closures. “They don’t want us to have a smooth, fair, and accurate election,” said Secretary of State Brad Raffensperger.

The threats targeted Democratic areas in other swing states as well. Several were sent to Arizona’s Navajo County, where many Native Americans vote. (Secretary of State Adrian Fontes also blamed Russia.) The critical “Blue Wall” states of Michigan, Wisconsin, and Pennsylvania received threats too, as did Minnesota, Maine, and Ohio, according to various reports. “The FBI is aware of bomb threats to polling locations in several states, many of which appear to originate from Russian email domains,” the agency said in a statement. “None of the threats have been determined to be credible thus far.”

If Russia is indeed the culprit, it means President Vladimir Putin feels sufficiently emboldened to help Donald Trump openly on Election Day by attempting to disenfranchise Democratic voters. This effort follows the recent disinformation of viral videos by a Russian-backed propaganda outfit. As Mother Jones has reported, evidence links a Moscow-backed disinformation unit to fake videos stoking fears of voter fraud in recent weeks. One of the videos purported to show recent Haitian immigrants voting for Kamala Harris in Georgia; in another, Haitian immigrants brag about voting in multiple precincts in the state. A third bogus video shows mail-in ballots for Trump being destroyed in Pennsylvania.

Putin would clearly prefer to have Trump in the White House. The former president has said he would broker peace between Russia and Ukraine, which would be a win for Russia, has questioned America’s membership in NATO, and is generally solicitous of Putin and other authoritarian leaders. Harris, on the other hand, has stated her commitment to supporting Ukraine and strengthening NATO.

In the wake of the bomb scares, the US intelligence community has warned that Putin’s goal is to sow chaos and distrust in the democratic process. They don’t expect Russian interference to go away just because Election Day is winding down. “If chaos is the point,” Chris Krebs, former director of the federal Cybersecurity and Infrastructure Security Agency, told the Washington Post, “the most opportune window to create mischief is the post-November 5th pre-certification period.”

The morning of Election Day, Georgia Secretary of State Brad Raffensperger blamed Russia for creating bomb scares at polling places in the swing state of Georgia. “They’re up to mischief it seems,” Raffensperger said at a press conference of Russia’s efforts. “They don’t want us to have a smooth, fair, and accurate election.”

The bomb threats temporarily closed two voting sites in Union City, Georgia, just outside Atlanta, according to the Election Protection Coalition, which monitors Election Day disruptions. Union City is nearly 90 percent Black and therefore tends to be overwhelmingly Democratic. The county is attempting to extend voting hours at the affected locations.

Five non-credible bomb threats were called in on Tuesday morning. Raffensperger said Russia was the culprit and that federal law enforcement had helped make that determination.

The presidential race in Georgia is expected to be very close and it is one of the states that could determine who wins the White House. Russian President Vladimir Putin has a clear interest in former president Donald Trump retaking the White House. Trump is much more interested in appeasing Putin’s war in Ukraine, has expressed little loyalty to other allies, and is generally solicitous of the authoritarian leader. Vice President Kamala Harris, conversely, has stated her commitment to supporting Ukraine as well as strengthening NATO.

Georgia appears to be a target of Russian meddling this year. A fake video purporting to show recent Haitian immigrants illegally voting for Harris in the state was produced and disseminated by a Russian disinformation outfit, US intelligence officials revealed last week. And this is only the most recent example of a months-long effort by Russian-backed propaganda to target the Harris campaign. As Mother Jones previously reported, the disinformation group responsible for the Georgia video also is believed to be behind another fake video purporting to show ballots for Trump being destroyed in Pennsylvania.

On Friday evening, just as reporters were logging off, the Supreme Court let slip a clue about whether it would take up cases that could determine the outcome of a close election in the coming weeks. Specifically, the hint came in a statement from Justice Samuel Alito. Spoiler: He’s open to it.

Alito’s missive came as the Supreme Court declined to take up a case over mail-in ballots in Pennsylvania. The Republican National Committee had asked the court to throw out a Pennsylvania Supreme Court decision allowing voters who had forgotten to place their mail-in ballot into a secrecy envelope to vote a provisional ballot. By declining to weigh in, the Supreme Court allowed some valid Pennsylvania voters who made a mistake in returning their mail-in ballots to still vote. The RNC had asked the US Supreme Court to stop them.

In response, the justices unanimously declined to disenfranchise these voters and created the impression of a win for Democrats and more expansive voting rights. Technically, this is true. But as a signal of whether the justices intend to meddle in the outcome of the election, the message was muddled by Alito’s writing.

Typically, the justices wouldn’t have considered such a case, because the Supreme Court isn’t supposed to second guess state court interpretations of a state law. But these are not normal times. Last year, the justices decided that second-guessing state courts was within their remit if the state law they were interpreting was election-related. In Moore v. Harper, the Supreme Court gave itself the authority to intervene in state election law matters if a state court’s decision “transgress[ed] the ordinary bounds of judicial review” at the expense of state legislative power. It’s a vague and untested standard, and this is the first election under this new precedent. The Supreme Court now has become a Sword of Damocles hanging over every state court decision concerning election procedures.

The Supreme Court now has become a Sword of Damocles hanging over every state court decision concerning election procedures.

In a statement accompanying the court’s order, Alito agreed with the rest of the justices not to take the case but chalked it up to the facts of the case, which he said constrained the court’s ability to give the RNC their requested relief of banning provisional ballots for spoiled mail-in ballots. Justices Clarence Thomas and Neil Gorsuch joined Alito’s statement. In the past, problems with the facts have not stopped the court’s conservative wing from taking on and deciding any case it wanted to. There’s the website designer who wanted to discriminate against a client who didn’t exist; the football coach who claimed he prayed alone when pictures showed him surrounded by players; and the case against President Joe Biden’s student loan forgiveness plans on behalf of an entity that wanted nothing to do with the case. The Roberts court’s forbearance is not something to take for granted. So was the show of restraint with the Pennsylvania case a sign that the justices will not become involved in the 2024 election?

Probably not.

Alito signaled that he and his two colleagues might reopen this specific dispute and others like it in the coming weeks if another case were presented. He called the Pennsylvania Supreme Court’s decision “controversial” and the issue at stake “a matter of considerable importance.” As legal journalist Chris Geidner noted, this language is “a sure signal from the trio to the RNC, Donald Trump, and other possible litigants” and “clearly a set up.” Should Trump or his allies want to bring a new suit after the election, at least three justices would be open to taking the case. The question is, would a majority be willing to, as this case asked, deny people the right to vote? One framework for looking at a possible answer is by comparing the 2000 election to the 2020 election.

In 2000, the presidential election came down to a few thousand votes in Florida. It wasn’t clear who the winner would ultimately be if all of Florida’s votes were counted, but by mid-December, George W. Bush held a lead of 537 votes. The Florida Supreme Court had ordered a statewide recount of certain ballots, so the Bush campaign asked the Supreme Court to intervene. So when the justices halted the recount in a 5-4 decision, they handed the election to Bush in Bush v. Gore. In effect, they picked the president in what was a tossup situation.

In 2020, on the other hand, there were many entreaties for the federal courts, including the Supreme Court, to throw out ballots and hand the election to President Donald Trump. The efforts to contest the election were coming days and even weeks after it was clear that, with almost every swing state declaring Joe Biden the winner, this was not an undecided election. It was, barring very significant judicial meddling, an insurmountable lead, and despite his protestations, Trump had lost. In such a situation, the Supreme Court stepping in would have risked the court’s reputation. Why help Trump when it would only have given Biden, who would become president, a very good reason to consider court reform?

If tomorrow’s results look like a Bush v. Gore scenario, particularly if the single swing state of Pennsylvania looks like the new Florida, the court’s right flank may be faced with the opportunity to help in Trump’s election. After all, the court has taken multiple steps to help Trump retake the White House, most notably by scuttling his criminal trial over his involvement in the January 6 insurrection. They have also shown a willingness to help the Republican Party in their recent decision to allow Virginia to remove voters from the rolls in a manner contrary to federal law. Interfering again would be a continuation, not an aberration.

But if tomorrow’s results look more like 2020’s, and within a few days, Harris is the clear winner, a majority of the justices might find it unwise to stick their necks out for Trump. Famously, Trump doesn’t like to be associated with “losers.” The justices may feel the same way.

Donald Trump has promised to prosecute his political opponents should he retake the White House. He’s planned to remove the firewall that has traditionally existed between the White House and the Justice Department, and harness federal prosecutors into political dirty work.

But Trump isn’t waiting for Inauguration Day, or even Election Day, to get something similar going—and his first target is the press: In the last 24 hours, Trump has filed legal complaints against two news organizations with frivolous charges. Whether they succeed might be beside the point, because they are a warning shot for what is coming if he wins.

Media organizations are well aware of the risks of crossing Trump, and some already look to be backing down.

On Thursday, Trump sued CBS News over its October “60 Minutes” interview with Vice President Kamala Harris. In the suit, Trump argues that the interview was edited to make Harris look good, amounting to election interference. “To paper over Kamala’s ‘word salad’ weakness, CBS used its national platform on 60 Minutes to cross the line from the exercise of judgment in reporting to deceitful, deceptive manipulation of news,” the complaint alleges. He is asking for $10 billion in damages.

The suit is legally ludicrous, according to experts. “It’s ridiculous junk and should be mocked,” Harvard professor Rebecca Tushnet told CNN. But the fact that it was filed in Amarillo, Texas, is a sign that Trump means business. The only logical reason to file the suit in this division is to secure a friendly judge, a practice known as judge-shopping. And in Amarillo, the only federal judge happens to be one of the most ideologically-driven conservative judges in the country: Matthew Kacsmaryk. Kacsmaryk has shown a willingness to go beyond the bounds of the law to advance lawsuits he agrees with. Most famously, he eschewed long-held legal doctrine to block the FDA’s approval of the abortion drug Mifepristone. (The Supreme Court overruled him.)

There is also a political reason to file the suit, which follows weeks of Trump complaining in public about CBS’s editing of the interview. Being able to point to a lawsuit alleging media bias furthers his argument to supporters that the press is the enemy and is working for the other side.

It’s one thing for Trump to sue CBS as a citizen. But if he wins, Trump could make sure this type of suit comes from the Justice Department. It’s a warning shot to the media that any coverage Trump deems unfavorable, including an interview with a rival, could land them in court opposite the US Government.

Media organizations are well aware of the risks of crossing Trump, and some already look to be backing down. Exhibit A are the last-minute decisions by the billionaires who own the Washington Post and the Los Angeles Times to block their papers’ editors from making Harris endorsements at the last minute. Amazon CEO Jeff Bezos, who owns the Post, has billions in government contracts that could be nullified in retribution under a Trump presidency.

Trump is already targeting the Post. On Thursday, the campaign submitted a complaint to the Federal Election Commission alleging that, by paying to boost stories critical of Trump, the Washington Post illegally donated to the Harris campaign. Clearly, Bezos’ decision not to endorse Harris hasn’t appeased Trump.

These attacks on both the Post and CBS should sound alarm bells. They also follow Trump’s efforts to punish CNN for its coverage during his first term, and his repeated calls for every major television broadcaster to lose its broadcasting license. Whether Trump could pull off such a feat is unclear—for one thing, local affiliates hold the licenses—but the message Trump is broadcasting is being heard loud and clear: If Trump wins, he will retaliate against the press.

Indeed, he’s already started.