More than two years since the overturn of Roe v Wade, legal battles over abortion laws are as chaotic as ever. But occasionally, the challenges playing out state by state result in a string of good news for abortion rights. That was the case this week, with a cluster of court decisions that will expand abortion access in Nevada and North Dakota, and allow Missouri and Nebraska voters to weigh in on the issue in November.
On Thursday, District Court Judge Bruce Romanick in Bismarck, North Dakota, issued a powerful opinion siding with abortion providers who challenged a state law that had deemed their practice a felony.
In his order, which takes effect in two weeks, Rominick ruled that the North Dakota constitution’s protections for life, liberty, and the right to pursue happiness include the right to choose abortion. “A woman’s choice of whether or not to carry a pregnancy to term shapes the very nature and future course of her life, on nearly every possible level,” he wrote. “The Court finds that such a choice, at least pre-viability, must belong to the individual woman and not to the government.” He also struck down the ban for its vagueness, concluding that, at present, North Dakota doctors could be prosecuted if other physicians second-guessed their decision to provide an emergency abortion.
Virtually all abortions have been illegal in North Dakota since April 2023, when Republican Gov. Doug Burgum signed a ban with exceptions only to save the life of the pregnant person,or for rape and incest survivors within the first six weeks of pregnancy. North Dakota’s only abortion clinic moved across the state line to Minnesota in 2022, soon after the Supreme Court overturned Roe v. Wade, meaning most people seeking to end a pregnancy will have to leave the state.
But Romnick’s decision should make it easier for doctors to provide emergency abortions to patients with severe pregnancy complications—care that that is often withheld in abortion-ban states, with dire consequences. “It is now much safer to be pregnant in North Dakota,” Center for Reproductive Rights lawyer Meetra Mehdizadeh said in a statement on Friday.
Also on Thursday, a Nevada court order requiring the state Medicaid program to cover abortion became final after the state government declined to appeal an earlier ruling. Nevada will become the 18th state to allow Medicaid funds to cover abortion, the Associated Press reported.
That ruling is the result of a challenge brought under Nevada’s Equal Rights Amendment, which added language banning sex discrimination, along with many other types of discrimination, to the state constitution. Voters there supported the ERA by a nearly 18-point margin in 2022.
In their lawsuit, a Nevada abortion fund and the ACLU argued that the ban on Medicaid coverage amounted to sex discrimination because it denied low-income Nevadans who can become pregnant the ability to make decisions about their future. Back in March, a Clark County District Judge Erika Ballou had agreed—though her decision didn’t become final until this week.
”There was a time when we got it wrong and when women did not have a voice,” one judge wrote. “This does not need to continue for all time.”
“The court made clear that the state cannot withhold coverage for essential, sex-linked health care from low-income Nevadans,” ACLU Reproductive Freedom Project staff attorney Rebecca Chan explained in a statement. “As a result of this decision, Nevadans who have Medicaid as their health insurance will no longer need to fear that they will be forced to carry a pregnancy against their will.”
In November, voters in New York will decide whether to enshrine an ERA of their own—one of 10 states with abortion-related initiatives slated for the 2024 ballot. Yet initiatives in two of those states were in jeopardy until courts came to their rescue this week. On Tuesday, the Missouri Supreme Court threw out a last-minute claim arguing that the text of an abortion-rights initiative petition had omitted details required by state law; it ordered the anti-abortion secretary of state to certify the initiative for the ballot.
On Friday, the Nebraska Supreme Court ruled that dueling initiatives can appear on the ballot in that state, where current law bans abortion after 12 weeks. One of the initiatives, titled “Protect the Right to Abortion,” would create a state constitutional right for Nebraskans to get an abortion prior to “viability” (the hard-to-pinpoint moment in pregnancy when a fetus is able to survive outside the uterus). The other, titled “Protect Women and Children” would enshrine the current 12-week abortion ban in the state constitution.
If both pass, the one with the most votes prevails. But anti-abortion advocates had tried to kill the pro-abortion rights measure altogether by arguing that by regulating abortion before and after viability differently, it dealt with more than one subject, according to the Nebraska Examiner. Friday’s state Supreme Court ruling tossed that challenge, and ensures the vote on both questions will proceed.
Now, with 52 days left before voters will decide whether to add abortion protections to their state constitutions, the opinion from North Dakota’s Judge Rominick could offer some guidance.
“If we can learn anything from examining the history and prior traditions surrounding women’s rights, women’s health, and abortion in North Dakota, the Court hopes that we would learn this: that there was a time when we got it wrong and when women did not have a voice,” Rominick wrote. “This does not need to continue for all time, and the sentiments of the past, alone, need not rule the present for all time.”
When Project 2025 staffer and former Trump White House personnel chief John McEntee tried to score points on social media on Thursday by denying that women were “bleeding out” due to abortion bans, he probably didn’t expect them to reply to him directly.
“Can someone track down the women Kamala Harris said are bleeding out in parking lots because Roe v. Wade was overturned?” McEntee asked in a TikTok video filmed at a restaurant as he dipped fried food into sauce.
“Don’t hold your breath,” he added, smirking.
“I’m right here,” replied Carmen Broesder, a mother living in Idaho, which enacted a trigger law after the fall of Roe, a making it a felony for doctors to provide an abortion unless it was necessary “to prevent the death of the pregnant woman.”
In a TikTok video of her own, Broesder recalled how hospital staff turned her away from the ER three times during an excruciating 19-day miscarriage. She said she was repeatedly denied a procedure to remove tissue from the uterus—a procedure known as dilation and curettage (D&C) that is also used in abortions—and that they gave her just one dose of pain medication in 19 days. “I blacked out in my hallway due to blood loss,” she recounted.
In June, the Supreme Court gave Idaho hospitals the green light to perform emergency abortions to protect pregnant people’s health, as well as their life—but the ruling is temporary while the lower courts reconsider the issue. But the problem isn’t confined to Idaho. In Oklahoma, Jaci Statton developed heavy bleeding, dizziness, and weakness from a molar pregnancy, a condition in which a fertilized egg does not develop into a fetus. For more than a week, she told NPR, doctors denied her treatment, and she was transferred to three different hospitals. Ultimately, she had to drive three hours to an abortion clinic in Kansas to get an D&C.
“The record shows that, as a matter of medical reality, such cases exist,” Justice Elena Kagan wrote in a concurring opinion in the Idaho case. “Hospitals in Idaho have had to airlift medically fragile women to other States to receive abortions needed to prevent serious harms to their health. Those transfers measure the difference between the life-threatening conditions Idaho will allow hospitals to treat and the health-threatening conditions it will not.”
“I was told when I had a possible ectopic pregnancy that I would have to ‘wait until it made me septic’ to get the surgery to save my life.”
According to Rolling Stone, Broesder’s severe blood loss during her miscarriage caused erratic blood pressure and a stress response that led her to be diagnosed with a heart condition she said could lead to a heart attack if she gets too excited or upset. “I have to deal with these side effects for the rest of my life because of abortion laws,” Broesder said in her video.
Broesder’s experience is a clear illustration of what Vice President Kamala Harris was talking about when she responded to former president Donald Trump’s bizarre claim during the debate that “every legal scholar” wanted Roe v. Wade overturned. “Pregnant women who want to carry a pregnancy to term, suffering from a miscarriage, being denied care in an emergency room because the health care providers are afraid they might go to jail, and she is bleeding out in a car in the parking lot—she didn’t want that,” Harris said. “Her husband didn’t want that.”
McEntee, the founder of a conservative-only dating app, has a large following on TikTok, where he posts snarky and often offensive quips about race and gender designed to tickle his MAGA audience. But his video garnered thousands of first-person responses, many telling stories about severe medical complications after pregnant people were denied care.
“I was told when I had a possible ectopic pregnancy that I would have to ‘wait until it made me septic’ to get the surgery to save my life,” one commenter said.
“My daughter. Nearly lost her life after she miscarried triplets that didn’t expel her body & 3 hospitals wouldn’t remove them,” another replied.
“I’ve been anemic on and off since my weeks-long miscarriage,” wrote yet another commenter. “Three hospitals refused to give me a DNC or pill protocol. Unimaginable pain and distress.”
And so it goes, on and on, for more than 19,000 comments as of Saturday.
More than two years since the overturn of Roe v Wade, legal battles over abortion laws are as chaotic as ever. But occasionally, the challenges playing out state by state result in a string of good news for abortion rights. That was the case this week, with a cluster of court decisions that will expand abortion access in Nevada and North Dakota, and allow Missouri and Nebraska voters to weigh in on the issue in November.
On Thursday, District Court Judge Bruce Romanick in Bismarck, North Dakota, issued a powerful opinion siding with abortion providers who challenged a state law that had deemed their practice a felony.
In his order, which takes effect in two weeks, Rominick ruled that the North Dakota constitution’s protections for life, liberty, and the right to pursue happiness include the right to choose abortion. “A woman’s choice of whether or not to carry a pregnancy to term shapes the very nature and future course of her life, on nearly every possible level,” he wrote. “The Court finds that such a choice, at least pre-viability, must belong to the individual woman and not to the government.” He also struck down the ban for its vagueness, concluding that, at present, North Dakota doctors could be prosecuted if other physicians second-guessed their decision to provide an emergency abortion.
Virtually all abortions have been illegal in North Dakota since April 2023, when Republican Gov. Doug Burgum signed a ban with exceptions only to save the life of the pregnant person,or for rape and incest survivors within the first six weeks of pregnancy. North Dakota’s only abortion clinic moved across the state line to Minnesota in 2022, soon after the Supreme Court overturned Roe v. Wade, meaning most people seeking to end a pregnancy will have to leave the state.
But Romnick’s decision should make it easier for doctors to provide emergency abortions to patients with severe pregnancy complications—care that that is often withheld in abortion-ban states, with dire consequences. “It is now much safer to be pregnant in North Dakota,” Center for Reproductive Rights lawyer Meetra Mehdizadeh said in a statement on Friday.
Also on Thursday, a Nevada court order requiring the state Medicaid program to cover abortion became final after the state government declined to appeal an earlier ruling. Nevada will become the 18th state to allow Medicaid funds to cover abortion, the Associated Press reported.
That ruling is the result of a challenge brought under Nevada’s Equal Rights Amendment, which added language banning sex discrimination, along with many other types of discrimination, to the state constitution. Voters there supported the ERA by a nearly 18-point margin in 2022.
In their lawsuit, a Nevada abortion fund and the ACLU argued that the ban on Medicaid coverage amounted to sex discrimination because it denied low-income Nevadans who can become pregnant the ability to make decisions about their future. Back in March, a Clark County District Judge Erika Ballou had agreed—though her decision didn’t become final until this week.
”There was a time when we got it wrong and when women did not have a voice,” one judge wrote. “This does not need to continue for all time.”
“The court made clear that the state cannot withhold coverage for essential, sex-linked health care from low-income Nevadans,” ACLU Reproductive Freedom Project staff attorney Rebecca Chan explained in a statement. “As a result of this decision, Nevadans who have Medicaid as their health insurance will no longer need to fear that they will be forced to carry a pregnancy against their will.”
In November, voters in New York will decide whether to enshrine an ERA of their own—one of 10 states with abortion-related initiatives slated for the 2024 ballot. Yet initiatives in two of those states were in jeopardy until courts came to their rescue this week. On Tuesday, the Missouri Supreme Court threw out a last-minute claim arguing that the text of an abortion-rights initiative petition had omitted details required by state law; it ordered the anti-abortion secretary of state to certify the initiative for the ballot.
On Friday, the Nebraska Supreme Court ruled that dueling initiatives can appear on the ballot in that state, where current law bans abortion after 12 weeks. One of the initiatives, titled “Protect the Right to Abortion,” would create a state constitutional right for Nebraskans to get an abortion prior to “viability” (the hard-to-pinpoint moment in pregnancy when a fetus is able to survive outside the uterus). The other, titled “Protect Women and Children” would enshrine the current 12-week abortion ban in the state constitution.
If both pass, the one with the most votes prevails. But anti-abortion advocates had tried to kill the pro-abortion rights measure altogether by arguing that by regulating abortion before and after viability differently, it dealt with more than one subject, according to the Nebraska Examiner. Friday’s state Supreme Court ruling tossed that challenge, and ensures the vote on both questions will proceed.
Now, with 52 days left before voters will decide whether to add abortion protections to their state constitutions, the opinion from North Dakota’s Judge Rominick could offer some guidance.
“If we can learn anything from examining the history and prior traditions surrounding women’s rights, women’s health, and abortion in North Dakota, the Court hopes that we would learn this: that there was a time when we got it wrong and when women did not have a voice,” Rominick wrote. “This does not need to continue for all time, and the sentiments of the past, alone, need not rule the present for all time.”
When Project 2025 staffer and former Trump White House personnel chief John McEntee tried to score points on social media on Thursday by denying that women were “bleeding out” due to abortion bans, he probably didn’t expect them to reply to him directly.
“Can someone track down the women Kamala Harris said are bleeding out in parking lots because Roe v. Wade was overturned?” McEntee asked in a TikTok video filmed at a restaurant as he dipped fried food into sauce.
“Don’t hold your breath,” he added, smirking.
“I’m right here,” replied Carmen Broesder, a mother living in Idaho, which enacted a trigger law after the fall of Roe, a making it a felony for doctors to provide an abortion unless it was necessary “to prevent the death of the pregnant woman.”
In a TikTok video of her own, Broesder recalled how hospital staff turned her away from the ER three times during an excruciating 19-day miscarriage. She said she was repeatedly denied a procedure to remove tissue from the uterus—a procedure known as dilation and curettage (D&C) that is also used in abortions—and that they gave her just one dose of pain medication in 19 days. “I blacked out in my hallway due to blood loss,” she recounted.
In June, the Supreme Court gave Idaho hospitals the green light to perform emergency abortions to protect pregnant people’s health, as well as their life—but the ruling is temporary while the lower courts reconsider the issue. But the problem isn’t confined to Idaho. In Oklahoma, Jaci Statton developed heavy bleeding, dizziness, and weakness from a molar pregnancy, a condition in which a fertilized egg does not develop into a fetus. For more than a week, she told NPR, doctors denied her treatment, and she was transferred to three different hospitals. Ultimately, she had to drive three hours to an abortion clinic in Kansas to get an D&C.
“The record shows that, as a matter of medical reality, such cases exist,” Justice Elena Kagan wrote in a concurring opinion in the Idaho case. “Hospitals in Idaho have had to airlift medically fragile women to other States to receive abortions needed to prevent serious harms to their health. Those transfers measure the difference between the life-threatening conditions Idaho will allow hospitals to treat and the health-threatening conditions it will not.”
“I was told when I had a possible ectopic pregnancy that I would have to ‘wait until it made me septic’ to get the surgery to save my life.”
According to Rolling Stone, Broesder’s severe blood loss during her miscarriage caused erratic blood pressure and a stress response that led her to be diagnosed with a heart condition she said could lead to a heart attack if she gets too excited or upset. “I have to deal with these side effects for the rest of my life because of abortion laws,” Broesder said in her video.
Broesder’s experience is a clear illustration of what Vice President Kamala Harris was talking about when she responded to former president Donald Trump’s bizarre claim during the debate that “every legal scholar” wanted Roe v. Wade overturned. “Pregnant women who want to carry a pregnancy to term, suffering from a miscarriage, being denied care in an emergency room because the health care providers are afraid they might go to jail, and she is bleeding out in a car in the parking lot—she didn’t want that,” Harris said. “Her husband didn’t want that.”
McEntee, the founder of a conservative-only dating app, has a large following on TikTok, where he posts snarky and often offensive quips about race and gender designed to tickle his MAGA audience. But his video garnered thousands of first-person responses, many telling stories about severe medical complications after pregnant people were denied care.
“I was told when I had a possible ectopic pregnancy that I would have to ‘wait until it made me septic’ to get the surgery to save my life,” one commenter said.
“My daughter. Nearly lost her life after she miscarried triplets that didn’t expel her body & 3 hospitals wouldn’t remove them,” another replied.
“I’ve been anemic on and off since my weeks-long miscarriage,” wrote yet another commenter. “Three hospitals refused to give me a DNC or pill protocol. Unimaginable pain and distress.”
And so it goes, on and on, for more than 19,000 comments as of Saturday.
“Today is a triumph for freedom as huge as any victory that has ever been won on any battlefield,” President Lyndon Johnson declared 59 years ago today, as he signed the Voting Rights Act into law at the US Capitol.
The landmark civil rights law transformed American politics, enfranchising millions of voters of color, but as it nears 60-years-old, the Voting Rights Act is under attack from every angle by a conservative-dominated judiciary.
The most serious blow came from the Supreme Court in the 2013 decision Shelby County v. Holder, which ruled that states with a long history of voting discrimination no longer needed to approve their election changes with the federal government. Chief Justice John Roberts wrote in his majority opinion that “things have changed dramatically” in the South, but since the ruling nearly 100 restrictive voting laws have been passed in at least 29 states, according to the Brennan Center for Justice. As a result of the Shelby decision and a slew of new anti-voting measures passed by Republicans in the wake of Donald Trump’s attempt to overturn the 2020 election, voters in almost half the country will face new voting restrictions at the polls in 2024.
In the decade since Shelby, Trump appointees on the nation’s lower courts have taken a wrecking ball to what remains of the VRA.
On Thursday, the ultra-conservative 5th Circuit Court of Appeals overruled two previous court decisions and reinstated a county commissioners’ map in Galveston, Texas, that eliminated the only majority-minority district, ousting the lone Black and minority commissioner. In a 12-6 decision, with all of the Republican-appointed judges in the majority, the appeals court overturned its own precedent dating back to 1988, ruling that minority groups who form a combined majority, such as Black and Hispanic voters in the Galveston area, are not protected under the VRA. That will make it much tougher to secure representation for communities of color, since different minority groups often combine to form a majority in an increasingly diversifying country. “Today, the majority finally dismantled the effectiveness of the Voting Rights Act in this circuit,” Judge Dana Douglas wrote in a dissent.
That’s just one example of how Republican-appointees to the federal judiciary, emboldened by Supreme Court rulings curbing voting rights, are going after the VRA.
In November 2023,a three-judge panel on the 8th Circuit Court of Appeals, which covers seven states in the Midwest and Great Plains, ruled that private plaintiffs could not bring lawsuits to enforce Section 2 of the VRA, the key remaining provision of the law, which prohibits voting practices and procedures that discriminate against voters of color. As I reported for Mother Jones, that ruling, if adopted nationwide, would amount to a near-fatal strike against the VRA:
The opinion said that only the US Attorney General could bring lawsuits to enforce Section 2, but the vast majority of such cases are brought by private plaintiffs, typically individual voters represented by voting rights groups. As Judge Lavenski Smith, an appointee of George W. Bush who is the only Black judge on the 8th Circuit, noted in his dissent, of the 182 successful Section 2 cases over the past 40 years, only 15 were brought solely by the attorney general. If voting rights litigation were dependent on the Justice Department, it would slow to a trickle—or, under a hostile administration, to a halt.
Just days after the 8th Circuit opinion, another conservative appellate court further weakened the power of the VRA. Judge Lisa Branch of the 11th Circuit, a Trump appointee, overruled a lower court opinion invalidating the structure of Georgia’s Public Service Commission, which regulates public utilities and has had only two Black members in over 100 years, because it violated “general principles of federalism.” The decision could allow Georgia and other Southern states to use voting systems that have repeatedly been found to dilute the power of communities of color.
Against the backdrop of these escalating attacks on voting rights, Democrats narrowly failed to pass legislation restoring the power of the VRA and protecting the right to vote nationwide during Biden’s presidency. But they’ve committed to resurrecting the bills should they win control of Congress and the presidency in November.
“We who believe in the sacred freedom to vote, will finally pass the Freedom to Vote Act and the John Lewis Voting Rights Advancement Act,” Democratic nominee Kamala Harris said while campaigning in Georgia last week.
When he signed the VRA, Lyndon Johnson called the right to vote “the most powerful instrument ever devised by man for breaking down injustice.” The very success of the law has convinced its opponents of the urgent need to do away with it, once and for all.
This story was published in partnership with The Trace, a nonprofit newsroom covering gun violence in America.
For decades, McLean Bible Church has served as the place of worship for many of DC’s Republican elite. The sprawling evangelical megachurch in Vienna, Virginia, boasts a roster of former parishioners that includes everyone from Ken Starr to Mike Pence. It’s where Donald Trump once dropped in for a brief prayer after a round of golf.
McLean Bible is also where, in November 2017, a senior pastor named Dale Sutherland formed a nonprofit called Act2Impact. In those days, the organization was described in state records as an “auxiliary” of the church, with a mission to “preach the gospel” and “conduct evangelistic and humanitarian outreach.”
But that mission was short-lived.
Two years later, Sutherland—who had once been an undercover narcotics officer in DC—left McLean Bible and filed papers to rename Act2Impact. It became the Constitutional Defense Fund (CDF), which would “promote and secure” constitutional rights. “We aim to defend and strengthen those rights through methods that will include litigation and other means,” the filing stated. New directors joined, replacing church elders. One was Joseph Abdalla, a former cop who’d been Sutherland’s partner.
Around this time, Sutherland also leaned into a new persona, adopting theUndercover Pastor as his brand and moniker. “Buying cocaine and preaching Jesus. A weird combo,” notes his website, which touted a newsletter—“get biblical wisdom delivered to your inbox”—and YouTube channel. “I used to lock people up,” he likes to say, “now I’m trying to set people free.”
Sutherland is much less public about the CDF, which in the half-decade since its rechristening has evolved from spreading the good news to facilitating a far-reaching, multimillion-dollar legal campaign to dismantle America’s gun laws. From 2020 to 2022, the CDF collected $12 million in cash and funneled nearly $10 million to two connected gun rights groups and a DC law firm, Cooper & Kirk, which together have filed at least 21 lawsuits since 2020 that challenged gun restrictions. These lawsuits, aimed at getting an eventual Supreme Court hearing, concern bans on AR-15-style rifles and high-capacity magazines, as well as restrictions on young adults buying and carrying handguns. During its next term, which begins in October, the court will hear one of the suits, a challenge to the government’s ability to check the spread of home-produced, unserialized “ghost guns.”
The CDF paid Cooper & Kirk more than $8 million between 2020 and 2022. The fund also made payments to the Second Amendment Foundation and the Firearms Policy Foundation (an offshoot of the Firearms Policy Coalition), which are the plaintiffs, individually or together, in every one of the 21 lawsuits the operation is behind.
The CDF’s money came via Donors Trust, a pass-through fund founded in 1999 with the aim of “safeguarding the intent of libertarian and conservative” philanthropists who seek to channel their wealth into right-wing causes. The trust has more than $1 billion in assets and is not legally required to identify its donors.
In short: An anonymous funder or funders is bankrolling a legal attack aimed at providing the conservative majority on the Supreme Court an opportunity to wipe out America’s firearms laws. It’s akin to the Christian right’s abortion playbook but for guns.
It’s akin to the Christian right’s abortion playbook but for guns.
“It’s about as far from a bottom-up, grassroots operation as possible,” said Adam Skaggs, chief counsel and vice president of Giffords Law Center, who has spent a decade tangling in court with gun rights interests. Skaggs said that in terms of its ambition and scale, the dark money operation is unlike any litigation funding arrangement he’s seen.
The motives of many of the players in this drama—gun rights advocates and the conservative lawyers who work for them—are obvious. But Sutherland is more of a mystery. People who have known him for years say they’ve never heard him talk about the Second Amendment or state a position on the gun debate.
Over the past two years, I have tried to piece together this network and chart its workings. It’s an effort that has involved reading many thousands of pages of financial filings, depositions, and court records. I’ve done dozens of interviews and knocked on the same doors again and again, trying to figure out how an undercover pastor became the unlikely middleman for a covertly funded operation to abolish gun laws. Here’s what I’ve learned.
The Firm
In August 2019, before he stepped on a podium in Colonial Williamsburg, Charles Cooper was introduced as a “legend” of the conservative legal world. He began by warming up the crowd at the Convention of States Project leadership summit, which brings together people who want to amend the Constitution to eliminate what they consider ambiguous language that has enabled liberal advances. “Are there any freedom-loving, anti-communist patriots in this room?” The audience clapped and cheered. “Do any of you cling to your Bibles and your guns?”
“Are there any freedom-loving, anti-communist patriots in this room? Do any of you cling to your Bibles and your guns?”
The day before, Cooper had lost his decades-long gig as the National Rifle Association’s outside counsel. As details of financial abuses became public many had rallied around then-CEO Wayne LaPierre. Cooper did not and was purged.
Before representing the NRA, Cooper led the Department of Justice’s Office of Legal Counsel, which advises the president and executive agencies. Cooper’s Reagan-era DOJ opinions—for instance, one finding that employers could refuse to hire those with AIDS—burnished his reputation as a polished champion of a strident conservatism. Cooper tapped Samuel Alito to be his deputy and, two decades later, would guide him through the Supreme Court confirmation process. By then, Cooper had founded Cooper & Kirk, which became known as the conservative movement’s prestige advocate. It hired hard-right zealots from elite law schools, including Ted Cruz, Tom Cotton, and Noel Francisco, who would become Trump’s solicitor general. Cooper defended Proposition 8, California’s ban on gay marriage, and represented fellow Alabaman Jeff Sessions when the then-attorney general was under scrutiny for his contacts with Russian officials in 2016.
Cooper’s Williamsburg speech was titled, “The Real Threat to the Second Amendment.” He described how his work had contributed to split circuit court rulings on whether people have a right to carry guns outside the home for self-defense. A case that would resolve that question, he noted, was before the Supreme Court.
Cooper was referring toNew York State Rifle & Pistol Association v. Bruen, which challenged a New York law that required applicants for concealed carry permits to demonstrate a heightened need for protection. At the time, Cooper & Kirk was representing the Bruen plaintiffs. Although the firm did not argue the case before the Supreme Court—that was handed off to star SCOTUS advocate Paul Clement—invoices show that in April 2021, the month the justices agreed to hear Bruen, Cooper & Kirk managing partner David H. Thompson conferred with lead attorneys on the case about an “amicus panel,” a body of subject experts that advises on litigation strategy.
CDF money went to attorneys and advocacy groups that filed friend of the court briefs backing the plaintiffs. Such filings, known as amicus briefs, are integral to legal strategy in appellate litigation and are often cited by higher courts in decisions. Thompson filed an amicus brief in Bruen on behalf of the Second Amendment Foundation. And another partner at the firm, John D. Ohlendorf, did so on behalf of J. Joel Alicea, himself a Cooper & Kirk attorney identified in the brief only as a professor at Catholic University. The CDF-funded Firearms Policy Foundation filed an amicus brief as well. So did the archconservative Claremont Institute, which got a $105,000 CDF grant in 2021 to support gun rights. John C. Eastman—the lawyer who helped rally Trump’s faithful before they stormed the US Capitol on January 6, 2021, and is now under indictment in Georgia and Arizona for attempting to subvert the 2020 election—wrote the Claremont brief. (Eastman’s law license has been temporarily suspended in California and DC.)
Protesters hold signs honoring victims of gun violence in front of the Supreme Court ahead of oral arguments in New York State Rifle & Pistol Association v. Bruen on November 3, 2021, in Washington. Leigh Vogel/Getty/Giffords Law Center
The Supreme Court’s 6-3 decision in Bruen was momentous. Conservative justices not only struck down New York’s law, but also established a new test for the constitutionality of all gun restrictions. No longer should courts weigh the government’s interest in reducing violence or promoting public safety against the right to bear arms, the majority said. Rather, the constitutionality of gun laws should depend on whether they’re similar enough to restrictions in place when the Second Amendment was adopted in 1791, or when the 14th Amendment was ratified in 1868, points at which the original meaning and public understanding of the Second Amendment are best discerned.
Lower courts have since seen a surge in challenges to firearms restrictions, ruling on an average of one a day in the year after the decision, according to an analysis by Jacob D. Charles, a scholar at Pepperdine Caruso School of Law. Although courts have diverged when applying the standard, thanks to Bruen, gun laws are being struck down at an unprecedented clip. “We are more excited than ever about the future,” Brandon Combs, director of the Firearms Policy Foundation and the Firearms Policy Coalition, declared after the Bruen ruling. “Indeed, FPC is already working with the exceptional litigators at Cooper & Kirk—truly the best in the space—on the largest Second Amendment litigation program in the country.”
The Plaintiff
Of course, before Cooper & Kirk can get involved, a plaintiff is needed. That’s where the Second Amendment Foundation and the Firearms Policy Coalition come in. They not only act as plaintiffs, but they also recruit individual plaintiffs, someone who can claim standing—a direct injury from the law that’s being challenged.
The Second Amendment Foundation has always been involved in litigation, and in 2013, it helped create the Firearms Policy Coalition, which is similarly focused on challenging gun laws in court. Since Trump appointees have made the composition of the Supreme Court so favorable and the foundation began to receive CDF funds in 2020, the groups have become juggernauts. In the three years prior to 2020, a public database of federal lawsuits identifies them, alone or together, as plaintiffs in 28 actions; in the three subsequent years, that number jumps to 89. “We want to get a case before the Supreme Court,” Second Amendment Foundation founder Alan Gottlieb told journalist Stephen Gutowski last year. “And the quicker these cases move, the better for gun ownership and for gun rights.”
“We want to get a case before the Supreme Court. And the quicker these cases move, the better for gun ownership and for gun rights.”
Gottlieb created the Second Amendment Foundation and another group at the vanguard of conservative crusades, the Center for the Defense of Free Enterprise, back in the early 1970s. He is known for direct-mail and marketing savvy, and for cashing in on right-wing causes through private companies that have business arrangements with his advocacy groups. In 1984, he pleaded guilty to felony tax fraud and was sentenced to a year in prison, which he served largely on work release. (More recently, the attorney general of Washington state investigated Gottlieb, who filed a lawsuit against the office alleging the inquiry into his activities was politically motivated.)
Gottlieb first gained public notice in the late 1980s as an architect of the Wise Use movement, which championed the exploitation of natural resources and an end to environmentalism. Backlash to federal control of land in Western states and encroachment of environmental regulation fueled a groundswell. “I’ve never seen anything pay out as quickly as this whole Wise Use thing has done,” Gottlieb said back then. “It touches the same kind of anger as the gun stuff, and not only generates a higher rate of return, but also a higher average dollar donation. My gun stuff runs about $18. The Wise Use stuff breaks $40.” When news stories linked Wise Use to the Rev. Sun Myung Moon’s Unification Church, Gottlieb described them as “overplayed.” In 2023, he headlined the Rod of Iron Freedom Festival, an event hosted by the Rod of Iron Ministries, which is led by a son of Moon. The MAGA-allied church glorifies AR-15-style rifles—the type of gun used in the recent attempt to assassinate Trump—seeing in them the biblical “rod of iron,” Christ’s prophesied instrument of dominion at Armageddon.
In November 2022, two years after the CDF operation began, Gottlieb gave a deposition as part of a challenge to an Illinois law that prohibits young adults from carrying a gun in public. When I first read the deposition in early 2023, many questions I’d had were answered. In it, Gottlieb testified that an anonymous funder was supporting the case by paying his counsel, Cooper & Kirk. He said the firm had given him a statement outlining how much money the person had spent on what he estimated to be a dozen foundation lawsuits underway in 2021. (Court records confirm his assessment.)
When asked whether he knew who was paying Cooper & Kirk, Gottlieb testified, “I wish I did.”
That remark alarms some legal ethicists, who argue that rules of professional responsibility should be interpreted as requiring that a client know who is paying their counsel before consenting to representation. “He’s either just lying or the firm is delinquent in getting informed consent,” said Dru Stevenson, a professor at South Texas College of Law Houston who specializes in legal ethics and firearms regulation.
In response to written questions, Gottlieb said that his answers in the deposition were “accurate” and that “our attorneys did not fail to get our informed consent, it was given.” Outside funding arrangements can raise questions about whether the financial backer or plaintiff is really in charge, but Gottlieb said, “merely because a third-party may have paid for some services rendered, SAF retains control over all legal direction, strategy, and settlement authority, which is wholly ethical.”
Gottlieb is not the operation’s only beneficiary who seems to be unaware of the source of the largesse. In 2021, the CDF paid Gary Kleck, a professor emeritus of criminology at Florida State University whose work has been touted by gun interests for decades, $6,900, according to an IRS filing. When I emailed him, Kleck said the money was a consulting fee from Cooper & Kirk for work he’d done on Bruen. “I have no idea what the Constitutional Defense Fund is,” he said, “and had never heard of it before you contacted me.”
The Professor
Even when they go before a court inclined to overturn gun laws, the lawyers and plaintiffs need research to bolster their case. Enter Georgetown assistant professor William English, who in 2021 received a $58,750 CDF grant and the same year filed a key brief supporting the Bruen plaintiffs.
Before arriving at Georgetown in 2016, English, a political economist, was research director at Harvard University’s Edward J. Safra Center for Ethics. (While at Harvard, he also founded the Abigail Adams Institute, whose mission is “reviving traditional humanities education”—i.e., the Western canon. In 2022, the CDF gave the institute a $23,000 grant for “constitutional research.”)
In June, the New York Times ran a profile of English in which the existence of a dark money drive to strike down gun laws being run through the CDF was first revealed. The Times detailed how English’s Bruen brief was filed jointly with the Center for Human Liberty—another part of Gottlieb’s operation that was incorporated in Nevada two months before English filed his brief. In it, English argued that, based on his own research that had not been peer-reviewed, there was no connection between right-to-carry laws, increased numbers of gun carry permits, and violent crime. The brief was prepared by a Manhattan attorney, Edward Paltzik, whose firm received $80,000 from the CDF in 2021.
English’s work suited the needs of the Bruen plaintiffs perfectly. Their counsel cited it during oral arguments, and Charles Cooper’s pal, Alito, did so in a concurring opinion. An update English later published concluded that AR-15-style rifles are in “common use,” a finding central to the gun movement’s legal advocacy post-Bruen. Since the ruling, gun interests have cited English’s work in dozens of motions and pleadings in cases nationwide.
Academics on both sides of the gun debate have found defects in English’s work. In a January 2023 deposition in an Oregon case, Kleck, the Florida State professor, said English’s survey can’t be relied on. “He’s vague about exactly how he developed his sample,” Kleck said. “And there is nothing in his report to contradict the assumption that what he had was a self-selected sample.”
I’d been trying to get English and Georgetown to respond to questions about his research since the Bruen ruling came down. In December 2022, I paid a visit to the gated community where Georgetown President John DeGioia lived. After that, the university’s communications office finally responded by email, stating: “Georgetown respects and supports academic freedom, including the right of its faculty members to conduct independent research. The University’s Institutional Review Board reviewed this study before the survey began, and the survey costs were supported by an external grant that did not flow through the University.”
The tax ID number that the CDF reported to the IRS in conjunction with English’s grant is Georgetown’s. Asked recently to clarify the meaning of “did not flow through the university” and whether it had a position on English’s failure to divulge who funded his work, a Georgetown spokesperson said in an emailed statement that the university is “unable to identify any record of Constitutional Defense Fund funds flowing through Georgetown and is uncertain why the University’s tax identification number appears in CDF’s records. Georgetown faculty members have academic freedom to conduct independent research projects. The views of faculty members are their own and do not necessarily reflect those of Georgetown University.”
On June 26, English published an op-ed in the Wall Street Journal in which he defended his work, bashed the New York Times, and characterized attempts by me and other reporters to get answers from him as “harassment.” English wrote that the Times “and other outlets are signaling that they will cancel academics who state inconvenient facts…Those of us who want to foster an evidence-based public-policy discourse should reject these tactics, and courts should take note of them.”
The Middleman
Lawyers and academics all need to be paid, which brings us back to the Undercover Pastor.
Sutherland likes to tout his time with the DC police, but not all of his undercover work ended smoothly. In one early 1990s case, Sutherland and Abdalla—now on the board of the CDF—handled an informant named Arvell “Pork Chop” Williams, who was shot 16 times and killed. When federal prosecutors tried members of the drug crew suspected in the killing, it emerged that Williams had been allowed to continue making street buys for Sutherland, who was posing as a Georgetown University construction worker seeking crack, despite the presence of the “white guy” causing dealers unease, according to court transcripts. At trial, evidence went missing, including a pager in Sutherland’s possession that defense attorneys argued could shed light on the killing and related crimes. “I am going to get the chief of police and the United States attorney in here and read them the riot act,” the judge said at one point. “To lose evidence of various kinds day after day is just not satisfactory.” Prosecutors dropped the murder charge but obtained drug conspiracy convictions against the defendants.
After Sutherland left the DC police force in 2013, his role at McLean Bible, where he’d long held staff positions, grew. In 2016, he began talks with the Southern Baptist Convention on a partnership to “plant” churches in the DC region. Sutherland founded an entity called New City Network, an arm of McLean Bible, to carry out the work. Concerned that the partnership violated McLean’s constitution, which requires the church to remain unaffiliated with denominations, a group of members filed suit against McLean in 2022.
Dale Sutherland Joel Saget/AFP/Getty
The legal battle revealed a complex series of money transfers totaling more than $7 million between McLean, the convention, and New City Network. The plaintiffs felt that records and testimony produced in their suit demonstrated that the partnership had indeed violated McLean’s constitution and dropped their case last year. In a letter summarizing the litigation, however, their attorney made clear that questions remain: “Current and former church leaders deposed could not explain the reasons for this unorthodox payment structure, or state with confidence where the money went specifically.” A church webpage allows that “financial transactions for the church planting were sometimes confusing,” but says an independent audit accounted for the money spent.
“Current and former church leaders deposed could not explain the reasons for this unorthodox payment structure, or state with confidence where the money went specifically.”
Sutherland was among those deposed. He said that he’d left McLean Bible and his role leading New City Network in May 2019. He was unable to name any churches the network had started, save for one in Falls Church, Virginia, where he and his son-in-law now preach. “For Heaven’s sake,” Sutherland said. “I can picture all the pastors in my head. I just can’t think of the names they gave their churches. Boy oh boy.”
One of the plaintiffs in that suit, Jeremiah Burke, said Sutherland’s limited recall was an act. “He repeatedly recounts, in his podcast and on his Instagram page, in vivid detail, events from 20 and 30 years ago with absolute precision, events in which he is the hero,” Burke said. “However, in his deposition, having sworn under oath to tell the truth, Dale somehow couldn’t call to mind details of significant events from the recent past.”
One name that Sutherland could not recall in his September 2023 deposition was Veritas Church in DC’s Georgetown neighborhood, which had gotten New City funds. Sutherland became interim pastor of Veritas in 2020 and renamed the church City Light, the same name used by the church in Virginia that he and his son-in-law lead. In 2020 and 2021, IRS disclosures for the CDF listed City Light’s Georgetown location as the CDF address. When I visited last year, I found a largely vacant office building, save for one floor occupied by the Embassy of the Republic of South Sudan, and no sign of a church or the CDF.
A former McLean Bible elder, who spoke on condition of anonymity to discuss internal church matters, described Sutherland as “kind-hearted” and a “warrior for the Lord,” but also “deceptive.” During the church planting drive, he said, Sutherland “did things the way he wanted to, he just kind of ran rogue.” The elder said Sutherland “is a pretty good talker, he can sell pretty well,” and would “cuddle up next to” the congregation’s big donors.
As Sutherland left McLean Bible and established the CDF, he began to collect more money from his array of nonprofits, including Code 3 Association, whose stated goal is better relations between police and the public. (Abdalla is a director there, too.) In 2020, these nonprofits—the CDF, Code 3, and Boost Others, Inc.—paid Sutherland and his private company, Code 3 Consulting, more than $200,000. Over the next two years, Sutherland collected more than $700,000 from his nonprofits. He also began flipping DC properties, which he sometimes bought from the estates of the recently deceased or those in bankruptcy. From 2020 through early 2023, records show, he bought at least a dozen properties valued at $7 million and sold them for more than $11 million.
In short, Sutherland has been awash in cash since he filed paperwork to create the CDF. In one sense, he’s an odd middleman. People who know him can’t recall Sutherland expressing support for scuttling gun laws. “I never heard him talk about the Second Amendment or gun rights,” said the former McLean elder. “I never did, nope, and I was with him a lot.”
“I never heard him talk about the Second Amendment or gun rights. I never did, nope, and I was with him a lot.”
But there are connections that lead back to McLean Bible. In a 2023 interview, Thompson, the Cooper & Kirk managing partner who has overseen much of the firm’s Second Amendment work, praised the church that was his spiritual home for two decades. “I grew up Episcopalian,” said Thompson, who did not respond to written questions for this story, “and about 20 years ago, I became a born-again Christian and went to McLean Bible Church.”
Twice in the last year, I knocked on the door of Sutherland’s home. I got no response and left a business card. Attempts to reach him by phone failed. Then, in mid-June, he answered. I asked him to explain how he’d come to be running money through the CDF to Cooper & Kirk. “Sir, I am in the car with my grandson,” Sutherland said, “and I am not talking.”
The Dark Money
In July 2016, a young man in Washington state, angry and jealous after a break-up, bought an AR-15-style rifle and a 30-round magazine. A week later, he bought another 30-round magazine, then shot and killed three people, including his ex-girlfriend, at a house party. He later blamed his actions in part on easy access to guns. The killings prompted the state legislature to enact a ban on high-capacity magazines and AR-15-style rifles. The Second Amendment Foundation and the Firearms Policy Coalition, as co-plaintiffs, filed suits in 2022 and 2023 to strike down the bans. Cooper & Kirk is their counsel in the case targeting the magazine capacity ban. English’s survey findings were cited by the plaintiffs in both cases. (As the Times reported, however, the plaintiffs subsequently agreed not to rely on English’s work “in any respect” after the state sought to subpoena information from English in the AR-15 case regarding the development of his survey.) Both cases are pending in federal district court in Washington state.
Autumn Snider’s son, 19-year-old Jake Long, was the first to be shot and killed at the party. Snider said those with the means to fund litigation meant to impact public policy should be free to do so—as long as they do so openly. “You have the obligation to reveal who you are and should have the confidence to provide transparency to the public,” Snider said. “If you can’t be forthcoming with who you are, that is a red flag.”
Defenders of using dark money to support litigation liken the practice to anonymous political speech, which enjoys First Amendment protection. But such arguments have limits, said Adam Winkler, a constitutional law professor at UCLA School of Law who has written a book on the gun debate. “First Amendment rights are mitigated by the need to ensure the integrity of the judicial system,” Winkler said. “We generally don’t allow parties in a case to be anonymous.”
Anonymous funding arrangements, which are not uncommon in the realm of impact litigation, effectively allow an “end run” around judicial ethics safeguards. “How do you know whether there is any impropriety, any influence peddling?” Winkler said. “It’s fundamentally problematic.”
Seth Endo, an associate professor at Seattle University School of Law, said the debate over disclosing the identity of anonymous funders involves fundamental questions about the role of courts. If courts are neutral arbiters of the rights and responsibilities of disputing parties, as many who work in them like to contend, then it’s easy to argue that disclosure is irrelevant. However, if courts are not detached umpires but are themselves political agents that drive social change, then the public has a strong interest in knowing who’s enabling litigation, Endo said.
Given Cooper & Kirk’s ties to deep-pocketed conservatives who specialize in waging ideological battles through courts, there are any number of suspects who may be routing millions of dollars through Donors Trust to Sutherland’s CDF—and on to the advocacy groups and their lawyers.
Donors Trust is a pass-through that effectively conceals the identities of individuals and advocacy groups backing right-wing causes. (On the political left, organizations like the Tides Foundation do the same.) Those who give to Donors Trust can say how they’d like their money to be spent, but they don’t have the final word. In exchange for giving up that control, they get up-front tax benefits. Prominent funders and architects of the modern conservative movement, including the Kochs, the Bradley Foundation, and hedge fund tycoon Robert Mercer, have all moved money through Donors Trust.
In 2013 and 2014, Mercer’s foundation gave a total of $800,000 to Gottlieb’s Center for the Defense of Free Enterprise, which was at its zenith when Gottlieb was pushing his Wise Use agenda. Mercer is a gun lover and Trump devotee. From 2020 to 2022, Mercer’s foundation gave more than $56 million to Donors Trust. Mercer’s daughter Rebekah, who has spearheaded her family’s philanthropic and political efforts, did not respond to emailed questions.
By the end of 2022, the last year for which IRS filings are public, Sutherland’s fund had $1.6 million on hand. The pastor has recently formed other nonprofits with similar names, including an outfit called the Constitutional Freedom Fund, incorporated in Virginia in 2022, and the Foundation for Constitutional Freedom, established in Utah in December 2023. Details on their activities have yet to be disclosed.
Recently, a French film director named David André unveiled a documentary series on Sutherland called Dale L’Infiltré, or Dale Undercover. A blurb on a promotional video reads, “Dale Sutherland, a young pastor-police officer, will become a master in the art of infiltration, filming criminals without their knowledge and using fictitious identities: Italian mafia boss, pimp, drug trafficker, rap producer.” Sutherland also recently started a new podcast: Cops, Criminals, and Christ.
In the fall, Cooper & Kirk is slated to represent the Firearms Policy Coalition, which is joined by the Second Amendment Foundation before the Supreme Court in the ghost gun case. Given the court’s current political lean, the gun rights advocates might well prevail. Other cases, which could result in AR-15-style rifle and high-capacity magazine bans being ruled unconstitutional, are wending their way through lower courts, though the funding source for this entire dark money operation remains shrouded from the public.
Update, July 30: This story has been updated to further detail Alan Gottlieb’s involvement with the criminal justice system.
President Joe Biden called for a series of major reforms to the Supreme Court on Monday that would counteract the unchecked power of its conservative supermajority. In an op-ed in the Washington Post, which was followed by a speech at the Lyndon B. Johnson Presidential Library that afternoon, Biden proposed an 18-year term limit for Supreme Court justices and a binding code of ethics, along with a constitutional amendment that would reverse the Supreme Court’s July 1 decision giving presidents “absolute immunity” from criminal prosecution for official acts in office.
“What is happening now is not normal, and it undermines the public’s confidence in the court’s decisions, including those impacting personal freedoms,” Biden wrote in the Post. “That’s why—in the face of increasing threats to America’s democratic institutions—I am calling for three bold reforms to restore trust and accountability to the court and our democracy.”
Under Biden’s plan, a president would appoint a Supreme Court justice every two years to an 18-year term, which would make it more difficult for one party or president to gain overwhelming control of the court, as is the case now. “The United States is the only major constitutional democracy that gives lifetime seats to its high court,” Biden wrote. He would also require justices “to disclose gifts, refrain from public political activity, and recuse themselves from cases in which they or their spouses have financial or other conflicts of interest.” Finally, the “No One Is Above the Law Amendment” proposed by the president “would make clear that there is no immunity for crimes a former president committed while in office.”
Vice President Kamala Harris, the presumptive Democratic nominee for president, said she supported these reforms. “There is a clear crisis of confidence facing the Supreme Court as its fairness has been called into question after numerous ethics scandals and decision after decision overturning long-standing precedent,” she said in a statement.
Pro-democracy groups praised Biden’s proposals—and said they were long overdue. “The White House’s endorsement is a crucial first step toward holding this MAGA Court in check and restoring Americans’ trust in the judiciary,” said a statement from a coalition of national advocacy groups that included Indivisible, MoveOn, and People for the American Way. Sarah Lipton-Lubet, president of Take Back the Court Action Fund, called the announcement “a massive sea change in the fight for court reform.”
As I’ve extensively reported for Mother Jones and in my new book Minority Rule, the Supreme Court’s conservative supermajority has been a key driver of the democratic crisis facing the country.
Five of six conservative justices on the Supreme Court were appointed by Republican presidents who initially lost the popular vote and were confirmed by senators elected by a minority of Americans. That conservative supermajority, in turn, has made the country less democratic in several shocking ways.
They have gutted the 1965Voting Rights Act, upheld extreme partisan and racial gerrymandering, and flooded the political system with dark money. They have issued radical, precedent-shattering decisions that were directly at odds with public opinion on issues like abortion and guns. They have green-lit former presidentDonald Trump’s authoritarianism, insulating him from facing any legal challenge before the election—or possibly ever—for inciting the insurrection.
And the justices themselves have often acted like they too are above the law; Justices Clarence Thomas and Samuel Alito have accepted gifts and trips from top GOP donorswho have spent millions to reshape the judiciary in a more conservative direction. Meanwhile, they have also refusedto recuse themselves from major cases involving January 6 even though both their wives publiclysupported the “Stop the Steal” movement. Ginni Thomas sent nearly 30 texts to White House Chief of Staff Mark Meadows urging him to overturn the 2020 election.
For all these reasons, advocates of Supreme Court reform have been urging Biden to embrace their cause for years. But he resisted calls to change the composition of the court while running for president in 2020. He then appointed a commission of scholars to study the issue after he was elected but did not act on the 294-page report they submitted in December 2021. He only made the issue a major priority now, during the final months of his administration.
His current proposals are likely too little, too late. Republicans in Congress will block any measures reforming the current court, and Biden’s constitutional amendment faces even steeper odds, requiring the support of two-thirds of Congress and three-quarters of states. No major Constitutional amendments have been adopted in the past fifty years.
Nonetheless, Biden’s call for Supreme Court reform could energize Democrats to go to the polls in November, much like Senate Majority Leader Mitch McConnell’s decision to block President Barack Obama from filling Antonin Scalia’s vacancy motivated Republicans to vote for Trump in 2016. It could also lay the groundwork for Vice President Harris to make Supreme Court reform a major legislative priority if she’s elected with a Democratic majority in Congress.
As Biden said at the LBJ Library Monday afternoon, “the court’s being used to weaponize an extreme and unchecked agenda.”
President Joe Biden called for a series of major reforms to the Supreme Court on Monday that would counteract the unchecked power of its conservative supermajority. In an op-ed in the Washington Post, which was followed by a speech at the Lyndon B. Johnson Presidential Library that afternoon, Biden proposed an 18-year term limit for Supreme Court justices and a binding code of ethics, along with a constitutional amendment that would reverse the Supreme Court’s July 1 decision giving presidents “absolute immunity” from criminal prosecution for official acts in office.
“What is happening now is not normal, and it undermines the public’s confidence in the court’s decisions, including those impacting personal freedoms,” Biden wrote in the Post. “That’s why—in the face of increasing threats to America’s democratic institutions—I am calling for three bold reforms to restore trust and accountability to the court and our democracy.”
Under Biden’s plan, a president would appoint a Supreme Court justice every two years to an 18-year term, which would make it more difficult for one party or president to gain overwhelming control of the court, as is the case now. “The United States is the only major constitutional democracy that gives lifetime seats to its high court,” Biden wrote. He would also require justices “to disclose gifts, refrain from public political activity, and recuse themselves from cases in which they or their spouses have financial or other conflicts of interest.” Finally, the “No One Is Above the Law Amendment” proposed by the president “would make clear that there is no immunity for crimes a former president committed while in office.”
Vice President Kamala Harris, the presumptive Democratic nominee for president, said she supported these reforms. “There is a clear crisis of confidence facing the Supreme Court as its fairness has been called into question after numerous ethics scandals and decision after decision overturning long-standing precedent,” she said in a statement.
Pro-democracy groups praised Biden’s proposals—and said they were long overdue. “The White House’s endorsement is a crucial first step toward holding this MAGA Court in check and restoring Americans’ trust in the judiciary,” said a statement from a coalition of national advocacy groups that included Indivisible, MoveOn, and People for the American Way. Sarah Lipton-Lubet, president of Take Back the Court Action Fund, called the announcement “a massive sea change in the fight for court reform.”
As I’ve extensively reported for Mother Jones and in my new book Minority Rule, the Supreme Court’s conservative supermajority has been a key driver of the democratic crisis facing the country.
Five of six conservative justices on the Supreme Court were appointed by Republican presidents who initially lost the popular vote and were confirmed by senators elected by a minority of Americans. That conservative supermajority, in turn, has made the country less democratic in several shocking ways.
They have gutted the 1965Voting Rights Act, upheld extreme partisan and racial gerrymandering, and flooded the political system with dark money. They have issued radical, precedent-shattering decisions that were directly at odds with public opinion on issues like abortion and guns. They have green-lit former presidentDonald Trump’s authoritarianism, insulating him from facing any legal challenge before the election—or possibly ever—for inciting the insurrection.
And the justices themselves have often acted like they too are above the law; Justices Clarence Thomas and Samuel Alito have accepted gifts and trips from top GOP donorswho have spent millions to reshape the judiciary in a more conservative direction. Meanwhile, they have also refusedto recuse themselves from major cases involving January 6 even though both their wives publiclysupported the “Stop the Steal” movement. Ginni Thomas sent nearly 30 texts to White House Chief of Staff Mark Meadows urging him to overturn the 2020 election.
For all these reasons, advocates of Supreme Court reform have been urging Biden to embrace their cause for years. But he resisted calls to change the composition of the court while running for president in 2020. He then appointed a commission of scholars to study the issue after he was elected but did not act on the 294-page report they submitted in December 2021. He only made the issue a major priority now, during the final months of his administration.
His current proposals are likely too little, too late. Republicans in Congress will block any measures reforming the current court, and Biden’s constitutional amendment faces even steeper odds, requiring the support of two-thirds of Congress and three-quarters of states. No major Constitutional amendments have been adopted in the past fifty years.
Nonetheless, Biden’s call for Supreme Court reform could energize Democrats to go to the polls in November, much like Senate Majority Leader Mitch McConnell’s decision to block President Barack Obama from filling Antonin Scalia’s vacancy motivated Republicans to vote for Trump in 2016. It could also lay the groundwork for Vice President Harris to make Supreme Court reform a major legislative priority if she’s elected with a Democratic majority in Congress.
As Biden said at the LBJ Library Monday afternoon, “the court’s being used to weaponize an extreme and unchecked agenda.”
Even before the Supreme Court ruled late last month in Loper Bright Enterprises v. Raimondo, a lawsuit over a herring fishing regulation, Meredith Moore knew the case was never really about fish. Moore, the director of the fish conservation program at the nonprofit environmental group Ocean Conservancy, instead saw the case as a “Trojan horse” that would weaken public agencies’ regulatory power across the board and unleash a wave of lawsuits aimed at unraveling environmental protections. “This is an opportunity for a free-for-all,” she says.
“This is an opportunity for a free-for-all.”
As Moore had feared, when it came time for the Court to deliver its June 28 decision on Loper Bright (which it had merged with a near-identical case, Relentless, Inc. v. Department of Commerce), the conservative majority overturned a decades-old legal precedent known as “Chevron deference.” Named after a 1984 Supreme Court case involving the oil giant, the doctrine was one of the most cited legal precedents ever. For 40 years, it instructed judges to defer to an agency’s interpretation of a law—say, the Clean Water Act, Social Security Act, Affordable Care Act—when that law was unclear. Now, thanks to the pair of lawsuits (and the anti-regulatory interests like Charles Koch, who backed them), the power to determine the “best” reading of ambiguous statutes now falls to judges, not agency officials.
While it’s clear that the decision will be extraordinarily broad (which I’ve written about here and here), the specific, concrete details about its impact are less obvious. What will the ruling mean, for instance, for herring? Or other fish we eat? Or any of the more than 1,000 threatened and endangered species in the US?
Let’s start with herring. The regulation that sparked Relentless and Loper Bright required herring fishermen to pay for boat observers to monitor their catches—around $700 per trip—a practice intended to document what species are caught and prevent overfishing under the Magnuson–Stevens Act. While the Supreme Court took up the case, it only agreed to address Chevron deference, putting the fate of the fishing regulation in the hands of lower courts.
But beyond that single rule, Moore worries about federal efforts to manage fisheries in all sorts of other ways. Under the Magnuson–Stevens Act, the primary law governing US fisheries, she explains, the National Oceanic and Atmospheric Administration (NOAA) sets catch limits for various types of fish. If a population becomes overfished, the agency creates plans to rebuild them. In the last nearly 25 years, the agency says it’s helped recover 50 fish stocks, including populations of bocaccio (a type of rockfish), Snohomish coho salmon, and Pacific Ocean perch. But now, if the agency’s regulations are challenged in court, it will be up to a judge, rather than NOAA officials, to identify the most suitable application of laws like the Magnuson–Stevens Act—a change Moore worries will make it harder for NOAA to keep US fisheries operating sustainably.
Many other regulations may also be at risk. According to Democracy Forward, a nonprofit public policy research organization tracking lower-court citations of Loper Bright and Relentless, there have been at least 40 references to the court’s Chevron ruling as of mid-July, including in filings in 19 different cases and opinions from 11 courts. These citations involve many areas of the law, from gas appliance energy standards, Title IX, abortion, airline fees, anti-discrimination provisions in health care, and more. “By and large, these cases are being used aggressively to seek to stop regulations and programs that benefit the American people,”said Skye Perryman, the president and CEO of Democracy Forward. In one lawsuit, Massachusetts Lobstermen Association v. National Marine Fisheries Service, lawyers representing lobster fishermen referenced the Supreme Court’s Chevron ruling as part of their fight against a federal regulation intended to protect North Atlantic right whales. (Read more about this battle here.)
But not every environmental advocate sees the overturning of Chevron deference as a disaster for plants and animals.Brett Hartl, the government affairs director at the Center for Biological Diversity, an environmental group that has sued the federal government many times for not doing enough to protect imperiled wildlife, told me that he expects the decision to yield a “mixed bag” of lawsuits that will take years to play out. But he also sees it as an opportunity to strengthen certainenvironmental protections.
For instance, Hartl argues, the Fish and Wildlife Service hasn’t always gone far enough to protect at-risk species as required by the Endangered Species Act. The agency has failed to follow its own species recovery plans, he argues, often proposing to delist species too soon. And it has never fully grappled with a key definition in the ESA: what it means for a species to be at risk of extinction within “a significant portion” of its “range”—whether that means an animal’s current range, historic range, or something else. The agency’s “unambitious” and “piecemeal” approach to recovery, as the Center for Biological Diversity has described it, hurts creatures like wolves and grizzly bears that once roamed large swaths of the country. (When reached by email, a spokesperson with the Fish and Wildlife Service pointed me to the Department of Interior, which declined to comment on its alleged shortcomings or the impacts of overturning Chevron broadly.)
Similarly, the wording of the National Environmental Policy Act, or NEPA, Hartl points out, suggests a need to steward the environment for “succeeding generations.” With this language, he argues, “NEPA creates almost an intergenerational responsibility to the environment,” and no administration has ever really capitalized on that mandate. Now, without Chevron, he argues, a federal judge might agree that federal agencies ought to do more to protect the environment under the law.
“If you have agencies constantly not meeting their mandates, and sort of falling short,” Hartl says, “Chevron is mostly a shield for them that has allowed them to perpetuate bad behavior.”
Now that Chevron is gone, Hartl says, “there actually are opportunities to make things better.” (The Center for Biological Diversity, he told me, is already planning to “retool” some of its ongoing lawsuits and introduce new ones to take advantage of the ruling.) Hartl argues that if Donald Trump wins reelection, his agencies will have “a hell of a lot less power” when it comes to regulations. “Do you want them having all this deference? I don’t.”
But overall, most of the experts I’ve spoken to about Chevron deference did not see a silver lining for wild plants and animals(or for environmental protections as a whole). Holly Doremus, an environmental law professor at UC Berkeley School of Law, told me via email that an optimistic view like the Center for Biological Diversity’s may be trying to “see the best in a bad situation.” In the short run, she expects federal courts to follow the Supreme Court’s lead and “be much more skeptical” of agency actions they see as overstepping the law rather than those seen as not going far enough for, say, endangered species protection. As Vermont Law School emeritus professor Pat Parenteau explains, lower courts often take their cues from the Supreme Court, which has signaled a clear desire to narrowenvironmentallaws and reign in agency authority.
Lower courts often take their cues from the Supreme Court, which has signaled a clear desire to narrow environmental laws and reign in agency authority.
Other experts noted that the loss of Chevron will likely prompt groups on all sides of the political spectrum to judge-shop in specific courts to challenge rules they dislike. This could lead to a “lack of coherence” in which agency regulations are overturned or upheld, NRDC lawyer David Doniger, who argued the original 1984 Chevron case before the Supreme Court, told me ahead of the recent ruling. (It’s no secret, for instance, that a disproportionate number of lawsuits against Biden administration regulations are filed in the Amarillo Division of the US District Court for the Northern District of Texas, where conservative, Trump-appointed Judge Matthew Kacsmaryk sits.)
“I think you could have maybe a few wins here and there,” the Ocean Conservancy’s Moore says. “But I’m more concerned about the instability, uncertainty, and patchwork nature of what regulations will look like if they’re all able to be sued in different ways in different places.”
Echoing both Moore and Doremus, Parenteau said that while environmental advocates may see some victories in court, he believes they’re up against a “stacked deck” under this new system,in part because of the signals coming from the Supreme Court and industry’s near-unlimited resources to sue the government.
“The opponents of environmental regulation have the upper hand, there is no question about it,” he says.” And they’re going to win and win and win. And environmental advocates are just going to have to scrape and claw and try to win a few. That’s the world we’re in.”
The fate of gender-affirming care for transgender youth in Ohio will soon rest in one person’s hands. For the past week, Franklin County Judge Michael Holbrook has heard a case challenging a recent state law that includes a ban on the use of puberty blockers and hormones for trans youth. Now, it’s up to him to decide whether to turn a temporary block on the law into a permanent one—which would make Ohio just the third state to do so as a growing body of anti-trans laws moves through the courts.
From his chambers on the fifth floor of a downtown Columbus courthouse, the judge has heard pleas from the parents of trans children whose lives have been saved by gender-affirming care, physicians from the state’s children’s hospitals, and national experts in trans care. He’s also heard the state’s sharp defense of its law, featuring what is being framed as the “expert” testimony of nationally prominent anti-trans activists who made dubious claims about the efficacy and risks of puberty blockers, hormones, and other gender-affirming medical treatment.
Ohio’s sweeping law, dubbed the “Saving Adolescents from Experimentation” or “SAFE” Act, doesn’t just block the use of puberty blockers and hormones in trans youth (while allowing such medical interventions for cisgender children who may need them for precocious puberty or polycystic ovary syndrome). Passed by a GOP supermajority in January over Republican Gov. Mike DeWine’s veto, it also prohibits trans girls and women from playing women’s sports, including college athletics. The ACLU of Ohio is challenging the entire law as a violation of the state’s single-subject rule for legislation, which requires that bills must pertain to one topic. The state says that topic is “addressing gender transition in children,” but the trial mainly focused on what the families of two trans girls have argued is the discriminatory, life-threatening impact of the ban ongender-affirming care.
“She laid down and wept in my bed. She is carrying looming anxiety and deep sadness surrounding this law.”
Ohio is among the 25 states with laws on the books restricting gender-affirming care, according to the Kaiser Family Foundation, and 39 percentof trans youth live in states with such policies. While most bans have been challenged—and several temporarily blocked, like Ohio’s—the vast majority remain in effect. Only policies in Florida and Arkansas have been permanently enjoined, while the US Supreme Court has agreed to hear a case this coming term about the constitutionality of trans care bans.
On Monday, the mother of a 12-year-old trans girl testified that when her daughter began publicly identifying as a girl, her anxiety “melted away.” The daughter, going by the alias “Grace Goe,” has received gender-affirming mental health care for seven years and hopes to medically suppress puberty at its onset. The prospect of not being able to access that medical care has caused immense distress for Goe and her family. “She laid down and wept in my bed,” her mother said of Goe learning of the ban. “She is carrying looming anxiety and deep sadness surrounding this law.”
The state of Ohio showcased its line of experts, including Jamie Reed, aself-identified “whistleblower,” whose claims about a Missouri gender clinic have been widely disputed by families of the clinic’s current and former patients. Another Ohio witness was James Cantor, a Canadian sex researcher who has testified in support of gender-affirming care bans in trials across the country.
Cantor, a PhD who has never diagnosed a child with gender dysphoria or served on a child’s gender-affirming care team, claimed US studies on gender-affirming care are “sloppy” and that such care causes “sterility in children.” While hormones are known to cause temporary infertility, the long-term effects are unknown—which is why the World Professional Association for Transgender Health (WPATH), the leading professional organization for gender-affirming care providers, recommends providers and patients extensively discuss fertility impacts and options before initiating such treatments. (Some forms of gender-affirming surgery do cause permanent infertility, but foryears the Ohio Children’s Hospital Association has assured lawmakers it is not being offered to trans youth in Ohio.)
And as my colleague Madison Pauly revealed last year, it’s not medical professionals or swaths of people who have stopped gender-affirming care proposing these bans to state legislators; many are conservative Christian organizations that believe transness is something to be “cured.”
As the trial wraps up on Friday, it bears repeating what actual experts testified: Dr. Sarah Corathers, an endocrinologist at Cincinnati Children’s Hospital who has served on care teams for about 300 trans youth over the past decade, said she’s seen patients’ quality of life improve under her care. “When medically indicated, gender-affirming medical treatment is safe, effective, and well-established,” she said. Dr. Jack Turban, the director of the University of California, San Francisco’s Gender Psychiatry program, explained the widely accepted protocols clinicians in Ohio and elsewhere use for offering such care to trans youth, including using a multidisciplinary team of providers, offering comprehensive mental health support, and making every decision in concert with the trans child and their parents. He noted that every major medical organization opposes bans on gender-affirming care.
The fate of gender-affirming care for transgender youth in Ohio will soon rest in one person’s hands. For the past week, Franklin County Judge Michael Holbrook has heard a case challenging a recent state law that includes a ban on the use of puberty blockers and hormones for trans youth. Now, it’s up to him to decide whether to turn a temporary block on the law into a permanent one—which would make Ohio just the third state to do so as a growing body of anti-trans laws moves through the courts.
From his chambers on the fifth floor of a downtown Columbus courthouse, the judge has heard pleas from the parents of trans children whose lives have been saved by gender-affirming care, physicians from the state’s children’s hospitals, and national experts in trans care. He’s also heard the state’s sharp defense of its law, featuring what is being framed as the “expert” testimony of nationally prominent anti-trans activists who made dubious claims about the efficacy and risks of puberty blockers, hormones, and other gender-affirming medical treatment.
Ohio’s sweeping law, dubbed the “Saving Adolescents from Experimentation” or “SAFE” Act, doesn’t just block the use of puberty blockers and hormones in trans youth (while allowing such medical interventions for cisgender children who may need them for precocious puberty or polycystic ovary syndrome). Passed by a GOP supermajority in January over Republican Gov. Mike DeWine’s veto, it also prohibits trans girls and women from playing women’s sports, including college athletics. The ACLU of Ohio is challenging the entire law as a violation of the state’s single-subject rule for legislation, which requires that bills must pertain to one topic. The state says that topic is “addressing gender transition in children,” but the trial mainly focused on what the families of two trans girls have argued is the discriminatory, life-threatening impact of the ban ongender-affirming care.
“She laid down and wept in my bed. She is carrying looming anxiety and deep sadness surrounding this law.”
Ohio is among the 25 states with laws on the books restricting gender-affirming care, according to the Kaiser Family Foundation, and 39 percentof trans youth live in states with such policies. While most bans have been challenged—and several temporarily blocked, like Ohio’s—the vast majority remain in effect. Only policies in Florida and Arkansas have been permanently enjoined, while the US Supreme Court has agreed to hear a case this coming term about the constitutionality of trans care bans.
On Monday, the mother of a 12-year-old trans girl testified that when her daughter began publicly identifying as a girl, her anxiety “melted away.” The daughter, going by the alias “Grace Goe,” has received gender-affirming mental health care for seven years and hopes to medically suppress puberty at its onset. The prospect of not being able to access that medical care has caused immense distress for Goe and her family. “She laid down and wept in my bed,” her mother said of Goe learning of the ban. “She is carrying looming anxiety and deep sadness surrounding this law.”
The state of Ohio showcased its line of experts, including Jamie Reed, aself-identified “whistleblower,” whose claims about a Missouri gender clinic have been widely disputed by families of the clinic’s current and former patients. Another Ohio witness was James Cantor, a Canadian sex researcher who has testified in support of gender-affirming care bans in trials across the country.
Cantor, a PhD who has never diagnosed a child with gender dysphoria or served on a child’s gender-affirming care team, claimed US studies on gender-affirming care are “sloppy” and that such care causes “sterility in children.” While hormones are known to cause temporary infertility, the long-term effects are unknown—which is why the World Professional Association for Transgender Health (WPATH), the leading professional organization for gender-affirming care providers, recommends providers and patients extensively discuss fertility impacts and options before initiating such treatments. (Some forms of gender-affirming surgery do cause permanent infertility, but foryears the Ohio Children’s Hospital Association has assured lawmakers it is not being offered to trans youth in Ohio.)
And as my colleague Madison Pauly revealed last year, it’s not medical professionals or swaths of people who have stopped gender-affirming care proposing these bans to state legislators; many are conservative Christian organizations that believe transness is something to be “cured.”
As the trial wraps up on Friday, it bears repeating what actual experts testified: Dr. Sarah Corathers, an endocrinologist at Cincinnati Children’s Hospital who has served on care teams for about 300 trans youth over the past decade, said she’s seen patients’ quality of life improve under her care. “When medically indicated, gender-affirming medical treatment is safe, effective, and well-established,” she said. Dr. Jack Turban, the director of the University of California, San Francisco’s Gender Psychiatry program, explained the widely accepted protocols clinicians in Ohio and elsewhere use for offering such care to trans youth, including using a multidisciplinary team of providers, offering comprehensive mental health support, and making every decision in concert with the trans child and their parents. He noted that every major medical organization opposes bans on gender-affirming care.
Just when the IRS was starting to get its mojo back, the Supreme Court had to go and throw a wrench into the works.
By now, most civic-minded Americans will have heard about the recent high court rulings that threaten to crush the administrative state, crippling the government’s ability to enact and enforce critical regulations that advance the nation’s interests and protect her citizens.
My colleague Jackie Mogensen recently described how a 2023 Supreme Court decision limiting the EPA’s jurisdiction has made way for polluted rivers. June’s rulings bode far worse, for both the natural environment and efforts to combat climate change. Colleague Nina Martin has examined how the new rulings will be weaponized to gut reproductive rights. The New Republic’s Timothy Noah covered how they may affect the banking sector—and the economy. Others have looked at impacts on health care. And so I set out to determine the extent of the chaos the court’s rulings will unleash on the federal tax system.
Short answer: Nobody knows, but it won’t be pretty.
Loper “unleashes so much chaos,” says Georgetown Law professor Brian Galle. “I think you will see a massive wave of antiregulatory lawsuits.”
Tax law is extraordinarily complicated. So much so that few lawmakers have any hope of understanding its nuances. Attorneys who specialize in tax, as one of my sources points out, tend to go beyond law school to obtain a master’s degree. Tax is also a realm that demands long-term planning by individuals and businesses. Stability is important. But with the Supreme Court latest actions, “what used to be fairly settled law now becomes potentially unsettled,” says attorney Harvey Dale, who has taught tax at the New York University School of Law for more than four decades. “It’s a very, very bad outcome.”
Two rulings in particular “will bring much more litigation into the federal courts. I’m talking hundreds, maybe thousands of litigations trying to take down regulations, some of which may be 50 years old. So that unsettles planning for the entire nongovernmental sector,” Dale says.
First and most notable is Loper Bright Enterprises v. Raimondo, wherein the Supreme Court majority killed the so-called Chevron deference. Chevron is the legal standard that has long guided career experts at federal agencies as they carried out the intent of Congress, translating broad legislative strokes into enforceable regulations related to climate, commerce, energy, health care, and other realms. The demise of Chevron makes it easier for special interests to successfully challenge federal agencies in court—and to tie up pending regulations with nuisance lawsuits.
Adding insult to injury was Corner Post Inc. v Board of Governors, in which the majority stunned observers by ruling that the six-year statute of limitations for challenging federal regulations begins not when a regulation is first enacted, but rather when the party who brought the complaint was first affected. Corner Post puts Loper on steroids, making almost any regulation fair game.
These decisions, Dale says, “emasculate” the rulemaking ability of highly technical federal agencies, “because they’re going to be worried—correctly—about the extent to which litigation will bring them to court, and maybe invalidate their regulations.”
Loper “unleashes so much chaos,” concurs Georgetown Law professor Brian Galle, who teaches courses in taxation, nonprofits, and behavioral law and economics. “I think you will see a massive wave of antiregulatory lawsuits.”
“A rule of judicial humility gives way to a rule of judicial hubris,” Justice Kagan wrote in her Loper dissent. “The majority disdains restraint, and grasps for power.”
Tribune Media Company barely let the ink dry on the Loper ruling before mounting a challenge to IRS guidelines designed to curb what it calls “abusive basis-shifting” by partnerships. Last Wednesday, a lawyer for the IRS commissioner wrote to a federal appeals court contesting the Tribune challenge and pointing out that the agency had not relied on Chevron in its determination.
The Tribune company, the letter said, tried “to abuse federal tax rules to avoid a prodigious tax bill when it sold the Chicago Cubs and related assets. That ran afoul of, among other things, the partnership anti-abuse rule, [which] is supported by a long and unbroken history of judicial doctrines and congressional enactments empowering the IRS to combat the kind of chicanery attempted here.”
The IRS seems to have a solid case here, but that’s not the point. The point is that the agency will be forced to divert more of its hard-won and embattled resources to fend off the coming firehose of legal actions. “There’s such a long list, especially when you start talking about small businesses,” Galle says. Major law firms, Dale points out, have been reaching out to clients and holding webinars on what these rulings might mean for them. (This one highlights various “opportunities” and “avenues for challenge.”)
Lawmakers, too, have taken a keen interest in weaponizing Loper. Also last Wednesday, House Republican committee chairs sent letters to a host of agencies and Cabinet heads—including Treasury Secretary Janet Yellen—asking them to describe how Chevron‘s demise will affect their rulemaking. “We’ve already seen how frequently federal agencies will abuse their authority,” House Majority Leader Steve Scalise (R-La.) said in the announcement. “We intend to ensure agencies are held accountable following the court’s ruling and observe the proper checks on their power.”
“The big picture to me is the court grabbing power,” says Steven Rosenthal, who drafted tax law for Congress as a former staff attorney for the bipartisan Joint Committee on Taxation. “If that goes unchecked, it vastly diminishes the ability of Congress to write statutes and the executive branch to administer them. Everything becomes an interpretive question to be resolved by the courts.”
Justice Elena Kagan had a similar reaction. The Loper majority “flips the script,” she wrote in her scathing dissent (see page 82). “A rule of judicial humility gives way to a rule of judicial hubris…The majority disdains restraint, and grasps for power.”
Tax is a peculiar beast. Lawmakers, recognizing that they often have no clue what they’re doing, give the IRS and Treasury Department an unusual degree of statutory authority to craft workable tax rules and “fill in the details,” as Chief Justice John Roberts wrote for the Loper majority. (See page 17.)
“When the best reading of a statute is that it delegates discretionary authority to an agency,” Roberts wrote, the court’s role is “to effectuate the will of Congress subject to constitutional limits.” These last four words, Rosenthal fears, may signal the court’s future willingness to rule that Congress is delegating more of its power to an agency than the Constitution allows.
Justice Kagan wrote in her Loper dissent that themajority, in killing Chevron, had revived a legal test from the 1944 case Skidmore v. Swift, which held that “agency interpretations ‘constitute a body of experience and informed judgment’ that may be ‘entitled to respect,’” she wrote, but, “If the majority thinks that the same judges who argue today about where ‘ambiguity’ resides [in statutory language] are not going to argue tomorrow about what ‘respect’ requires, I fear it will be gravely disappointed.”
Indeed, the issue for the IRS is that lawyers for corporations and ultrawealthy taxpayers are already starting to throw spaghetti at the wall to see what will stick.
Every time the IRS moves to close an abusive loophole, it is “interpreting the statute to say thatcan’t be what Congress meant,” Galle told me. Such interpretations, he says—which would include the aforementioned partnership guidelines and the IRS’s warnings about wealthy taxpayers claiming “inappropriately large deductions” for conservation easements—are now more vulnerable to legal challenges.
The justices “had the hubris to believe that they alone can solve problems. They interpret the Constitution in a way that that leaves our government in disrepair.”
Let’s not forget that the IRS has only just begun to recover from decades of Republican-imposed shortfalls, and is still a long way from being fully back on track. “It’s hard to even fathom how far behind their rulemaking is,” says Galle, who is interested in rules around charitable giving. The IRS, for example, has long been mulling rules for donor advised funds, “the new kind of pet charities of a certain group of rich people,” he says. The agency “was supposed to create those rules in 2009, and they haven’t even proposed some of them yet.”
Galle also foresees “upstream pressure” on “the drafters and the general counsel’s office” to make rules that are more resilient to litigation—“which the IRS is not staffed for: They have kind of had their hands over their eyes and their fingers in their ears to warnings that the anti-regulatory tide is eventually going to pull them out to sea.”
Rosenthal finds the notion of so much judicial intervention hard to stomach. If Congress doesn’t have the capacity to deal with the intricacies of tax, he says, “the courts are even worse positioned. Each justice has, like, three or four clerks who are three years out of law school. Congress at least has technical experts like myself—lawyers and economists and others.”
“The court doesn’t have any of those facilities,” Rosenthal continues. “They just had the hubris to believe that they alone can solve problems. They interpret the Constitution in a way that that leaves our government in disrepair, and I think that’s by design. I think that’s what they want.”
Dale predicts the rulings will result in a year or two of gridlock in the federal courts, at which point “Chief Justice Roberts is going to say, this is a terrible problem and in order to allow people to have their rights determined, we need more federal judges. And the Congress is going to say okay. And so we’re going to have an enlargement of the federal judiciary, all of whom serve for life terms.”
If that happens, Dale says, whomever happens to be president will have the opportunity to make lots and lots of appointments, and “we’ll see the policy impact for 40 or 50 years.”
Just when the IRS was starting to get its mojo back, the Supreme Court had to go and throw a wrench into the works.
By now, most civic-minded Americans will have heard about the recent high court rulings that threaten to crush the administrative state, crippling the government’s ability to enact and enforce critical regulations that advance the nation’s interests and protect her citizens.
My colleague Jackie Mogensen recently described how a 2023 Supreme Court decision limiting the EPA’s jurisdiction has made way for polluted rivers. June’s rulings bode far worse, for both the natural environment and efforts to combat climate change. Colleague Nina Martin has examined how the new rulings will be weaponized to gut reproductive rights. The New Republic’s Timothy Noah covered how they may affect the banking sector—and the economy. Others have looked at impacts on health care. And so I set out to determine the extent of the chaos the court’s rulings will unleash on the federal tax system.
Short answer: Nobody knows, but it won’t be pretty.
Loper “unleashes so much chaos,” says Georgetown Law professor Brian Galle. “I think you will see a massive wave of antiregulatory lawsuits.”
Tax law is extraordinarily complicated. So much so that few lawmakers have any hope of understanding its nuances. Attorneys who specialize in tax, as one of my sources points out, tend to go beyond law school to obtain a master’s degree. Tax is also a realm that demands long-term planning by individuals and businesses. Stability is important. But with the Supreme Court latest actions, “what used to be fairly settled law now becomes potentially unsettled,” says attorney Harvey Dale, who has taught tax at the New York University School of Law for more than four decades. “It’s a very, very bad outcome.”
Two rulings in particular “will bring much more litigation into the federal courts. I’m talking hundreds, maybe thousands of litigations trying to take down regulations, some of which may be 50 years old. So that unsettles planning for the entire nongovernmental sector,” Dale says.
First and most notable is Loper Bright Enterprises v. Raimondi, wherein the Supreme Court majority killed the so-called Chevron deference. Chevron is the legal standard that has long guided career experts at federal agencies as they carried out the intent of Congress, translating broad legislative strokes into enforceable regulations related to climate, commerce, energy, health care, and other realms. The demise of Chevron makes it easier for special interests to successfully challenge federal agencies in court—and to tie up pending regulations with nuisance lawsuits.
Adding insult to injury was Corner Post Inc. v Board of Governors, in which the majority stunned observers by ruling that the six-year statute of limitations for challenging federal regulations begins not when a regulation is first enacted, but rather when the party who brought the complaint was first affected. Corner Post puts Loper on steroids, making almost any regulation fair game.
These decisions, Dale says, “emasculate” the rulemaking ability of highly technical federal agencies, “because they’re going to be worried—correctly—about the extent to which litigation will bring them to court, and maybe invalidate their regulations.”
Loper “unleashes so much chaos,” concurs Georgetown Law professor Brian Galle, who teaches courses in taxation, nonprofits, and behavioral law and economics. “I think you will see a massive wave of antiregulatory lawsuits.”
“A rule of judicial humility gives way to a rule of judicial hubris,” Justice Kagan wrote in her Loper dissent. “The majority disdains restraint, and grasps for power.”
Tribune Media Company barely let the ink dry on the Loper ruling before mounting a challenge to IRS guidelines designed to curb what it calls “abusive basis-shifting” by partnerships. Last Wednesday, a lawyer for the IRS commissioner wrote to a federal appeals court contesting the Tribune challenge and pointing out that the agency had not relied on Chevron in its determination.
The Tribune company, the letter said, tried “to abuse federal tax rules to avoid a prodigious tax bill when it sold the Chicago Cubs and related assets. That ran afoul of, among other things, the partnership anti-abuse rule, [which] is supported by a long and unbroken history of judicial doctrines and congressional enactments empowering the IRS to combat the kind of chicanery attempted here.”
The IRS seems to have a solid case here, but that’s not the point. The point is that the agency will be forced to divert more of its hard-won and embattled resources to fend off the coming firehose of legal actions. “There’s such a long list, especially when you start talking about small businesses,” Galle says. Major law firms, Dale points out, have been reaching out to clients and holding webinars on what these rulings might mean for them. (This one highlights various “opportunities” and “avenues for challenge.”)
Lawmakers, too, have taken a keen interest in weaponizing Loper. Also last Wednesday, House Republican committee chairs sent letters to a host of agencies and Cabinet heads—including Treasury Secretary Janet Yellen—asking them to describe how Chevron‘s demise will affect their rulemaking. “We’ve already seen how frequently federal agencies will abuse their authority,” House Majority Leader Steve Scalise (R-La.) said in the announcement. “We intend to ensure agencies are held accountable following the court’s ruling and observe the proper checks on their power.”
“The big picture to me is the court grabbing power,” says Steven Rosenthal, who drafted tax law for Congress as a former staff attorney for the bipartisan Joint Committee on Taxation. “If that goes unchecked, it vastly diminishes the ability of Congress to write statutes and the executive branch to administer them. Everything becomes an interpretive question to be resolved by the courts.”
Justice Elena Kagan had a similar reaction. The Loper majority “flips the script,” she wrote in her scathing dissent (see page 82). “A rule of judicial humility gives way to a rule of judicial hubris…The majority disdains restraint, and grasps for power.”
Tax is a peculiar beast. Lawmakers, recognizing that they often have no clue what they’re doing, give the IRS and Treasury Department an unusual degree of statutory authority to craft workable tax rules and “fill in the details,” as Chief Justice John Roberts wrote for the Loper majority. (See page 17.)
“When the best reading of a statute is that it delegates discretionary authority to an agency,” Roberts wrote, the court’s role is “to effectuate the will of Congress subject to constitutional limits.” These last four words, Rosenthal fears, may signal the court’s future willingness to rule that Congress is delegating more of its power to an agency than the Constitution allows.
Justice Kagan wrote in her Loper dissent that themajority, in killing Chevron, had revived a legal test from the 1944 case Skidmore v. Swift, which held that “agency interpretations ‘constitute a body of experience and informed judgment’ that may be ‘entitled to respect,’” she wrote, but, “If the majority thinks that the same judges who argue today about where ‘ambiguity’ resides [in statutory language] are not going to argue tomorrow about what ‘respect’ requires, I fear it will be gravely disappointed.”
Indeed, the issue for the IRS is that lawyers for corporations and ultrawealthy taxpayers are already starting to throw spaghetti at the wall to see what will stick.
Every time the IRS moves to close an abusive loophole, it is “interpreting the statute to say thatcan’t be what Congress meant,” Galle told me. Such interpretations, he says—which would include the aforementioned partnership guidelines and the IRS’s warnings about wealthy taxpayers claiming “inappropriately large deductions” for conservation easements—are now more vulnerable to legal challenges.
The justices “had the hubris to believe that they alone can solve problems. They interpret the Constitution in a way that that leaves our government in disrepair.”
Let’s not forget that the IRS has only just begun to recover from decades of Republican-imposed shortfalls, and is still a long way from being fully back on track. “It’s hard to even fathom how far behind their rulemaking is,” says Galle, who is interested in rules around charitable giving. The IRS, for example, has long been mulling rules for donor advised funds, “the new kind of pet charities of a certain group of rich people,” he says. The agency “was supposed to create those rules in 2009, and they haven’t even proposed some of them yet.”
Galle also foresees “upstream pressure” on “the drafters and the general counsel’s office” to make rules that are more resilient to litigation—“which the IRS is not staffed for: They have kind of had their hands over their eyes and their fingers in their ears to warnings that the anti-regulatory tide is eventually going to pull them out to sea.”
Rosenthal finds the notion of so much judicial intervention hard to stomach. If Congress doesn’t have the capacity to deal with the intricacies of tax, he says, “the courts are even worse positioned. Each justice has, like, three or four clerks who are three years out of law school. Congress at least has technical experts like myself—lawyers and economists and others.”
“The court doesn’t have any of those facilities,” Rosenthal continues. “They just had the hubris to believe that they alone can solve problems. They interpret the Constitution in a way that that leaves our government in disrepair, and I think that’s by design. I think that’s what they want.”
Dale predicts the rulings will result in a year or two of gridlock in the federal courts, at which point “Chief Justice Roberts is going to say, this is a terrible problem and in order to allow people to have their rights determined, we need more federal judges. And the Congress is going to say okay. And so we’re going to have an enlargement of the federal judiciary, all of whom serve for life terms.”
If that happens, Dale says, whomever happens to be president will have the opportunity to make lots and lots of appointments, and “we’ll see the policy impact for 40 or 50 years.”
Two weeks ago, the Supreme Court announced that former presidents are immune from prosecution for possibly all official acts undertaken while in office. Thisnew rule, the majority said, was critical to preserving the separation of powers in our democracy. Justice Clarence Thomas, characteristically, went further. The real threat to democracy was not an unaccountable president but, rather, the very existence of the special prosecutor who was leading the case.
In a concurrence, Thomas questioned whether the attorney general had the authority to appoint Jack Smith,the special counsel who was prosecuting Trump. “We must respect the Constitution’s separation of powers in all its forms, else we risk rendering its protection of liberty a parchment guarantee,” Thomas wrote. He called on federal judges to determine whether Attorney General Merrick Garland, himself the former chief judge on the DC Circuit Court of Appeals, had made the appointment illegally. “The lower courts should thus answer these essential questions concerning the Special Counsel’s appointment before proceeding,” Thomas urged.
Today, Judge Aileen Cannon answered that call. In a shocking opinion, Cannon threw out Smith’s separate case against Trump for allegedly hiding classified documents at Mar-a-Lago and attempting to thwart an investigation into the matter. Smith, Cannon concluded, was not appointed or funded according to the rules laid out in the Constitution.
Cannon, a Trump appointee in Florida, began contemplating this question before Thomas’ concurrence in the immunity case. Trump’s legal team had filed its motion asking for the documents case to be dismissed on these grounds on February 22, and Cannon held a hearing on the question on June 21. As part of that hearing, she invited attorneys who had filed amicus briefs on the topic to argue before her. The hearing lasted four hours. A week later, the Supreme Court handed down the immunity case, and Thomas exhorted lower court judges to look into the legality of Smith’s appointment. Thomas’ invitation came just in time for Cannon to take it up, and she cited the Thomas concurrence three times.
Cannon’s decision is stunning in part because it upends the apparently settled understanding of the powers of the attorney general since the creation of the Justice Department in 1870. The Supreme Court affirmed the constitutionality of a special counsel in United States v. Nixon. And when the appointment of Robert Mueller as special counsel for the Trump-Russia investigation was challenged, the district court and the DC Circuit Court of Appeals left Mueller in place. That was five years ago.
Cannon’s decision is likely to be appealed to—and quite possibly overturned by—the 11th Circuit, where Republican-appointed appellate judges have frequently refused to comply with Trump’s wishes. But there is an undeniabletrend of Thomas’ outlier opinions eventually becoming the law of the land, especially now that conservatives have a 6-3 majority on the Supreme Court. His invitation to find Smith’s appointment unlawful, despite precedent and a long history to the contrary, could ultimately win the day.
Both Thomas and Cannon frame the special counsel appointment as a violation of the separation of powers—the executive branch snatching power from Congress because, they argue, Congress didn’t explicitly create the special counsel position. This framing dramatizes what is ultimately a statutory interpretation case. Do the laws that give the attorney general the power to appoint special counsels do so explicitly enough? No one has said the Constitution forbids such a position to exist, they only challenge whether Congress has given the attorney general that permission to fill it and fund it.
Cannon ends her opinion by asserting that the executive branch has been, through more than 150 years of such appointments, upsetting the balance of powers between the three branches. “The accretion of dangerous power does not come in a day,” Cannon wrote near the end of her lengthy opinion, quoting from formerJustice Felix Frankfurter. “It does come, however slowly, from the generative force of unchecked disregard of the restrictions that fence in even the most disinterested assertion of authority.” Finally, Cannon implies, she is putting a stop to such lawlessness.
If there’s one thing the current Supreme Court does, it is overturn longstanding precedents and previouslysettled understandings of the law. It overturned Roe v. Wade, threw out decades of precedents upholding affirmative action, upended potentially thousands of regulations by jettisoning Chevron Deference, and remade the presidency into an office largely unconstrained by criminal law. It would be shocking if the court decided that special counsel appointments were unlawful—but at this point it would not be out of character.
Rep. Alexandria Ocasio-Cortez (D-N.Y.) wants justices Samuel Alito and Clarence Thomas removed fromthe Supreme Court.
On Wednesday, the congresswoman filed articles of impeachment against the two justices, alleging in a speech on the House floor that they have a “yearslong pattern of misconduct and failure to recuse in cases bearing their clear personal and financial involvement.” Ocasio-Cortez said these represent “an abuse of power and threat to our democracy fundamentally incompatible with continued service on our nation’s highest court.”
The filing to impeach Alito centers on his failure to report a luxury fishing trip granted by billionaire Paul Singer—which was also first reported by ProPublica last year. The impeachment article notes Alito failed to recuse himself from cases Singer had before the court. And it points out that the justice and his wife, Martha-Ann Alito, flew insurrection- and Christian nationalist-themed flags outside their homes, as first reported by the New York Times. Samuel Alito subsequently blamed his wife for flying the flags. But the impeachment article says he should have recused himself from the election and Jan. 6 cases before the court regardless.
It turns out the most consequential reproductive rights case before the Supreme Court this past term—arguably, the most significant since the overturn of Roe v. Wade—wasn’t the religious right’s attack on the abortion drug mifepristone, or the battle over whether the federal Emergency Medical Treatment and Labor Act requires hospitals to provide emergency abortions in states with strict bans. It was a fight over who should pay to monitor commercial fishing boats so they don’t deplete the herring population off the Atlantic coast.
Reproductive health and gender equality advocates are just beginning to digest the sweeping implications of the ruling in Loper Bright Enterprises v. Raimondo andRelentless, Inc. v. Department of Commerce, in which the court’s conservative supermajority overturned a 40-year-old cornerstone of US administrative law known as “Chevron deference.” In doing so, the justices vastly limited the power of federal agencies to issue regulations on everything from financial markets to industrial pollution to drug pricing to workplace safety.
And abortion. And birth control. And trans equality. And pregnant workers’ rights.
“It’s hard to overstate the significance of the Loper Bright and Relentless decision” on reproductive and gender issues and federal policy more broadly, says Shaina Goodman, director for reproductive health and rights at the National Partnership for Women and Families. “It has deep and far-reaching consequences that we will see play out over the coming years.” That’s because many of the major regulations protecting or expanding reproductive and gender rights have been the result of federal agencies interpreting statutes enacted by Congress.
Certainly, anti-abortion groups were pleased at their new power to disrupt how federal laws are made and implemented. Eric Rassbach, vice president and senior counsel at the Becket Fund for Religious Liberty, a leading law firm focusing on religious issues, called Loper Bright “a landmark ruling” for groups that oppose abortion and birth control, such as nuns who’ve been fighting the Affordable Care Act’s contraceptive mandate for a decade. He predicted that the decision “would likely be the death knell” for, among other things, new Biden administration rules interpreting the Pregnant Workers Fairness Act to include workplace accommodations for people having abortions.
“From this day forward,” Justice Ketanji Brown Jackson wrote, “administrative agencies can be sued in perpetuity over every final decision they make…Even the most well-settled agency regulations can be placed on the chopping block.”
Then the Supreme Court gave the foundations of American law another vigorous shake. On the last day of the term, the same coalition of far-right justices amplified the likely impact of Loper Bright by opening the door to new, broad challenges to regulations long after they take effect. In Corner Post v. Board of Governors of the Federal Reserve System, a case involving a North Dakota truck stop and debit-card swipe fees, the court granted litigants virtually unlimited time to file suit over federal rules they claim cause them harm, instead of the six-year statute of limitations that had been in place.
If the implications for reproductive rights weren’t immediately obvious, Justice Ketanji Brown Jackson made the stakes clear in a blistering dissent. She pointed to efforts by anti-abortion doctors to overturn the Food and Drug Administration’s regulation of mifepristone—a case the justices rejected in June on the narrow grounds that the doctors didn’t have standing to sue. Now, Jackson suggested, the FDA’s approval of mifepristone in 2000 would be “fair game.” “From this day forward,” she wrote, “administrative agencies can be sued in perpetuity over every final decision they make…Even the most well-settled agency regulations can be placed on the chopping block.”
Taken together, the Loper Bright and Corner Post decisions cast a new light on the justices’ strategy this term to essentially punt the mifepristone suit and the federal-vs-state battle over EMTALA. Both of those cases centered on federal rules that are likely to be challenged under the court’s new reasoning—along with rules governing many other areas of health policy for decades to come, the think tank KFF warns.
The impact is likely to be felt particularly strongly in ideologically “combustible” issues such as reproductive health, gender rights, and climate change, predicts Georgetown Law professor Lisa Heinzerling. “These are areas where, it seems to me, [courts are] treating any protective regulation with some hostility,” she says. Long-settled federal rules on issues such as birth control and emergency contraception could make especially tempting targets for conservatives under Corner Post, legal experts say.
Some of the first effects are being felt in cases involving trans issues. Two days after the Supreme Court term ended, federal judges in Mississippi, Texas and Florida cited Loper Bright to block the Biden administration from enforcing a new rule that interpreted the Affordable Care Act to bar discrimination in health care on the basis of gender identity. “Any deference that would have been automatically given to the Biden administration has just been completely eliminated,” Sarah Parshall Perry, senior legal fellow at the Heritage Foundation, told the Washington Examiner.
As my Mother Jones colleagues havewritten, this term’s Supreme Court rulings were the culmination of a years-long campaign by conservative groups to throttle the federal government’s regulatory power and dismantle what they like to call the “administrative state.” Overturning the Supreme Court’s 1984 decision in Chevron U.S.A. v. Natural Resources Defense Council was central to that goal. In Chevron, the justices held thatwhen a federal statute was ambiguous on a certain issue, administrative agencies with specific expertise, such as the FDA or the Environmental Protection Agency, had wide latitude to issue rules interpreting and implementing the law—and if those rules were reasonable, lower courts had to defer to them. The rationale was simple: Congress couldn’t possibly weigh in on every last practice of every industry to which a law might apply. So it made sense for agencies to make the rules and for judges to mostly go along.
Conservatives began to argue that courts shouldn’t have to defer to the expertise of federal agencies to decide whether a regulation should be upheld; instead, judges should be able to use their own judgment.
At first, Chevron was seen as a victory for conservatives, becoming one of the most-cited precedents in American law. But when the Obama administration began using Chevron to push through its policy agenda, they changed their tune. In law journal articles and amicus briefs, conservatives began to argue that courts shouldn’t have to defer to the expertise of federal agencies to decide whether a regulation should be upheld; instead, judges should be able to use their own judgment.In his majority opinion in Loper Bright, Chief Justice John Roberts agreed with those arguments, asserting that agencies “have no special competence” to resolve statutory ambiguities. Whereas, he said, “courts do.”
The Corner Post case received much less attention while it was moving through the courts, perhaps because what it was proposing—basically ending the statute of limitations to challenge federal regulations—seemed so improbable. Certainly, its potential consequences for reproductive issues flew under the radar. According to the official transcript, the words “abortion,” “mifepristone,” and “gender” didn’t come up once during oral arguments this past spring.
But there were plenty of signs that anti-abortion groups were keenly interested in the outcomes of both cases. The law firm challenging the federal regulations in Corner Post happens to be the same firm representing the main Idaho lawmaker suing the Biden administration over EMTALA and emergency abortion care. In Loper Bright, a group of Christian businesses, represented by the powerhouse religious law firm Alliance Defending Freedom, filed an amicus brief that lists a string of issues that conservative groups are likely to target now that Chevron has been overturned, including Biden administration rules on Title X family planning funds, the mailing of abortion pills, pharmacy requirements for stocking contraceptives, and the patient privacy law known as HIPAA. (“Unelected federal bureaucrats frequently disrespect Americans’ most cherished liberties by imposing personal political agendas that ignore science and that bypass what Congress has authorized,” ADF senior counsel Julie Marie Blake said in an email, adding that thanks to the new SCOTUS ruling, courts are now “recognizing their duty to interpret these laws as written.”)
By contrast, with all their attention focused on the potentially blockbuster mifepristone and EMTALA cases, reproductive and LGBTQ rights organizations did not file amicus briefs in either Loper Bright or Corner Post. Now they are scrambling to figure out how to proceed. And because many of the coming battles will be happening in the super-wonky administrative law context, with courts chipping away at regulations one easily-overlooked decision at a time, repro groups could have a much harder time stirring up the level of passion among their supporters that has made the Dobbs decision one of the defining issues of the 2024 election cycle.
That’s ironic, because Loper Bright and Corner Post are likely to intensify the ideological battles around abortion and reproductive rights. “We’re unsettling 40 years of administrative precedent in a way that is really going to politicize a lot of these issues,” warns Skye Perryman, the CEO and president of Democracy Forward, a national legal organization that focuses on democracy issues and social justice. “Under Chevron deference, you had judges that might be considered to be conservative upholding rules that came out of liberal administrations. You had judges that might be considered liberal upholding rules that came out of conservative ones. Chevron really operated right to help depoliticize a lot of these things.”
Another irony: Those court battles are likely to be much more frequent and more heated if Joe Biden is reelected, says abortion historian Mary Ziegler, a law professor at the University of California, Davis. “Clearly Corner Post makes it a lot easier to win if you’re a conservative advocacy group, even when the statute of limitations would otherwise have expired,” she says. But with Trump officials running the administrative state, “conservatives may not be as enthused to argue that the courts rather than agencies should have primacy. There may not be as much of a need for those lawsuits if you have a Trump administration doing your work for you.”
Take, for example, the Chevron deference: Back in 1984, the case was a clear victory for the deregulation-minded Reagan administration. Overturning that precedent was part of “a strategy devised by conservatives at a time when federal agencies were mostly in the hands of Democrats,” Ziegler says.
There could well come a time when progressive lawmakers and courts could use Loper Bright to their own advantage, she adds. “It’s kind of like presidential immunity,” she says. “Obviously, if Trump is vowing to prosecute Biden, maybe that looks different to you. [Regulations and opinions] that are written with an eye to the world as it is now, may read differently if the White House changes hands.”
Last year, in one of the most significant environmental legal cases in recent history, the Supreme Court’s conservative majority severely limited the federal government’s ability to regulate waterways. By narrowly interpreting the Clean Water Act as only applying to “relatively permanent, standing, or continuously flowing bodies of water” and wetlands with a continuous surface connection to those bodies, the court effectively cut federal protections for more than half of the country’s wetlands. Around 90 million acres of marshy areas are now much more vulnerable to pollution.
Scientists knew immediately the consequences of the case, Sackett v. EPA, would be massive—one plant biologist I spoke to last year who’d devoted her retirement to protecting wild Venus flytraps called it “the worst thing that’s happened in my conservation life.” But determining how the decision would impact the country’s vast network of rivers, lakes, and streams would take time and some scientific digging.
More than half of the water in the US’ major rivers originates from ephemeral streams.
Now, a year later, some of that research is trickling in: A new study from researchers at Yale and the University of Massachusetts, Amherst, published in Science last week, reveals why removing federal protections for some non-permanent waters could have a huge effect on the nation’s rivers.
The study focused on short-lived streams, fueled by rain or snow, called “ephemeral streams,” which the Sackett decision now excludes from federal protection under the Act. When an ephemeral stream is not flowing with rainwater, lead author and recent Yale postdoc Craig Brinkerhoff explains, it may look something like a dry riverbed. That may not sound like much, but according to researchers, more than half of the water in the United States’ major rivers originates in this type of stream. About 51 percent of water flowing through the Mississippi River in a given year, for instance, traveled through an ephemeral stream first. In the Columbia, it’s 52 percent. And for much of the Rio Grande, it’s more than 90 percent.
“So often, when we talk about rivers, we think of this specific line on a map,” says Boyce Upholt, a journalist and author of the recent book The Great River: The Making and Unmaking of the Mississippi. “That’s a really limited way of thinking about rivers.”
If regulators wished to protect rivers from pollution, it might make sense to regulate pollutants in ephemeral streams, too. But since these riverbeds are sometimes dry, they don’t qualify as “permanent, standing, or continuously flowing.” That’s why the Sackett decision is so devastating: With the authority of the Clean Water Act, the federal government can regulate pollution directly entering rivers and lakes. But now it has little jurisdiction over pollution entering the occasionally wet riverbeds upstream from them.
Conservationists are especially alarmed by the decision because they say there’s plenty of evidence to show that the Clean Water Act works. In the more than 50 years since Congress passed the Act, waterways are less polluted with contaminants like fecal bacteria (often, from sewage) and “suspended solids” including dirt and sediment than before, according to one 2018 mega-analysis.
The Science paper, notably, addresses Sackett head-on. “Our findings show that ephemeral streams are likely a substantial pathway through which pollution may influence downstream water quality,” helping reveal “the consequences of limiting US federal jurisdiction” over these waterways, the authors write.
When Brinkerhoff first started looking into mapping ephemeral streams as a PhD student at UMass Amherst, the endeavor was purely scientific. While researchers have long known ephemeral streams were ubiquitous, the waterways’ importance downstream had been murky. “If these things are hydrologically connected [to rivers],” Brinkerhoff wanted to know, “and if they’re everywhere, how big of an influence do they actually have?”
Brinkerhoff and his colleagues built a massive, high-resolution map of them, using maps from the US Geological Survey and pre-existing global groundwater models. They calculated that an average of 59 percent of the country’s river systems, by length, are ephemeral. This largely tracked with previous global estimates, Brinkerhoff says, but most interesting to him was that the trend held in Eastern states, which are typically wetter and more humid than in the West. “We don’t normally think of these places as having a lot of ephemeral streams,” he says.
Discharge from “ephemeral streams” is higher in the West, but still notably significant in Eastern states too, the study found. Science
Some 55 percent of the water that flows through the country’s major river systems, the researchers found, likely touched an ephemeral stream first. (Brinkerhoff says more research is needed to understand how climate change will impact these water systems.)
In 2022, after the Supreme Court agreed to take up Sackett, Brinkerhoff and his team realized the research could have even bigger implications. At the heart of the case was a question over what type of waterways ought to count as “waters of the United States” and would be subject to regulation. Brinkerhoff teamed up with policy researchers at Yale who could help translate the significance of their data for policymakers tasked with responding to the Supreme Court’s decision.
But midway through the peer review process, Sackett came down. To comply with the decision, the Biden administration then issued new regulations excluding ephemeral streams from coverage under the Clean Water Act. In October, House Democrats introduced a bill to undo the changes made under Sackett, but “the odds are against it” passing in a divided Congress, says Douglas Kysar, an environmental law expert and professor at Yale Law School and an author on the Science paper.
Kysar hopes this study on ephemeral streams may help policymakers craft better water policy. “All of us would agree that we hope it gets into the hands of decision-makers and their staff,” he says.
But the pathway for science to help inform policy is getting “narrower,” he says, particularly after several Supreme Court cases this term undermined regulatory authority, including the decision to overturn a 40-year-old legal precedent called “Chevron deference” that instructed judges to defer to agencies when interpreting vague statutes. “We really have a court that is aggrandizing power for itself and the federal judiciary,” Kysar says.
“What we saw in Sackett was the court using abstract, detached, unscientific reasoning.”
He sees Sackett as a kind of preview for how federal judges might handle future environmental cases—on wetlands, ephemeral streams, or any other issue. “What we saw in Sackett was the court using abstract, detached, unscientific reasoning,” Kysar says. “It paid essentially no deference to the experts at the EPA, the hydrologists, all the people who actually understand how ecosystems work and how pollution operates.”
And now, after the court’s Chevron ruling this term, federal judges largely won’t need to defer to agency experts at all—let alone university scientists who study ephemeral streams.
In response to the Supreme Court’s momentous decision ruling that presidents are immune from criminal prosecution for “official” acts, Justices Sonia Sotomayor and Ketanji Brown Jackson issued blistering dissents. They blasted the reasoning of the six conservative justices who essentially created a new power for presidents. Each contended this decision poses a fundamental threat to American democracy and the rule of law.
This is how Sotomayor put it:
The President of the United States is the most powerful person in the country, and possibly the world. 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 dissenting coup to hold onto power? Immune. Takes a bribe in exchange for a pardon? Immune. Immune, immune, immune. Let the President violate the law, let him exploit the trappings of his office for personal gain, let him use his official power for evil ends. Because if he knew that he may one day face liability for breaking the law, he might not be as bold and fearless as we would like him to be. That is the majority’s message today.
Jackson made a similar and distressing point:
Thus, even a hypothetical President who admits to having ordered the assassinations of his political rivals or critics, or one who indisputably instigates an unsuccessful coup has a fair shot at getting immunity under the majority’s new Presidential accountability model.
They each argued that the conservatives, led by Chief Justice John Roberts, had elevated the presidency to something akin to royalty. Sotomayor wrote:
The relationship between the President and the people he serves has shifted irrevocably. In every use of official power, the President is now a king above the law.
Here are some of the most impassioned excerpts from their minority opinions:
Justice Sonia Sotomayor
Today’s decision to grant former Presidents criminal immunity reshapes the institution of the Presidency. It makes a mockery of the principle, foundational to our Constitution and system of Government, that no man is above the law. Relying on little more than its own misguided wisdom about the need for “bold and unhesitating action” by the President, the Court gives former President Trump all the immunity he asked for and more.
The Court now confronts a question it has never had to answer in the Nation’s history: Whether a former President enjoys immunity from federal criminal prosecution. The majority thinks he should, and so it invents an atextual, ahistorical, and unjustifiable immunity that puts the President above the law.
Whether described as presumptive or absolute, under the majority’s rule, a President’s use of any official power for any purpose, even the most corrupt, is immune from prosecution. That is just as bad as it sounds, and it is baseless. Finally, the majority declares that evidence concerning acts for which the President is immune can play no role in any criminal prosecution against him. . That holding, which will prevent the Government from using a President’s official acts to prove knowledge or intent in prosecuting private offenses, is nonsensical.
The historical evidence that exists on Presidential immunity from criminal prosecution cuts decisively against it. For instance, Alexander Hamilton wrote that former Presidents would be “liable to prosecution and punishment in the ordinary course of law.” For Hamilton, that was an important distinction between “the king of Great Britain,” who was “sacred and inviolable,” and the “President of the United States,” who “would be amenable to personal punishment and disgrace.”
This historical evidence reinforces that, from the very beginning, the presumption in this Nation has always been that no man is free to flout the criminal law. The majority fails to recognize or grapple with the lack of historical evidence for its new immunity. With nothing on its side of the ledger, the most the majority can do is claim that the historical evidence is a wash.
Our country’s history also points to an established understanding, shared by both Presidents and the Justice Department, that former Presidents are answerable to the criminal law for their official acts… Consider Watergate, for example. After the Watergate tapes revealed President Nixon’s misuse of official power to obstruct the Federal Bureau of Investigation’s investigation of the Watergate burglary, President Ford pardoned Nixon. Both Ford’s pardon and Nixon’s acceptance of the pardon necessarily “rested on the understanding that the former President faced potential criminal liability.”
Today’s Court, however, has replaced a presumption of equality before the law with a presumption that the President is above the law for all of his official acts.
Imagine a President states in an official speech that he intends to stop a political rival from passing legislation that he opposes, no matter what it takes to do so (official act). He then hires a private hitman to murder that political rival (unofficial act). Under the majority’s rule, the murder indictment could include no allegation of the President’s public admission of premeditated intent to support the mens rea of murder. That is a strange result, to say the least.
Looking beyond the fate of this particular prosecution, the long-term consequences of today’s decision are stark. The Court effectively creates a law-free zone around the President, upsetting the status quo that has existed since the Founding. This new official-acts immunity now “lies about like a loaded weapon” for any President that wishes to place his own interests, his own political survival, or his own financial gain, above the interests of the Nation.
The President of the United States is the most powerful person in the country, and possibly the world. 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 dissenting coup to hold onto power? Immune. Takes a bribe in exchange for a pardon? Immune. Immune, immune, immune. Let the President violate the law, let him exploit the trappings of his office for personal gain, let him use his official power for evil ends. Because if he knew that he may one day face liability for breaking the law, he might not be as bold and fearless as we would like him to be. That is the majority’s message today. Even if these nightmare scenarios never play out, and I pray they never do, the damage has been done. The relationship between the President and the people he serves has shifted irrevocably. In every use of official power, the President is now a king above the law.
Never in the history of our Republic has a President had reason to believe that he would be immune from criminal prosecution if he used the trappings of his office to violate the criminal law. Moving forward, however, all former Presidents will be cloaked in such immunity. If the occupant of that office misuses official power for personal gain, the criminal law that the rest of us must abide will not provide a backstop. With fear for our democracy, I dissent.
Justice Ketanji Brown Jackson
With that understanding of how our system of accountability for criminal acts ordinarily functions, it becomes much easier to see that the majority’s ruling in this case breaks new and dangerous ground. Departing from the traditional model of individual accountability, the majority has concocted something entirely different: a Presidential accountability model that creates immunity—an exemption from criminal law—applicable only to the most powerful official in our Government.
Thus, even a hypothetical President who admits to having ordered the assassinations of his political rivals or critics, or one who indisputably instigates an unsuccessful coup, has a fair shot at getting immunity under the majority’s new Presidential accountability model.
In the majority’s view, while all other citizens of the United States must do their jobs and live their lives within the confines of criminal prohibitions, the President cannot be made to do so; he must sometimes be exempt from the law’s dictates depending on the character of his conduct. Indeed, the majority holds that the President, unlike anyone else in our country, is comparatively free to engage in criminal acts in furtherance of his official duties.
[T]he Court has unilaterally altered the balance of power between the three coordinate branches of our Government as it relates to the Rule of Law, aggrandizing power in the Judiciary and the Executive, to the detriment of Congress. Second, the majority’s new Presidential accountability model undermines the constraints of the law as a deterrent for future Presidents who might otherwise abuse their power, to the detriment of us all.
After today’s ruling, the President must still “take Care that the Laws be faithfully executed,” yet, when acting in his official capacity, he has no obligation to follow those same laws himself.
If the structural consequences of today’s paradigm shift mark a step in the wrong direction, then the practical consequences are a five-alarm fire that threatens to consume democratic self-governance and the normal operations of our Government. The majority shoos away this possibility. (accusing the dissents of “strik[ing] a tone of chilling doom that is wholly disproportionate to what the Court actually does today”). But Justice Sotomayor makes this point plain, and I will not belabor it.
Having now cast the shadow of doubt over when—if ever—a former President will be subject to criminal liability for any criminal conduct he engages in while on duty, the majority incentivizes all future Presidents to cross the line of criminality while in office, knowing that unless they act “manifestly or palpably beyond [their] authority,” ante, they will be presumed above prosecution and punishment alike.
From this day forward, Presidents of tomorrow will be free to exercise the Commander-in-Chief powers, the foreign-affairs powers, and all the vast law enforcement powers enshrined in Article II however they please—including in ways that Congress has deemed criminal and that have potentially grave consequences for the rights and liberties of Americans.
[T]he seeds of absolute power for Presidents have been planted. And, without a doubt, absolute power corrupts absolutely. “If one man can be allowed to determine for himself what is law, every man can. That means first chaos, then tyranny.” Likewise, “[i]f the Government becomes a lawbreaker, it breeds contempt for law; it invites every man to become a law unto himself; it invites anarchy.” I worry that, after today’s ruling, our Nation will reap what this Court has sown.
Stated simply: The Court has now declared for the first time in history that the most powerful official in the United States can (under circumstances yet to be fully determined) become a law unto himself. As we enter this uncharted territory, the People, in their wisdom, will need to remain ever attentive, consistently fulfilling their established role in our constitutional democracy, and thus collectively serving as the ultimate safeguard against any chaos spawned by this Court’s decision.
The majority of my colleagues seems to have put their trust in our Court’s ability to prevent Presidents from becoming Kings through case-by-case application of the indeterminate standards of their new Presidential accountability paradigm. I fear that they are wrong. But, for all oursakes, I hope that they are right. In the meantime, because the risks (and power) the Court has now assumed are intolerable, unwarranted, and plainly antithetical to bedrock constitutional norms, I dissent.
The Supreme Court on Monday ruled that presidents have broad criminal immunity for official acts, effectively placing the presidency beyond the reach of criminal law for the first time in the country’s history. The 6-3 decision along ideological lines sends the federal case over Donald Trump’s attempts to overturn the 2020 election back to the district court to determine whether Trump’s actions fall outside the court’s sweeping new grant of immunity—but the effects will stretch far beyond Trump’s possible trial by fundamentally changing the nature of the presidency and, by extension, American democracy.
In an opinion by Chief Justice John Roberts, the Republican-appointed justices held that presidents have immunity for official acts. The opinion left to another day whether that immunity is absolute, or whether it can be pierced in some circumstances. Despite the possibility for exceptions, the decision is sweeping and radical.
“The ruling is a bigger win for Trump than many of us had been expecting.”
“Today’s decision to grant former Presidents criminal immunity reshapes the institution of the Presidency,” Justice Sonia Sotomayor wrote in her dissent, which was joined by Justices Elena Kagan and Ketanji Brown Jackson. “It makes a mockery of the principle, foundational to our Constitution and system of Government, that no man is above the law.”
The case arose out of Special Counsel Jack Smith’s criminal charges against Trump for trying to subvert the election. As a defense, Trump argued that he is immune from prosecution for official acts made while in the White House—a sweeping theory without a basis in the Constitution. The framers, who were adamant that the presidency not resemble the monarchy they had just fought a revolutionary war to escape, purposefully left presidential immunity out of the Constitution. They were explicit that presidents would not be above the law, an assumption that had continued until today: Indeed, President Gerald Ford famously pardoned former President Richard Nixon—a result of the understanding that without doing so, Nixon might face criminal charges.
Before the case reached the Supreme Court, the district court and court of appeals had both rebuffed Trump’s claims. But at oral argument before the high court, several Republican-appointed justices were preoccupied with the idea that ex-presidents would be under siege from prosecutors waging backward-looking, politically motivated cases unless the court granted presidents new levels of immunity. Monday’s decision relies on a related idea that presidents need immunity in order to effectively govern: the framers, the majority argued, envisioned a vigorous executive and immunity would ensure the office’s strength.
“Immunity is required to safeguard the independence and effective functioning of the Executive Branch, and to enable the President to carry out his constitutional duties without undue caution,” Roberts wrote.
In her dissent, Sotomayor argued that majority goes so far as to create not a robust executive but, essentially, a monarch. “In every use of official power, the President is now a king above the law,” she wrote. In a separate dissent, Jackson warned that the gift of immunity would not engender benevolence: “The seeds of absolute power for Presidents have been planted,” she wrote. “And, without a doubt, absolute power corrupts absolutely.”
The decision will not only significantly delay the special counsel’s trial against Trump for election subversion but likely result in most charges being dropped. Because the decision leaves the door open for prosecution for unofficial acts, the question is whether any of Smith’s charges relate to unprotected conduct. In a concurrence, Justice Amy Coney Barrett wrote that she believed at least one charge relating to the scheme to create fake slates of electors should proceed to trial. As to other charges, Roberts ruled that immunity applies “unless the Government can show that applying a criminal prohibition to that act would pose no ‘dangers of intrusion on the authority and functions of the Executive Branch.'” That is a high bar—and it’s unclear what criminal prosecution, if any, might clear it.
“Just so everyone understands the radical import of the decision: The Court holds that even when the POTUS clearly—or even *concededly*—abuses his or her office to violate a valid federal law, that POTUS cannot be tried, even after leaving office,” constitutional law expert Marty Lederman wrote online.
The opinion further insulates the president by finding that a president’s official and protected conduct, even when criminal, cannot be introduced as evidence at a trial taking place for prosecutable conduct. The result is that even where this sweeping immunity does not touch, a finding of guilt will be made more difficult. (Barrett did not join this part of the majority’s opinion, writing that “The Constitution does not require blinding juries to the circumstances surrounding conduct for which Presidents can be held liable.”)
“This is a big part of why the ruling is a bigger win for Trump than many of us had been expecting,” Georgetown Law professor Steve Vladeck explained. “It’s not just which acts will be immune; it’s how this will hamstring efforts to prosecute even those acts for which there *isn’t* immunity.”
The justices could have decided this matter quickly and narrowly, or declined to take it up all together, and allowed a trial to proceed. Instead, at every stage of the case, the justices indulged Trump’s attempts to slow-walk proceedings. His immunity defense was always as much about pushing the trial date after the election—which would help him win the election and eliminate the case entirely—as it was about mounting a sound legal defense. But the biggest gift to Trump was to give him a nearly complete victory.
The GOP-appointed justices have now helped Trump in two ways. First, he will escape trial for the foreseeable future, as lower courts wrestle with applying Monday’s decision. Second, they have granted the presidency new powers that Trump can take advantage of if he returns to power.
Trump has already made his intentions clear: He will weaponize the Justice Department to prosecute his political enemies. “I will appoint a real special prosecutor to go after the most corrupt president in the history of the United States of America, Joe Biden, and the entire Biden crime family,” Trump promised last year. Ironically, Trump is promising to bring about the very destruction of DOJ independence that several justices claimed they were worried about during oral argument.
Instead of protecting the president from bogus prosecution, they created more incentives for the president himself to launch such prosecutions—and to ignore virtually every other law as well.
“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,” Sotomayor warned. “With fear for our democracy, I dissent.”
Login
