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      O’Connor’s Most Vital Work Was After She Stepped Down

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      You can tell a lot about a person by what he or she regrets. This holds especially for Supreme Court justices, whose decisions can, with a single vote, upend individual lives and alter the course of history. Justice Lewis F. Powell Jr. said he probably made a mistake in upholding a law criminalizing gay sex; Justice Harry Blackmun was sorry he ever voted to impose the death penalty.Justice Sandra Day O’Connor, who died on Friday at the age of 93, expressed regret publicly over one vote she cast: in the case of Republican Party of Minnesota v. White, a 2002 ruling that judicial candidates could not be prohibited from expressing their views on disputed legal and political issues. Minnesota, like many states that elect judges, had imposed such a ban in order to preserve the appearance of judicial impartiality. The court rejected the ban for violating the First Amendment. The decision was 5 to 4, with Justice O’Connor joining the majority.The court’s ruling led to an explosion of partisan spending on judicial elections around the country and judicial candidates freely spouting their predetermined views on the very issues they would be entrusted to decide if elected.There are many ways to remember Justice O’Connor — as the first woman on the Supreme Court, as one of the justices who saved Roe v. Wade 30 years ago, as the author of the landmark decision protecting affirmative action in 2003. As impressive as those achievements were, they have mostly been surpassed or reversed. What stands out for me is what she said and did after leaving the court.Her response to the 2002 ruling would define most of her last years and underline her commitment to American democracy not just in the halls of justice but also on the ground. It was as if she could see what was coming as the judiciary grew ever more politicized, and she devoted much of her postcourt public life to combating that trend.In March 2006, only weeks after she stepped down, she gave a speech calling out Republican lawmakers for attacking the judiciary. She highlighted the comment by Senator John Cornyn of Texas that deadly violence against judges might be related to their rulings.We are having trouble retrieving the article content.Please enable JavaScript in your browser settings.Thank you for your patience while we verify access. If you are in Reader mode please exit and log into your Times account, or subscribe for all of The Times.Thank you for your patience while we verify access.Already a subscriber?  More

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      Sandra Day O’Connor’s Legacy Was Undermined by Court’s Rightward Shift

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      Since her retirement in 2006, the court has dismantled her key rulings on abortion, affirmative action and campaign finance.Justice Sandra Day O’Connor, who died Friday at 93, was the sort of figure once familiar in American political and judicial life: a moderate Republican ready to look for compromise and common ground.That led her to vote to uphold abortion rights, affirmative action and campaign finance regulations. Since she retired in 2006, replaced by the far more conservative Justice Samuel A. Alito Jr., the Supreme Court has dismantled large parts of her legacy.That is nowhere more apparent than in abortion rights.Justice O’Connor joined the controlling opinion in Planned Parenthood v. Casey, the 1992 decision that, to the surprise of many, reaffirmed the core of the constitutional right to abortion established in 1973 in Roe v. Wade.To overrule Roe “under fire in the absence of the most compelling reason to re-examine a watershed decision,” she wrote in a joint opinion with Justices Anthony M. Kennedy and David H. Souter, “would subvert the court’s legitimacy beyond any serious question.”Last year, the court did overrule Roe, casting aside Justice O’Connor’s concern for precedent and the court’s public standing. In his majority opinion in Dobbs v. Jackson Women’s Health Organization, Justice Alito wrote that Roe and Casey had “enflamed debate and deepened division.”Justice O’Connor also wrote the majority opinion in Grutter v. Bollinger, a 2003 decision upholding race-conscious admissions decisions at public universities, suggesting that they would not longer be needed in a quarter-century. In striking down affirmative action programs in higher education in June, the Supreme Court beat her deadline by five years.Chief Justice John G. Roberts Jr., writing for the majority, said the timetable was unrealistic and unprincipled.“The 25-year mark articulated in Grutter, however, reflected only that court’s view that race-based preferences would, by 2028, be unnecessary to ensure a requisite level of racial diversity on college campuses,” he wrote. “That expectation was oversold.”Justice O’Connor was also an author of a key campaign finance opinion, McConnell v. Federal Election Commission in 2003. A few years after Justice Alito replaced her, the Supreme Court, by a 5-to-4 vote in 2010, overruled a central portion of that decision in the Citizens United case.A few days later, at a law school conference, Justice O’Connor reflected on the development.“Gosh,” she said, “I step away for a couple of years and there’s no telling what’s going to happen.”President Ronald Reagan nominated Justice O’Connor in 1981, making good on his campaign trail promise to name the first female Supreme Court justice. At the time she was a judge on a state appeals court, not a typical launchpad to the Supreme Court in the modern era, when it has been dominated by former federal appeals court judges.But her origin story was a reflection of her strengths, drawing on a range of experience largely missing among the current justices. Raised and educated in the West, she served in all three branches of Arizona’s government, including as a government lawyer, majority leader of the State Senate, and a trial judge.Her background informed her decisions, which were sensitive to states’ rights and often deferred to the judgments of the other branches of the federal government. Her rulings could be pragmatic and narrow, and her critics said she engaged in split-the-difference jurisprudence.But some of her commitments were unyielding, said Justice Ruth Bader Ginsburg, the second woman to serve on the Supreme Court. “As often as Justice O’Connor and I have disagreed, because she is truly a Republican from Arizona, we were together in all the gender discrimination cases,” Justice Ginsburg, who died in 2020, told USA Today in 2009.What is beyond question is that she was exceptionally powerful. She held the crucial vote in many of the court’s most polarizing cases, and her vision shaped American life for her quarter century on the court. Political scientists stood in awe at the power she wielded.“On virtually all conceptual and empirical definitions, O’Connor is the court’s center — the median, the key, the critical and the swing justice,” Andrew D. Martin, Kevin M. Quinn and Lee Epstein and two colleagues wrote in a study published in 2005 in The North Carolina Law Review shortly before Justice O’Connor’s retirement.In 2018, in a letter announcing her retreat from public life as she battled dementia, Justice O’Connor called for a renewed commitment to nonpartisan values, one that would require “putting country and the common good above party and self-interest, and holding our key governmental institutions accountable.”At the time, Chief Justice Roberts, who had joined the court just months before Justice O’Connor left it, described her place in history.“She broke down barriers for women in the legal profession to the betterment of that profession and the country as a whole,” he wrote. “She serves as a role model not only for girls and women, but for all those committed to equal justice under law.”On Friday, the chief justice added: “We at the Supreme Court mourn the loss of a beloved colleague, a fiercely independent defender of the rule of law, and an eloquent advocate for civics education. And we celebrate her enduring legacy as a true public servant and patriot.”That legacy is striking and real. But in the less than two decades since Justice O’Connor’s retirement, a central aspect of that legacy — her jurisprudence — has proved vulnerable. More

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      Why Judges in the Trump Jan. 6 Trial Need a Rocket Docket

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      If Donald Trump is the Republican nominee for president in 2024, it’s now clear he will likely still have criminal indictments hanging over his head on Election Day. It’s possible that his criminal liability for the events leading up to the Jan. 6 riot at the Capitol will remain unresolved.If that happens, voters will go to the polls without knowing whether one of the candidates in the current election is criminally responsible for trying to overturn the last one and subvert the will of the voters.Having an election under such circumstances is unthinkable. As Richard Nixon might have put it, voters have a right to know whether their candidate is a crook. It can be avoided, but it’s going to require the judiciary to take some extraordinary steps. And whether it happens will be decided by a relative handful of federal jurists — including a number appointed by Mr. Trump himself.Of the four criminal cases pending against Mr. Trump, the federal election interference prosecution in Washington currently has the best chance of going to trial before the 2024 presidential vote. The trial date is set for March 4. The Federal District Court judge overseeing the case, Tanya Chutkan, has been doing an admirable job of keeping it on track. But legal developments that are out of her hands now threaten to derail that schedule: Expected pretrial appeals could push the trial date past the November election.Mr. Trump has moved to dismiss the case on various grounds, including claims of presidential immunity and violation of the double jeopardy clause. For most pretrial motions, if the motion is denied, the defendant must wait to raise the issue again on appeal following conviction, if there is one.But these two motions fall into a narrow category of claims that usually entitle a defendant to an interlocutory appeal — in this case, an appeal before trial. Because these are claims of a constitutional right not to be tried at all, a post-conviction appeal is not an adequate remedy. By that time, the right has already been lost. A defendant is allowed to appeal such claims before the government may put him on trial.If, as expected, Judge Chutkan denies these motions, Mr. Trump will have a right to appeal to the U.S. Court of Appeals for the District of Columbia Circuit. (I expect the appeals will focus primarily on the immunity claim; the double jeopardy argument seems frivolous.) If he loses before a three-judge panel there, he can ask the full court to review that decision. If that fails, he can ask the Supreme Court to review the case. While all that goes on, the trial cannot proceed.In a typical case, an appeals process like this could easily take a year or more. In the first prosecution of Senator Bob Menendez of New Jersey, appeals over his claims of constitutional immunity under the speech or debate clause delayed the trial for about 18 months, even with the Supreme Court declining to take the case.In the Trump case, delays like that would push the trial well past November. If Mr. Trump wins the election, he would be able to shut down the two federal prosecutions and could probably have the state prosecutions at least postponed while he is in office.This appears to be the primary defense strategy in Mr. Trump’s criminal cases: delay as much as possible to put off any trials until after next November, when Mr. Trump hopes to be in a position to put an end to his legal problems.Having an election with Mr. Trump on the ballot and his criminal liability for Jan. 6 unresolved could spell disaster for the rule of law. It’s also completely avoidable if the courts — and in particularly, the judges who control the schedule — are willing to do what’s necessary: put the resolution of these motions on a fast track to ensure the case can go to trial as scheduled.Typically, the judicial and political calendars do not intersect. We expect judges to ignore political considerations and campaign schedules when making their decisions. But in times of political crisis, the federal judiciary cannot simply turn a blind eye. It must respond in a way that will enable the political system to address that crisis in a timely manner. This is one of those times.This is not a proposal for the courts to act in a partisan fashion. We don’t know whether Mr. Trump’s claim of immunity will be upheld. If it is rejected, we don’t know what the result of the trial will be. The outcome of the legal process is not the point. The point is that the country deserves to know that outcome before it chooses the next leader of the free world.There is precedent for this kind of judicial rapid response. During Watergate, the appeal of the order for President Nixon to turn over the subpoenaed White House tapes was resolved in only about two months — and that included arguments before and an opinion by the Supreme Court. During the 2000 presidential election, that court heard arguments in Bush v. Gore on Dec. 11 and the very next day issued its opinion shutting down the vote recount in Florida. The usually sedate appellate courts can move with dispatch when they want to.This case requires similar urgency. The initial appeals here could be easily heard and decided within a few weeks. Whether to grant a rehearing before the full Court of Appeals is discretionary, but if it does grant such a hearing, it needs to be equally speedy.After the District of Columbia Circuit rules, the losing party will seek Supreme Court review. If Mr. Trump loses the motions, my own hunch is that the Supreme Court may not take the case. In past disputes the justices have not shown much willingness to go out of their way to help Mr. Trump, and the last thing this embattled court needs right now is to wade into another controversy. But if the court does feel the need to weigh in on these novel constitutional issues, it also needs to move very swiftly.There’s no reason the entire process, including Supreme Court review, could not be completed by January. That would allow the trial date to stay on track if the motions are denied.There’s no concern about Mr. Trump being prejudiced by this relatively breakneck pace. He has vast financial and legal resources. The issues are already fully briefed before Judge Chutkan. The issues are novel — because nothing like Jan. 6 has happened before — but the questions are not extraordinarily complex; we need a rocket docket, but this is not rocket science.Some might argue that voters already have enough information about Mr. Trump’s actions and Jan. 6. But a criminal trial is different. In the aftermath of the 2020 election, Mr. Trump and his allies made repeated claims of voter fraud and a “rigged” election. Those claims uniformly failed when tested in court by the adversary system, where actual evidence is required and witnesses testify under oath. In an age of disinformation and fake news, courts remain the arena where facts still matter.Some voters will not accept the verdict of a criminal trial, no matter what the outcome. But for many it could be a critical data point when casting their ballot.It’s already not possible to have the trial completed before most of the presidential primaries; Super Tuesday, with over a dozen primaries in states and territories across the country, is March 5. Mr. Trump could have the nomination sewn up by the time the trial is over. But the trial could easily be concluded before the Republican convention in July, so the delegates could decide whether they really want to nominate a felon (if that is the outcome) to lead the country.A functioning democracy requires an informed electorate. It’s hard to imagine a more important piece of information for voters to have next November than whether a candidate is criminally culpable for trying to overturn the last presidential election.Our legal system can resolve this case expeditiously while still protecting the defendant’s rights, but the judiciary will have to step up and do its part to protect democracy.Randall. D. Eliason is the former chief of the fraud and public corruption section at the U.S. Attorney’s Office for the District of Columbia and teaches white-collar criminal law at George Washington University Law School. He blogs at Sidebarsblog.com.The Times is committed to publishing a diversity of letters to the editor. We’d like to hear what you think about this or any of our articles. Here are some tips. And here’s our email: letters@nytimes.com.Follow The New York Times Opinion section on Facebook, Twitter (@NYTopinion) and Instagram. More

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      Overturning Roe Changed Everything. Overturning Affirmative Action Did Not.

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      What do the strikingly different public responses to two recent Supreme Court rulings, one on abortion, the other on affirmative action, suggest about the future prospects for the liberal agenda?Last year’s Dobbs decision — overturning the longstanding precedent set by Roe v. Wade in 1973 — angered both moderate and liberal voters, providing crucial momentum for Democratic candidates in the 2022 midterm elections, as well as in elections earlier this month. The hostile reaction to Dobbs appears certain to be a key factor in 2024.Since Dobbs, there have been seven abortion referendums, including in red states like Ohio, Kansas, Kentucky and Montana. Abortion rights won every time.In contrast, the Supreme Court decision in June that ended race-based affirmative action in college admissions provoked a more modest outcry, and it played little, if any, role on Election Day 2023. As public interest fades, so too do the headlines and media attention generally.There have been no referendums on affirmative action since the June decision, Students for Fair Admissions, Inc. v. President & Fellows of Harvard College. Six states held referendums on affirmative action before that ruling was issued, and five voted to prohibit it, including Michigan, Washington and California (twice). Colorado, the lone exception, voted in favor of affirmative action in 2008.Do the dissimilar responses to the court decisions ending two key components of the liberal agenda, as it was originally conceived in the 1960s and 1970s, suggest that one of them — the granting of preferences to minorities in order to level differences in admissions outcomes — has run its course?On the surface, the answer to that question is straightforward: Majorities of American voters support racial equality as a goal, but they oppose targets or quotas that grant preferential treatment to any specific group.In an email, Neil Malhotra, a political economist at Stanford — one of the scholars who, on an ongoing basis, oversees polling on Supreme Court decisions for The New York Times — pointed out that “race-based affirmative action is extremely unpopular. Sixty-nine percent of the public agreed with the court’s decision in Students for Fair Admissions v. Harvard, including 58 percent of Democrats.”On the other hand, Malhotra noted, “the majority of Americans did not want Roe overturned.”The July 1-5 Economist/YouGov poll posed questions that go directly to the question of affirmative action in higher education.“Do you think colleges should or should not be allowed to consider an applicant’s race, among other factors, when making decisions on admissions?”The answer: 25 percent said they should allow racial preferences; 64 percent said they should not.“Do you approve or disapprove of the Supreme Court’s decision on affirmative action, which ruled that colleges are not allowed to consider an applicant’s race when making decisions on admissions?”Fifty-nine percent approved of the decision, including 46 percent who strongly approved. Twenty-seven percent disapproved, including 18 percent who strongly disapproved.I asked William Galston, a senior fellow at Brookings, about the significance of the differing reactions to the abortion and affirmative action decisions, and he referred me to his July 2023 essay, “A Surprisingly Muted Reaction to the Supreme Court’s Decision on Affirmative Action”:In a marked contrast to last year’s Dobbs decision by the Supreme Court overturning Roe v. Wade, the response to its recent decision prohibiting the use of race as a factor in college admissions has been remarkably muted. The overall reason is clear: while voters wanted to preserve access to abortion by a margin of roughly 20 percentage points, they were willing by the same margin to accept the end of affirmative action.“To the surprise of many observers,” Galston writes, citing poll data, Black Americans “supported the court by 44 percent to 36 percent.”Key groups of swing voters also backed the court’s decision by wide margins, Galston goes on to say: “Moderates by 56 percent to 23 percent, independents by 57 percent to 24 percent, and suburban voters, a key battleground in contemporary elections, by 59 percent to 30 percent.”Sanford V. Levinson, a law professor at the University of Texas-Austin, wrote me by email thatThere has always been a certain ambivalence on the part of many liberals regarding the actual implementation of affirmative action. I thought that it would ultimately be done in by the sheer collapse of the categories such as “white” or “Black,” and the impossibility of clearly defining who counts as “Hispanic” or “Asian.”In contrast, Levinson continued,Abortion has become more truly polarized as an issue, especially as the “pro-life” contingent has revealed its strong desire to ban all abortions. Moreover, it’s become immediately and obviously clear that the consequences of Dobbs are absolutely horrendous for many women in Texas, say, and that the “pro-life” contingent simply doesn’t seem to care about these consequences for actual people.I asked Richard Pildes, a professor of constitutional law at N.Y.U., about the divergent responses to the two decisions, and he emailed his reply:There are two reasons the public and political reaction differs so dramatically between the two decisions. The first is that in public opinion polling, affirmative action has always had significantly less than majority support.Pildes pointed out thatin perhaps the most liberal state in the country, California, 57 percent of voters in 2020 voted to keep in place the state’s ban on affirmative action, even as Biden won the state overwhelmingly. Popular opinion on abortion runs the other way: a majority of the country supports the basic right of access to abortion, and we see strong majorities even in red states voting to support that right, as in recent votes in Ohio and Kansas.Pildes’s second reason involves the advance preparation of the public for the decisions. In the case of affirmative action in college admissions,It was widely expected the Supreme Court was going to ban it. That outcome did not come as a surprise; it had long been discounted into the assumptions of those who follow these issues closely.In the case of the Dobbs, according to Pildes, “there was far more uncertainty in advance, even though the expectation was that the court would uphold Mississippi’s ban on most abortions after 15 weeks.”While the court majority might have decided the case “on narrow grounds, without overruling Roe,” Pildes wrote, it took “the far more extreme path of overruling Roe altogether. That came as a stunning shock to many people and it was the first time the court had taken away a personal constitutional right.”Nicholas Wu reported last month in Politico (in “Why Dems Aren’t Campaigning on Affirmative Action”) that some of the strongest proponents of affirmative action in the House do not see campaigning against the court decision as an effective strategy.Representative Mark Takano, a California Democrat who believes affirmative action helped get him into Harvard, told Wu, “I don’t see it as a rallying point for Democrats.”Representative Bobby Scott, a Virginia Democrat and the ranking Democrat on the Committee on Education and Workforce, told Wu, “This is going to cause some heartburn, but we need to campaign on the fact that we are opening opportunities to everybody, and we’ll do everything we can to maintain opportunities.”“It’s difficult,” Scott added, “to bring back a strategy that the Supreme Court has directly ruled as unconstitutional.”Nicholas Dias, a doctoral candidate in political science at the University of Pennsylvania, responded by email to my inquiry by noting that his “read of the existing data is that Americans care more about equality of opportunity than equality of outcome.”Dias conducted a study asking Americans how they prioritize three social goals in setting policies concerning wealth: “ensuring wealth is determined by effort (i.e., deservingness); providing for basic needs (sufficiency); and ensuring wealth equality.”He found that Republicans overwhelmingly give top priority to ensuring that wealth is determined by effort, at 70.5 percent, while Democrats give top priority, at 51.2 percent, to ensuring that everyone’s basic needs are met.Dias noted that very few Democrats, Republicans or independents gave wealth equality top priority.Dias sent me a 2021 paper, “Desert and Redistribution: Justice as a Remedy for, and Cause of, Economic Inequality,” in which Jacob S. Bower-Bir, a political scientist affiliated with Indiana University, makes the case that:People tolerate grave inequalities if they think those inequalities are deserved. Indeed, if outcomes appear deserved, altering them constitutes an unjust act. Moreover, people who assign a significant role to personal responsibility in their definitions of economic desert oppose large-scale redistribution policies because government intervention makes it harder for people to (by their definition) deserve their economic station.In short, Bower-Bir argues, “people must perceive inequality as undeserved to motivate a policy response, and the means of combating inequality must not undermine desert.”In that context, Dias wrote in his email, it would be inaccurate to say thatpolicies designed to benefit minority constituencies have run their course. There’s plenty of evidence that members of these constituencies lack economic opportunities or cannot meet their needs. However, I think many Americans need to be convinced of that.In a further elaboration of the affirmative action debate, three sociologists, Leslie McCall, Derek Burk and Marie Laperrière, and Jennifer Richeson, a psychologist at Yale, discuss public perceptions of inequality in their 2017 paper “Exposure to Rising Inequality Shapes Americans’ Opportunity Beliefs and Policy Support”:Research across the social sciences repeatedly concludes that Americans are largely unconcerned about it. Considerable research has documented, for instance, the important role of psychological processes, such as system justification and American dream ideology, in engendering Americans’ relative insensitivity to economic inequality.Challenging that research, the four scholars contend that when “American adults were exposed to information about rising economic inequality in the United States,” they demonstrated increased “skepticism regarding the opportunity structure in society. Exposure to rising economic inequality reliably increased beliefs about the importance of structural factors in getting ahead.” Receiving information on inequality “also increased support for government redistribution, as well as for business actors (i.e., major companies) to enhance economic opportunities in the labor market.”The intricacies don’t end there.In their April 2017 paper, “Why People Prefer Unequal Societies,” three professors of psychology, Christina Starmans, Mark Sheskin and Paul Bloom, write thatThere is immense concern about economic inequality, both among the scholarly community and in the general public, and many insist that equality is an important social goal. However, when people are asked about the ideal distribution of wealth in their country, they actually prefer unequal societies.How can these two seemingly contradictory findings be resolved?The authors’ answer:These two phenomena can be reconciled by noticing that, despite appearances to the contrary, there is no evidence that people are bothered by economic inequality itself. Rather, they are bothered by something that is often confounded with inequality: economic unfairness.Human beings, Starmans, Sheskin and Bloom write, “naturally favor fair distributions, not equal ones, and that when fairness and equality clash, people prefer fair inequality over unfair equality.”My interest in the subdued political response to the court’s affirmative action decision was prompted by a 2021 book, “The Dynamics of Public Opinion,” by four political scientists, Mary Layton Atkinson, James A. Stimson and Frank R. Baumgartner, all of the University of North Carolina, and K. Elizabeth Coggins of Colorado College.The four scholars argue that there are three types of issues. The first two types are partisan issues (safety net spending, taxation, gun rights etc.) and nonpartisan issues, like the space program. Public opinion does not change much over time on these two types of issues, they write: “Aggregate opinion moves up and down (or, left and right) but fifty years later remains roughly where it started.”Such stability is not the case with the third category:These are social transformations affecting society in powerful ways, literally shifting the norms of cultural acceptability of a given issue position. These can be so powerful that they overwhelm the influence of any short-term partisan differences, driving substantial shifts in public opinion over time, all in the same direction.Two factors drive these transformations:Large swaths of the American public progressively adopting new, pro-equality positions on the issue, and the generational replacement of individuals with once-widespread but no-longer-majority anti-equality opinions — with younger individuals coming-of-age during a different time, and reflecting more progressive positions on these cultural shift issues.Opinion on these mega issues, Atkinson and her co-authors argue, has been moving steadily leftward. “The overall trend is unmistakable,” they write: “The public becomes more liberal on these rights issues over time,” in what Atkinson and her co-authors describe as the shifting “equality mood.”While trends like these would seem to lead to support for affirmative action, that is not the case. “We cannot treat belief in equality as a normative value as interchangeable with a pro-equality policy preference,” Atkinson and her co-authors write:This is particularly true because many pro-equality policies emphasize equality of outcomes rather than equality of opportunity. And while equality of opportunity is the touchstone of a liberal society (i.e., all Americans are entitled to the pursuit of life, liberty and happiness), the right to equality of outcomes has not been equally embraced by Americans. Once equality of opportunity is significantly advanced, or de jure equality is established, public support for further government action focused on equalizing outcomes may not exist, or at least wanes significantly.In other words, there has been a steady leftward movement on issues of equality when they are described as abstract principles, but much less so when the equality agenda is translated into specific policies, like busing or affirmative action.Atkinson and her co-authors point specifically to growing support for women’s equality in both theory and in practice, reporting on an analysis of four questions posed by the General Social Survey from the mid-1970s to 2004:When asked whether women should let men run the country and whether wives should put their husbands’ careers first, the policy responses look nearly identical to women’s ‘equality mood.’ The series trend in the liberal direction over time and reach a level of approximately 80 percent liberal responses by 2004.But when asked whether it is better for women to tend the home and for men to work, and whether preschool children suffer if their mothers work, the responses are far less liberal and the slopes of the lines are less steep. While responses to these questions trend in the liberal direction during the 1970s and 1980s, by the mid-1990s the series flattens out with liberalism holding between 50 and 60 percent.I asked Stimson to elaborate on this, and he emailed in reply:We have long known that the mass public does not connect problem and solution in the way that policy analysts do. Thus, for example, most people would sincerely like to see a higher level of racial integration in schools, but the idea of putting their kids on a bus to achieve that objective is flatly rejected. I used to see that as hypocrisy. But I no longer do. I think the real issue is that they just do not make the connection between problem and solution. That is why affirmative action has such a troubled history. People are quite capable of supporting policy goals (e.g., racial balance in higher education) and rejecting the means.Where does that leave the nation? Galston, in his Brooking essay, provided an answer:In sum, the country’s half-century experiment with affirmative action failed to persuade a majority of Americans — or even a majority of those whom the policy was intended to benefit — that it was effective and appropriate. University employers — indeed the entire country — must now decide what to do next to advance the cause of equal opportunity for all, one of the nation’s most honored but never achieved principles.The Times is committed to publishing a diversity of letters to the editor. We’d like to hear what you think about this or any of our articles. Here are some tips. And here’s our email: letters@nytimes.com.Follow The New York Times Opinion section on Facebook, Twitter (@NYTopinion) and Instagram. More

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      Supreme Court Wary of Trademark for ‘Trump Too Small’

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      In earlier cases, the justices struck down provisions of the trademark law on First Amendment grounds. But the one at issue here seemed likely to survive.The Supreme Court, which has in recent years struck down parts of the trademark law that prohibited registration of immoral, scandalous and disparaging marks, did not appear ready on Wednesday to do the same thing in a case concerning a California lawyer’s attempt to trademark the phrase “Trump too small.”The provision at issue in the case forbids the registration of trademarks “identifying a particular living individual except by his written consent.”There seemed to be consensus among the justices that the provision was different from the ones the court had rejected in 2017 and 2019. Some said that it did not discriminate based on viewpoint, which the First Amendment generally does not allow the government to do. Others added that there is a long history of allowing people to control the use of their names in commercial settings.Some justices pressed a more fundamental objection. Noting that the lawyer, Steve Elster, could use the phrase on merchandise without trademarking it, they wondered whether the First Amendment applied at all.“The question is, is this an infringement on speech?” Justice Sonia Sotomayor said. “And the answer is no.”The contested phrase drew on a taunt from Senator Marco Rubio, Republican of Florida, during the 2016 presidential campaign. Mr. Rubio said Donald J. Trump had “small hands,” adding, “And you know what they say about guys with small hands.”Mr. Elster, in his trademark application, said that he wanted to convey the message that “some features of President Trump and his policies are diminutive.” He sought to use the phrase on the front of T-shirts with a list of Mr. Trump’s positions on the back. For instance: “Small on civil rights.”A unanimous three-judge panel of the U.S. Court of Appeals for the Federal Circuit ruled that the First Amendment required the trademark office to allow the registration.“As a result of the president’s status as a public official, and because Elster’s mark communicates his disagreement with and criticism of the then-president’s approach to governance, the government has no interest in disadvantaging Elster’s speech,” Judge Timothy B. Dyk wrote for the court.The Biden administration appealed the Federal Circuit’s ruling to the Supreme Court.Malcolm L. Stewart, a deputy solicitor general who was presenting his 100th Supreme Court argument, said that granting Mr. Elster a trademark would allow him to forbid others from using it, diminishing the amount of the political speech the First Amendment is meant to protect.Chief Justice John G. Roberts echoed the point. “Particularly in an area of political expression,” he said, “that really cuts off a lot of expression other people might regard as important infringement on their First Amendment rights.”Justice Elena Kagan asked Jonathan E. Taylor, a lawyer for Mr. Elster, to identify a precedent in which the court had struck down a law conferring a government benefit like trademark registration that did not involve viewpoint discrimination.He replied, “I can’t point you to a case that’s precisely on all fours.”Justice Kagan responded that she could cite many decisions supporting the opposite proposition, naming a half-dozen.Commentary on the size of Mr. Trump’s hands has a long history. In the 1980s, the satirical magazine Spy needled Mr. Trump, then a New York City real estate developer, with the recurring epithet “short-fingered vulgarian.”In 2016, during a presidential debate, Mr. Trump addressed Mr. Rubio’s critique.“Look at those hands, are they small hands?” Mr. Trump said, raising them. “And, he referred to my hands — ‘if they’re small, something else must be small.’ I guarantee you there’s no problem. I guarantee.”If the Supreme Court upholds the provision challenged in the new case, it will be the end of a trend.In 2017, a unanimous eight-justice court struck down a different provision, one forbidding marks that disparage people, living or dead, along with “institutions, beliefs or national symbols.”The decision, Matal v. Tam, concerned an Asian American dance-rock band called the Slants. The court split 4 to 4 in much of its reasoning, but all the justices agreed that the provision at issue in that case violated the Constitution because it took sides based on speakers’ viewpoints.In 2019, the court rejected a provision barring the registration of “immoral” or “scandalous” trademarks.That case concerned a line of clothing sold under the brand name FUCT. When the case was argued, Mr. Stewart told the justices that the term was “the equivalent of the past participle form of the paradigmatic profane word in our culture.”Justice Kagan, writing for a six-justice majority, did not dispute that. But she said the law was unconstitutional because it “disfavors certain ideas.”If the justices were divided in the new case, Vidal v. Elster, No. 22-704, it was over the rationale for ruling to uphold the law before them, not on the outcome.Justice Samuel A. Alito Jr., for instance, asked Mr. Stewart for a theory that would allow him to vote for the government without rejecting a position he had staked out in an earlier case.The justice added that the task was not pressing. “I mean,” he said, “you don’t need my vote to win your case.” More

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      Supreme Court Weighs When Officials May Block Citizens on Social Media

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      The justices struggled to distinguish private conduct, which is not subject to the First Amendment, from state action, which is.The Supreme Court worked hard in a pair of arguments on Tuesday to find a clear constitutional line separating elected officials’ purely private social media accounts from ones that reflect government actions and are subject to the First Amendment. After three hours, though, it was not clear that a majority of the justices had settled on a clear test.The question in the two cases was when the Constitution limits officials’ ability to block users from their accounts. The answer turned on whether the officials’ use of the accounts amounted to “state action,” which is governed by the First Amendment, or private activity, which is not.That same question had seemed headed to the Supreme Court after the federal appeals court in New York ruled in 2019 that President Donald J. Trump’s Twitter account was a public forum from which he was powerless to exclude people based on their viewpoints.Had the account been private, the court said, Mr. Trump could have blocked whomever he wanted. But since he used the account as a government official, he was subject to the First Amendment.After Mr. Trump lost the 2020 election, the Supreme Court vacated the appeals court’s ruling as moot.Justice Elena Kagan said on Tuesday that Mr. Trump’s Twitter feed was in an important sense official and therefore subject to the First Amendment.“I don’t think a citizen would be able to really understand the Trump presidency, if you will, without any access to all the things that the president said on that account,” Justice Kagan said. “It was an important part of how he wielded his authority. And to cut a citizen off from that is to cut a citizen off from part of the way that government works.”Hashim M. Mooppan, a lawyer for two school board officials, said none of that implicated the First Amendment.“President Trump could have done the same thing from Mar-a-Lago or a campaign rally,” Mr. Mooppan said. “If he gave every one of those speeches at his personal residence, it wouldn’t somehow convert his residence into government property.”The cases argued Tuesday were the first of several this term in which the Supreme Court will consider how the First Amendment applies to social media companies. The court will hear arguments next year on both whether states may prohibit large social media companies from removing posts based on the views they express and whether Biden administration officials may contact social media platforms to combat what they say is misinformation.The first case argued Tuesday concerned the Facebook and Twitter accounts of two members of the Poway Unified School District in California, Michelle O’Connor-Ratcliff and T.J. Zane. They used the accounts, created during their campaigns, to communicate with their constituents about activities of the school board, invite them to public meetings, ask for comments on the board’s activities and discuss safety issues in the schools.Two parents, Christopher and Kimberly Garnier, frequently posted lengthy and repetitive critical comments, and the officials eventually blocked them. The parents sued, and lower courts ruled in their favor.“When state actors enter that virtual world and invoke their government status to create a forum for such expression, the First Amendment enters with them,” Judge Marsha S. Berzon wrote for a unanimous three-judge panel of the U.S. Court of Appeals for the Ninth Circuit, in San Francisco.Mr. Mooppan said the accounts were personal and were created and maintained without any involvement by the district.Justice Brett M. Kavanaugh pressed Mr. Mooppan on what it would take to make the accounts official and so subject to the First Amendment. “Is announcing rules state action?” the justice asked.Mr. Mooppan said it would be if the announcement was not available elsewhere. He gave a more equivocal answer to a question about notifications of school closures. But he said a general public safety reminder was not state action.Pamela S. Karlan, a lawyer for the parents, said Ms. O’Connor-Ratcliff’s Facebook feed was almost entirely official. “Of the hundreds of posts, I found only three that were truly non-job-related,” Ms. Karlan said, adding, “I defy anyone to look at that and think this wasn’t an official website.”The second case, Lindke v. Freed, No. 22-611, concerned a Facebook account maintained by James R. Freed, the city manager of Port Huron, Mich. He used it to comment on a variety of subjects, some personal and some official. Among the latter were descriptions of the city’s responses to the coronavirus pandemic.The posts prompted critical responses from a resident, Kevin Lindke, whom Mr. Freed eventually blocked. Mr. Lindke sued and lost. Judge Amul R. Thapar, writing for a unanimous three-judge panel of the U.S. Court of Appeals for the Sixth Circuit, in Cincinnati, said Mr. Freed’s Facebook account was personal, meaning that the First Amendment had no role to play.“Freed did not operate his page to fulfill any actual or apparent duty of his office,” Judge Thapar wrote. “And he did not use his governmental authority to maintain it. Thus, he was acting in his personal capacity — and there was no state action.”Justice Kagan told Allon Kedem, a lawyer for Mr. Lindke, that Mr. Freed’s page did not look particularly official.“There are a lot of baby pictures and dog pictures and obviously personal stuff,” she said. “And intermingled with that there is, as you say, communication with constituents about important matters. But it’s hard to look at this page as a whole, unlike the one in the last case, and not think that surely this could not be the official communications channel.” More

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      Supreme Court Delays Efforts to Redraw Louisiana Voting Map

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      The Louisiana dispute is one of several voting rights cases churning through the courts that challenge a state’s congressional map.The Supreme Court on Thursday upheld a lower-court ruling that delays an effort to redraw Louisiana’s congressional map, prolonging a bitter clash over the representation of Black voters in the state.The order temporarily leaves in place a Republican-drawn map that a federal judge had said diluted the power of Black voters while an appeal moves through the lower courts.Civil rights groups had sought emergency relief from the Supreme Court after a federal appeals court abruptly canceled a scheduled hearing aimed at drafting a new map for Louisiana. That map was to include two districts in which Black voters represent a large enough share of the population to have the opportunity to select a candidate. The appeals court said that the state legislature should have more time to redraw its own map before a lower court stepped in.The Supreme Court’s order was unsigned, which is typical when the justices rule on emergency applications, and there were no public dissents.Justice Ketanji Brown Jackson, in a brief concurring opinion, emphasized that Louisiana should resolve the dispute in time for the 2024 election.In asking the Supreme Court to intervene, the plaintiffs had argued that delays in the case could complicate efforts to instate a new map by the next election, leaving the state with a version that lumps Black voters from different parts of the state into one voting district, diluting their power.By the time the Supreme Court issued its order on Thursday, a hearing date had passed. Another has been set for February.The consolidated cases, Galmon v. Ardoin and Robinson v. Ardoin, are part of a larger fight over redistricting. State lawmakers in the South have contested orders to refashion congressional maps and establish additional districts to bolster Black representation. The outcomes could help tilt control of the House, where Republicans hold a razor-thin majority.Weeks earlier, the court refused a similar request by Alabama, which had asked the justices to reinstate a map with only one majority-Black district. A lower court had found that Republican lawmakers blatantly disregarded its order to create a second majority-Black district or something “close to it.”At issue in Louisiana is a voting map passed by the Republican-controlled Legislature in the winter of 2022. The map carved the state into six districts, with only one majority-Black district, which joined Baton Rouge and New Orleans, the state’s two largest cities. About a third of the population in the state is Black.The case has reached the Supreme Court before.A coalition that included the N.A.A.C.P. Louisiana State Conference, the Power Coalition for Equity and Justice and Louisiana voters sued state officials and said the map unfairly weakened the power of Black voters.A district court, siding with the plaintiffs, temporarily blocked Louisiana from using its map in any upcoming elections. A new map, it said, should include an additional district where Black voters could choose a representative. The court gave the Legislature until June 20, 2022, to sign off on a redrawn map.Louisiana immediately appealed to the U.S. Court of Appeals for the Fifth Circuit, in New Orleans, and a three-judge panel unanimously denied the request. The state then asked the Supreme Court to intervene.The Supreme Court paused the case until it ruled in the Alabama case, Allen v. Milligan, which concerned similar questions. That essentially allowed the Republican-drawn map in Louisiana to go into effect during the 2022 election.The court lifted the pause in June after a majority of the justices, in a surprise decision, found Alabama’s map had unfairly undercut the power of Black voters. The justices said the appeals court should review the case before the 2024 elections. More

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      Democrats Need to Pick Up the Pace of Putting Judges on the Bench

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      With the outcome of the 2024 elections for the president and control of the Senate very much up in the air, Democrats must make a concerted effort to fill federal judicial vacancies before next November.Republicans did this very effectively before the end of the Trump presidency, leaving few vacancies for President Biden to fill when he took office. Now the Democrats must emulate that approach. And they must do so now.At the moment, there are two vacancies without nominees on appeals courts and 37 on district courts. Because the evaluation process of nominees takes time, it is imperative that the Biden administration quickly name nominees to those and future vacancies. The Senate then must work expeditiously to confirm those deemed suitable for the lifetime appointments.Mr. Biden has nominated 186 people to Article III judgeships, which include the Supreme Court and the federal appeals and district courts, according to the White House. At this point in their tenures, George W. Bush had nominated 211, followed by Mr. Trump’s 206, according to the Heritage Foundation’s Judicial Appointment Tracker. There have been inexplicable and troubling delays in this process. For example, two years ago, Judge Diana Motz of the United States Court of Appeals for the Fourth Circuit in Richmond, Va., announced that she would take senior status, a form of semiretirement, when a successor was confirmed. She took senior status last year, though no replacement had been named at that time. And still no one has been nominated for this important judgeship.Time may be running out for the Biden administration.It is critical for federal judges who would like to be replaced by a Democratic president to take senior status so that Mr. Biden can appoint their successors with sufficient time to allow them to be confirmed by the current Senate. A federal judge or justice may take senior status after meeting the age and service requirements of the “Rule of 80” — the judge must be at least 65 years old, and the judge’s age and years of service must add up to 80. A total of 121 federal judges are now eligible for senior status but have not announced their plans, according to the group Balls and Strikes, which tracks that information. Of those, 44 were appointed by Democratic presidents. By Jan. 20, 2025, the date of the next presidential inauguration, that number could rise to 69.There is little reason for judges not to take senior status. They can continue to hear cases, even carry a full load of cases. And taking senior status allows the president to fill that seat on the bench. The judge can condition taking senior status on the confirmation of a successor. A senior judge typically is not allowed to participate in en banc decisions, where all (or a significant number) of the judges on the court review a matter that is particularly significant or complex. But that is the main restriction on what a senior judge may do.We are long past the time when it could be said that judges appointed by Republican and by Democratic presidents were indistinguishable. This was made clear in an analysis of Supreme Court rulings published in July 2022 by the data-driven news site FiveThirtyEight, which found the partisan divide among the current justices “is deeper than it’s been in the modern era.”And this partisan divide is not confined to the Supreme Court. There are often huge differences between how judges in the lower courts who were appointed by Democratic and by Republican presidents decide cases. For example, a federal appeals court recently upheld Tennessee and Kentucky laws prohibiting gender-affirming care for transgender minors, with the two Republican-appointed judges siding with the states and a judge initially nominated by President Bill Clinton dissenting. Whether it is reproductive rights or gun rights or employee rights, or in countless other areas, the outcome often depends on which president appointed the judge or judges hearing the case.For that reason, I wrote an opinion article in The Los Angeles Times in March 2014 urging Justice Ruth Bader Ginsburg, then 81, to retire so that President Barack Obama could replace her while there was a Democratic Senate and someone with progressive values would take her seat. She took offense at the suggestion, also raised by others, and remained on the bench until she died in September 2020, when President Trump replaced her with the conservative Justice Amy Coney Barrett. Justice Ginsburg gambled, and America lost.Likewise, I think of the liberal federal court of appeals judges who did not take senior status, though they were eligible during the Obama presidency. For example, Judge Stephen Reinhardt of the Ninth Circuit declined to take senior status; when he died at age 87 in 2017 President Trump replaced him with a conservative judge. By the time another liberal Ninth Circuit judge, Harry Pregerson, decided to take senior status in late 2015, he was 92, and though Mr. Obama quickly nominated a replacement, it was late in his term and got caught up in politics and President Trump ended up appointing another conservative to the seat.Creating vacancies will matter only if Mr. Biden quickly names replacements and the Senate confirms the nominees. If the president is not re-elected, the Republican president will fill any vacancies that exist upon taking office. And regardless of the outcome of the presidential election, if the Republicans take control of the Senate, the confirmation of judicial candidates nominated by a Democratic president will be far more difficult. That is why immediate action is imperative.A president’s most long-lasting legacy is arguably the judges he appoints. Many will serve for decades after the president leaves office. Republicans have tended to recognize this much more than Democrats. That needs to change, and quickly.Erwin Chemerinsky is the dean of the law school at the University of California, Berkeley.Source photographs by John Slater and SergeyChayko/Getty ImagesThe Times is committed to publishing a diversity of letters to the editor. We’d like to hear what you think about this or any of our articles. Here are some tips. And here’s our email: letters@nytimes.com.Follow The New York Times Opinion section on Facebook, Twitter (@NYTopinion) and Instagram. More