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      Swift Ruling in Jan. 6 Case Tests Trump's Tactic of Delay

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      The former president has leveraged the slow judicial process in the past to thwart congressional oversight, but the Jan. 6 case may be different.WASHINGTON — On the surface, a judge’s ruling on Tuesday night that Congress can obtain Trump White House files related to the Jan. 6 riot seemed to echo another high-profile ruling in November 2019. In the earlier matter, a judge said a former White House counsel must testify about then-President Donald J. Trump’s efforts to obstruct the Russia investigation.In both cases, Democratic-controlled House oversight committees issued subpoenas, Mr. Trump sought to stonewall those efforts by invoking constitutional secrecy powers, and Obama-appointed Federal District Court judges — to liberal cheers — ruled against him. Each ruling even made the same catchy declaration: “presidents are not kings.”But there was a big difference: The White House counsel case two years ago had chewed up three and a half months by the time Judge Ketanji Brown Jackson issued a 120-page opinion to end its first stage. Just 23 days elapsed between Mr. Trump’s filing of the Jan. 6 papers lawsuit and Judge Tanya Chutkan’s ruling against him.The case, which raises novel issues about the scope of executive privilege when asserted by a former president, is not over: Mr. Trump is asking an appeals court to overturn Judge Chutkan’s ruling and, in the interim, to block the National Archives from giving Congress the first set of files on Friday. The litigation appears destined to reach the Supreme Court, which Mr. Trump reshaped with three appointments.But if the rapid pace set by Judge Chutkan continues, it would mark a significant change from how lawsuits over congressional subpoenas went during the Trump era.The slow pace of such litigation worked to the clear advantage of Mr. Trump, who vowed to defy “all” congressional oversight subpoenas after Democrats took the House in the 2018 midterm. He frequently lost in court, but only after delays that ran out the clock on any chance that such efforts would uncover information before the 2020 election.So alongside the substantive issues about executive privilege, one key question now is whether Mr. Trump can again tie the matter up in the courts long enough that even a Supreme Court ruling against him would come too late for the special committee in the House that is seeking the Trump White House documents for its investigation into the Jan. 6 riot.Specifically, the Jan. 6 committee has demanded detailed records about Mr. Trump’s every movement and meeting on the day of the assault, when Mr. Trump led a “Stop the Steal” rally and his supporters then sacked the Capitol in an attempt to block Congress from certifying Mr. Biden’s Electoral College victory.The chairman of the committee, Representative Bennie Thompson, Democrat of Mississippi, has said he wants to wrap up by “early spring.” In that case, the committee would need access to the files it has subpoenaed by late winter for that information to be part of any report.Legally, the committee could continue working through the rest of 2022. If Republicans retake the House in the midterm election, the inquiry would very likely end.What happens next in the Jan. 6 White House files case may turn on the inclinations of whichever three judges from the U.S. Court of Appeals for the District of Columbia Circuit are randomly assigned to the panel that will hear Mr. Trump’s appeal.Of the court’s 11 full-time judges, seven are Democratic appointees — including Judge Jackson, whom Mr. Biden elevated earlier this year — and four are Republican appointees, including three named by Mr. Trump. The circuit also has five “senior status” judges who are semiretired but sometimes get assigned to panels; four of those five are Republican appointees.If the D.C. Circuit declines, as Judge Chutkan did, to issue a preliminary injunction, Mr. Trump will presumably immediately appeal to the Supreme Court via its so-called shadow docket, by which the justices can swiftly decide emergency matters without full briefs and arguments.If a stay is granted at either level, the question would shift to whether the D.C. Circuit panel echoes Judge Chutkan’s decision to move quickly in light of the circumstances, or throttles back to the slower pace it tended to follow on such cases when Mr. Trump was president.Notably, in another Trump-era case, involving access to financial papers held by his accounting firm, Mazars USA, the Federal District Court judge assigned to that matter, Amit Mehta, was sensitive to the timing implications and took less than a month after the case was filed in April 2019 to hand down his opinion that Congress could get the records.But a D.C. Circuit panel took about five more months before reaching that same result — a nominal win for Congress — in October 2019. Mr. Trump then appealed to the Supreme Court, which waited until July 2020 to send the case back down to Judge Mehta to start the litigation over again using different standards.Separately, House Democrats have introduced legislation in response to the Trump presidency that would, among many other things, speed up lawsuits to enforce congressional subpoenas for executive branch information. Two people familiar with the matter said House Democratic leaders have indicated they plan to hold a floor vote on that bill before the end of 2021, though no date has been set; its prospects in the Senate are unclear.A related important difference in secrecy disputes between the Trump era and the Jan. 6 White House papers case is that when Mr. Trump was president, his administration controlled the executive branch files Congress wanted to see.Today, President Biden has refused to join Mr. Trump in invoking executive privilege, instead instructing the National Archives to give Congress the files unless a court orders otherwise. As a result, when it comes to government files, the default has flipped from secrecy to disclosure.During the phase of the lawsuit before Judge Chutkan, she signaled that she was averse to judicial delay. During arguments last week, she rejected a suggestion by a lawyer for Mr. Trump that she examine each document before deciding whether executive privilege applied.Representative Bennie Thompson, the chairman of the Jan. 6 committee, has said he wants the investigation to wrap up by “early spring.”Al Drago for The New York Times“I don’t see any language in the statute or any case that convinces me that where a previous president disagrees with the incumbent’s assertion of privilege, that the court is required to get involved and do a document-by-document review,” she said, adding:“Wouldn’t that always mean that the process of turning over these records, where the incumbent has no objection, would slow to a snail’s pace? And wouldn’t that be an intrusion by this branch into the executive and legislative branch functions?”Understand the Claim of Executive Privilege in the Jan. 6. InquiryCard 1 of 8A key issue yet untested. More

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      Judge Rejects Trump’s Bid to Keep Papers Secret in Jan. 6 Inquiry

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      But a Trump lawyer has signaled an intent to appeal the ruling, which raises novel issues about an ex-president’s executive privilege powers.WASHINGTON — A federal judge on Tuesday night rejected a bid by former President Donald J. Trump to keep secret papers about his actions and conversations leading up to and during the Jan. 6 attack on the Capitol by his supporters.In a 39-page ruling, Judge Tanya S. Chutkan of the U.S. District Court for the District of Columbia held that Congress’s constitutional oversight powers to obtain the information prevailed over Mr. Trump’s residual secrecy powers — especially because the incumbent, President Biden, agreed that lawmakers investigating the Jan. 6 riot should see the files.Mr. Trump “does not acknowledge the deference owed to the incumbent president’s judgment. His position that he may override the express will of the executive branch appears to be premised on the notion that his executive power ‘exists in perpetuity,’” Judge Chutkan wrote. “But presidents are not kings, and plaintiff is not president.”Mr. Trump retained the right to assert that his records were privileged, she added, but Mr. Biden was not obliged to honor that assertion. The incumbent president, she said, is better situated to protect executive branch interests, and Mr. Trump “no longer remains subject to political checks against potential abuse of that power.”The ruling does not necessarily mean that the National Archives will turn over the materials to the House committee investigating Jan. 6 any time soon. The case raises novel issues about the scope and limits of a former president’s executive privilege authority, and it is likely that it will ultimately be resolved by the Supreme Court.In a posting on Twitter, Taylor Budowich, a spokesman for Mr. Trump, said the case was destined to be appealed. He said Mr. Trump was committed to defending the right of past presidents — as well as present and future ones — to assert executive privilege and “will be seeing this process through.”The Jan. 6 committee has demanded that the National Archives and Records Administration turn over detailed records about Mr. Trump’s every movement and meeting on the day of the assault, when Mr. Trump led a “Stop the Steal” rally and his supporters then sacked the Capitol in an attempt to block Congress from certifying Mr. Biden’s Electoral College victory.Mr. Trump — who pursued a strategy of stonewalling all congressional oversight subpoenas while in office, running out the clock on such efforts before the 2020 election — has instructed his former subordinates to defy subpoenas from the Jan. 6 committee and filed a lawsuit seeking to block the National Archives from turning over files from his White House.Last week, Judge Chutkan, a 2014 Obama appointee, had signaled skepticism about Mr. Trump’s legal arguments. Mr. Trump’s lawyer asserted that his residual executive privilege powers meant the courts should block Congress from subpoenaing the files, notwithstanding Mr. Biden’s decision not to assert executive privilege over them in light of the circumstances.Mr. Trump’s lawyer had argued that the public interest would be served by letting Mr. Trump keep the documents secret to preserve executive branch prerogatives. But Judge Chutkan wrote that his arguments did not “hold water” in light of Mr. Biden’s support for making them public and Congress’s need to investigate the attack without undue delays.Congress and the Biden administration, she noted, “contend that discovering and coming to terms with the causes underlying the Jan. 6 attack is a matter of unsurpassed public importance because such information relates to our core democratic institutions and the public’s confidence in them. The court agrees.”Earlier this week, Mr. Trump’s lawyer, Jesse R. Binnall, demonstrated an intent to keep going by asking Judge Chutkan to impose an emergency injunction on the National Archives barring it from turning over the records while he appealed the matter to the U.S. Court of Appeals for the District of Columbia Circuit.Understand the Supreme Court’s Momentous TermCard 1 of 5The Texas abortion law. More

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      Biden and the Democrats Are on the Verge of … Something

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      A Secret Service agent gestures as Marine One takes off.Oliver Contreras for The New York TimesGail Collins: Hey, Bret, the holiday season is almost upon us — if you presume we start off with Halloween, which is one of my favorites. Are you going to be dressing up as any famous person for parties?Bret Stephens: Well, I once went to a Halloween bash dressed as Picasso’s Blue Period — I’ll leave the details of the costume to your imagination — but that was in high school. I guess I could go as Edvard Munch’s “The Scream,” assuming you showed up as Kevin McCarthy.I’m referring, of course, to the House minority leader’s latest effort to make Liz Cheney’s life as unpleasant as possible.Gail: Yeah, the House Republicans are certainly going out of their way to try to torture her. I guess they’re shocked by her desire to actually investigate the folks who tried to attack the nation’s Capitol on Jan. 6. Who’d have thought a member of their party would be so picky?Now she’s got a Trump-backed primary challenger. What do you think her prospects for political survival are at this point?Bret: My knowledge of Wyoming politics is, um, not great. But I’m guessing that Cheney’s re-election chances aren’t great, either. I think that, at best, she can lay down a marker for the future, proving that at least some Republicans refused to participate in the cult of Il Duce wannabes. Good for her, but what America really needs is another party that stands for classically liberal values like free speech, free markets and free societies.Gail: Bret, are you talking about a … third party? That would certainly give us opportunities for a lot of vigorous arguing.Bret: Well, the third party I have in mind would probably do more to split Republicans than Democrats, so maybe you might warm to it. I just want to wrest a remnant of thoughtful conservatism out of the maw of Trumpism. The alternative is that Donald Trump and his minions become the default every time Democrats stumble.Gail: People need to feel they’re voting for the best real option, not just registering their alienation. The problem with third parties is that terrible accidents can happen. Ralph Nader’s run in 2000 took the election away from Al Gore and gave it to George W. Bush. Which was not his intention, although possibly something you appreciated.Bret: Just as you no doubt appreciated Ross Perot taking a few million votes from George H.W. Bush in 1992.In the meantime, Gail, how are you feeling about the leaner Joe Biden — the one who looks like he went on the budgetary equivalent of the Jenny Craig diet by shedding about $1.6 trillion?Gail: About Bidenism-lite — you mean the new Sinema-Manchin version? I can see how Biden had to do something to get those two onboard, but the idea that Joe Manchin, servant of the coal industry, was dictating compromises on climate change, and the utterly compromised Kyrsten Sinema was torpedoing tax rate increases for corporations and the wealthy, is deeply depressing.Bret: The good news from your point of view is that the downsized plan appears to keep universal preschool education and national child care. The good news from my point of view is that it costs less and corporate taxes may not be raised. Democrats may also come to appreciate that getting rid of some of the climate provisions to force companies to move to clean energy sources may not be the worst thing, politically speaking, when energy prices are already going up, up, up.Gail: Well, politically speaking, you do have a point about the climate provisions’ chances. We’ll survive, but it’s going to leave future generations stuck with the weather that comes with global warming.Bret: There’s no good climate solution unless China and India step up. The best thing the United States can probably do right now is invest more in natural gas, which is much cleaner than coal and much more reliable than wind or solar.On the whole, I think the slimmed-down Biden package thing could be a winner all around. Here I return to my basic principle that the No. 1 priority is to keep Trump from ever returning to the White House, which first requires some legislative victories that are popular with the public.Gail: It’s a wonder what Trump has done to rational Republicans. If I’d showed you the Biden agenda 10 years ago, don’t imagine you’d have seen it as something you’d be rooting for in 2021.Bret: The things I never imagined a decade ago that I’d someday be rooting for could probably fill a book, starting with my vote for Hillary Clinton. Also didn’t imagine I’d be agreeing with a dissent by Justice Sonia Sotomayor while worrying about a Supreme Court over-dominated by conservative justices.Gail: Do you think that Texas abortion law is going to last long? I’m hoping the Supreme Court, even in its current conservative condition, is going to be appalled by the part that has the general public doing the enforcement. Via do-it-yourself lawsuits against the abortion providers and anyone who helps them, down to drivers who bring the patients to clinics.I hear this kind of thing is a new conservative trend. Care to explain?Bret: There are two abortion laws at issue here. There’s the case out of Texas, regarding Senate Bill 8, which bans virtually all abortions after six weeks or so and delegates enforcement to private citizens rather than state officials. The bill was written that way because it was an attempt to get around judicial review, which typically requires a state official to be a defendant.Gail: I keep envisioning folks running into family planning clinics screaming “citizen’s arrest!”Bret: The court made a bad mistake by failing twice to enjoin the Texas law. But I’m betting it will still overturn it because the alternative is a license to vigilantes everywhere to deny people their constitutional rights, which could also include “conservative” rights like the right to bear arms — in a blue state.But then there’s another abortion case out of Mississippi, based on a law banning most abortions after 15 weeks. That’s a more clear challenge to Roe v. Wade, and it’s the one we should be really thinking about.Gail: You know, Texas politicians are great at doing spectacularly awful things that make headlines. But meanwhile, Mississippi always seems to be able to be much worse without anybody noticing.Bret: The conservatives on the court will do themselves and their cause irreparable harm if they uphold the Mississippi law and overturn Roe. There will be a renewed push to pack the court with new justices. It will turn access to abortion into a real force for Democrats in purple states and help them in the midterms. It will probably push Stephen Breyer to retire now to ensure he can be succeeded by a liberal justice. It will do a lot to help the Democratic ticket in 2024. And it will push Congress to seek legislative means to curb the court’s authority.Overturning Roe might wind up being conservatism’s biggest Pyrrhic victory since Richard Nixon’s re-election.Gail: Hey, we’ve been agreeing for a while now. Let’s get back to Biden. How did you like his town hall the other night?Bret: I felt like I was holding my breath half the time, hoping he’d be able to complete his sentences. Most of the time he did. But some of the lapses — like declaring that it was U.S. policy to come to Taiwan’s defense in case of attack, when it isn’t — were disturbing because they’re potentially so consequential.Gail: He did seem a bit lost toward the beginning, standing there with his fists clenched — he looked as if he was holding invisible ski poles. And he’s never going to be a wowser as a public speaker.But for the most part his answers all made sense, he was personable with the crowd, and, given the crazy scene he’s dealing with in Washington, I thought overall he made a good impression.Bret: The line that I keep hearing from people who have known Biden over the years is that he’s “lost a step.” The same could probably have been said about Ronald Reagan in his second term, and he still managed to have real successes, like comprehensive immigration reform, a major tax reform, better ties with the Soviet Union and the “Tear Down This Wall” speech in 1987, just two years before the Berlin Wall fell.Biden’s performance is still much preferable to Trump’s, who kept his step but lost his mind. Even so, it worries me. Voters notice, even if much of the press is too polite to mention it.Gail: Reagan’s second term was really scary. If Biden runs again, we’ll all have good reason to debate whether he’s too age-limited. But right now, he seems to be well in control, even if you don’t like all his policy choices.Love your Trump line, by the way.Bret: Thank you. And that reminds me: Please be sure to read The Times’s Book Review section celebrating its 125 birthday. My favorite feature is a sampling of letters to the editor, including one reader’s criticism of Henry James’s prose: “By bad,” the reader wrote, “I mean unnatural, impossible, overdrawn as to the characters, and written in a style which is positively irritating.”Gives me hope, Gail.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 Focuses on Procedure in Kentucky Abortion Case

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      After the state’s political landscape shifted in 2019, the Democratic governor and the Republican attorney general disagreed on defending the law.WASHINGTON — The Supreme Court heard arguments in an abortion case on Tuesday, but the issue for the justices was a procedural one: Could Kentucky’s attorney general, a Republican, defend a state abortion law when the governor, a Democrat, refused to pursue further appeals after a federal appeals court struck down the law?As the argument progressed through a thicket of technical issues, a majority of the justices seemed inclined to say yes.“Kentucky maybe ought to be there in some form, and the attorney general is the one that wants to intervene,” Chief Justice John G. Roberts Jr. said.More important abortion cases are on the horizon. In December, the court will hear arguments on whether to overrule Roe v. Wade in a case concerning a Mississippi law banning most abortions after 15 weeks. And the justices have been asked to take another look at a Texas law that prohibits most abortions after six weeks, which the court allowed to go into effect last month by a 5-to-4 vote.Tuesday’s case, Cameron v. EMW Women’s Surgical Center, No. 20-601, concerned a Kentucky law that challengers said effectively banned the most common method of abortion in the second trimester of pregnancy, dilation and evacuation. The justices barely discussed the law during Tuesday’s argument.Rather, they focused on the tangled history of the case and the complicated jurisdictional and procedural questions that arose from it.The case started in 2018, when the state’s only abortion clinic and two doctors sued various state officials to challenge the law. The state’s attorney general at the time, Andy Beshear, a Democrat, said his office was not responsible for enforcing the law and entered into a stipulation dismissing the case against him, agreeing to abide by the final judgment and reserving the right to appeal.The state’s health secretary, who had been appointed by a Republican governor, defended the law in court. A federal trial court struck the law down, saying it was at odds with Supreme Court precedent. The health secretary appealed, but the attorney general did not.While the case was moving forward, Kentucky’s political landscape shifted. Mr. Beshear, who had been attorney general, was elected governor. Daniel Cameron, a Republican, was elected attorney general.Mr. Beshear appointed a new health secretary, Eric Friedlander, who continued to defend the law on appeal. But after a divided three-judge panel of the United States Court of Appeals for the Sixth Circuit, in Cincinnati, affirmed the trial judge’s ruling, Mr. Friedlander declined to seek review from the full appeals court or the Supreme Court.Mr. Cameron, the new attorney general, sought to intervene in the appeals court, saying he was entitled to defend the law. The appeals court denied his request, ruling that it had come too late.On Tuesday, the justices probed the significance of the stipulation and the standards for when appeals courts should allow parties to intervene in the late stages of a case.Justice Clarence Thomas, who has taken to asking the first questions during arguments, said “there isn’t much law” on the appropriate standards.Justice Sonia Sotomayor said the Sixth Circuit was entitled to take account of the fact that the attorney general had failed to file an appeal after losing in the trial court, notwithstanding the later election of a new attorney general.“Why would we call it an abuse of discretion for a court of appeals, after it’s rendered its judgment, to say we don’t really care what has happened in the political arena?” she asked.Matthew F. Kuhn, a lawyer for Mr. Cameron, said his client was acting in a different capacity when he sought to intervene. He was now, Mr. Kuhn said, representing the interests of the state.About 45 minutes into the argument, Justice Stephen G. Breyer described what he said was really going on the case. “First the Republicans are in, then the Democrats are in,” he said, “and they have different views on an abortion statute.”What to Know About the Supreme Court TermCard 1 of 5A blockbuster term begins. More

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      Read the document

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      39 tabulation of ballots within a State. Bush II, 531 U.S. at 107. 163. The actions set out in Paragraphs __-__, __-__, __-__, __-__, __-__, and __-__ created differential voting standards in Defendant States Pennsylvania, Arizona, Georgia, Michigan, Nevada, and Wisconsin in violation of the Equal Protection Clause. COUNT III: EQUAL PROTECTION (ONE MAN, ONE VOTE) 164. Plaintiff State repeats and re-alleges the allegations of paragraphs 1-163, above, as if fully set forth herein. 165. The one-man, one-vote principle of this Court’s Equal Protection cases requires counting valid votes and not counting invalid votes. Reynolds, 377 U.S. at 554-55; Bush II, 531 U.S. at 103 (“the votes eligible for inclusion in the certification are the votes meeting the properly established legal requirements”). 166. The actions set out in Paragraphs __-__, __-__, __-__, __-__, __-__, and __-__ violated the one- man, one-vote principle by systemically excluding valid votes and those set out in Paragraphs __-__, __- __, __-__, __-__, __-__, and __-__ violate that principle by systemically including invalid votes in Defendant States Pennsylvania, Arizona, Georgia, Michigan, Nevada, and Wisconsin, in violation of the Equal Protection Clause. COUNT IV: DUE PROCESS (INTENTIONAL NONCOMPLIANCE) 167. Plaintiff State repeats and re-alleges the allegations of paragraphs 1-__, above, as if fully set forth herein. More

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      Abortion Arrives at the Center of the American Political Maelstrom

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      The Supreme Court’s decision not to block a Texas law banning most abortions left Republicans eager to replicate it. Democrats reeled, but sensed a winning issue in coming elections.WASHINGTON — The Supreme Court’s decision not to block a Texas law sharply curtailing abortions abruptly vaulted the issue to the forefront of American politics on Thursday, reshaping the dynamics of elections in California this month, in Virginia in November and in midterms next year that will determine control of Congress and statehouses.Republicans hailed the court’s 5-to-4 decision, explained in a one-paragraph middle-of-the-night ruling, as a tremendous victory, allowing a nearly complete ban on abortions to stand in the nation’s second-largest state.For Democrats, it was a nightmare come true: A conservative Supreme Court, led by three appointees of former President Donald J. Trump, had allowed a highly gerrymandered, Republican-controlled state legislature to circumvent Roe v. Wade, the half-century-old decision that enshrined abortion as a constitutional right.Suddenly, supporters of abortion rights found themselves grappling not only with the political and policy failures that had led to this point, but also with the prospect that other Republican-controlled legislatures could quickly enact copycat legislation. On Thursday, G.O.P. lawmakers in Arkansas, Florida and South Dakota promised to do so in their next legislative sessions.Yet Democrats also embraced the opportunity to force an issue they believe is a political winner for them to the center of the national debate. After years of playing defense, Democrats say the Texas law will test whether the reality of a practical ban on abortions can motivate voters to support them.Senator Catherine Cortez Masto of Nevada, a Democrat up for re-election in 2022, said people in her state had fought to protect women’s reproductive freedom and would vote accordingly. “If a Republican is going to go to Washington to roll those freedoms back, I will make it an issue,” she said in an interview. “I don’t think you should underestimate the impact that this issue has to Nevadans.”Republicans held up the Texas law as an example for the country to follow. “This law will save the lives of thousands of unborn babies in Texas and become a national model,” said Lt. Gov. Dan Patrick of Texas. “I pray that every other state will follow our lead in defense of life.”Gov. Kristi Noem of South Dakota, who is considered a potential Republican candidate for president in 2024, said she had directed her office to “make sure we have the strongest pro-life laws on the books.”Senate Democrats’ campaign arm has signaled that it will use abortion rights as a cudgel against Republicans running in key states like Nevada, where Senator Catherine Cortez Masto faces re-election in 2022.Sarahbeth Maney/The New York TimesThe court’s decision, which did not address the substance of the Texas law, creates new urgency for President Biden and congressional Democrats to do more than issue public statements vowing to defend women’s reproductive rights.“The temperature just got a lot hotter on this issue, and I certainly now expect Congress to join in these fights,” said Gov. Michelle Lujan Grisham of New Mexico, the chairwoman of the Democratic Governors Association. “Our voters expect us all to do more.”Yet Senate Democrats do not have the votes to eliminate the filibuster, which would be necessary to change federal abortion law in the evenly divided chamber.In Washington on Thursday, Democratic leaders dutifully scrambled to show their determination to push back against the possibility that the Texas law could be replicated elsewhere — or to respond if the Supreme Court rolls back abortion rights when it rules on a Mississippi law that seeks to ban most abortions after 15 weeks of pregnancy, two months earlier than Roe and subsequent decisions allow.Speaker Nancy Pelosi promised to bring a vote on the Women’s Health Protection Act, which would effectively codify abortion rights into federal law.And Mr. Biden pledged “a whole-of-government effort” in response to the Texas law, directing the Department of Health and Human Services and the Justice Department to identify possible federal measures to help ensure that women in the state have access to safe and legal abortions.“The highest court of our land will allow millions of women in Texas in need of critical reproductive care to suffer while courts sift through procedural complexities,” Mr. Biden said. “The impact of last night’s decision will be immediate and requires an immediate response.”Vice President Kamala Harris added, “We will not stand by and allow our nation to go back to the days of back-alley abortions.”The first election that could test Democrats’ capacity to energize voters over abortion rights comes on Sept. 14 in California, where voters will determine the fate of Gov. Gavin Newsom, who faces a recall effort. Mr. Newsom warned on Twitter that the Texas abortion ban “could be the future of CA” if the recall were successful.In Virginia, Democratic candidates for the state’s three statewide offices and House of Delegates pounced on the issue on Thursday. Former Gov. Terry McAuliffe, who is running to recapture the office in November, said the fight for abortion rights would help motivate Democratic voters who might be complacent after the party captured full control of state government in 2019 and helped Mr. Biden win the state last year.“We are a Democratic state. There are more Democrats,” Mr. McAuliffe said. “But this is an off-off-year, and getting Democrats motivated to come out, that’s always the big challenge.”Eyeing 2022, the Democrats’ Senate campaign arm has signaled it will use abortion rights as a cudgel against Republicans running in states like Florida, New Hampshire, Nevada and North Carolina. Democrats planning campaigns for governor next year are preparing to brand themselves as the last line of defense on abortion rights, particularly in states with Republican-controlled legislatures.“People are now waking up to the fact that the battle will now be in the states, and they recognize that the only thing, literally the only thing standing in the way of Pennsylvania passing the same ban that Texas just passed, is the veto pen of our Democratic governor,” said Josh Shapiro, the Pennsylvania attorney general, a Democrat who has said he expects to enter the race to succeed Gov. Tom Wolf. “I’ve given up on the politicians in Washington. I don’t think we can count on them anymore.”Former Gov. Terry McAuliffe of Virginia, who is running for his old post this year, believes abortion access will be a motivating factor for voters.Pete Marovich for The New York TimesThough Republicans have long made overturning Roe a central political goal — as a candidate in 2016, Mr. Trump predicted that his eventual Supreme Court appointees would do so — there was still a palpable sense of shock among Democrats. Despite the court’s 6-to-3 conservative majority, many Democrats seemed mentally unprepared for Wednesday’s ruling.“You can’t plan for a blatantly false or unconstitutional court ruling like this,” said Representative Conor Lamb of Pennsylvania, a Democrat who is running for his state’s open Senate seat next year.Understand the Texas Abortion LawCard 1 of 4The most restrictive in the country. More

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      Justice Breyer on Retirement and the Role of Politics at the Supreme Court

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      In an interview prompted by his new book, the 83-year-old leader of the court’s liberal wing said he is working on a decision about when to step down.WASHINGTON — Justice Stephen G. Breyer says he is struggling to decide when to retire from the Supreme Court and is taking account of a host of factors, including who will name his successor. “There are many things that go into a retirement decision,” he said.He recalled approvingly something Justice Antonin Scalia had told him.“He said, ‘I don’t want somebody appointed who will just reverse everything I’ve done for the last 25 years,’” Justice Breyer said during a wide-ranging interview on Thursday. “That will inevitably be in the psychology” of his decision, he said.“I don’t think I’m going to stay there till I die — hope not,” he said.Justice Breyer, 83, is the oldest member of the court, the senior member of its three-member liberal wing and the subject of an energetic campaign by liberals who want him to step down to ensure that President Biden can name his successor.The justice tried to sum up the factors that would go into his decision. “There are a lot of blurred things there, and there are many considerations,” he said. “They form a whole. I’ll make a decision.”He paused, then added: “I don’t like making decisions about myself.”The justice visited the Washington bureau of The New York Times to discuss his new book, “The Authority of the Court and the Peril of Politics,” scheduled to be published next month by Harvard University Press. It prompted questions about expanding the size of court, the so-called shadow docket and, inevitably, his retirement plans.The book explores the nature of the court’s authority, saying it is undermined by labeling justices as conservative or liberal. Drawing a distinction between law and politics, Justice Breyer wrote that not all splits on the court were predictable and that those that were could generally be explained by differences in judicial philosophy or interpretive methods.In the interview, he acknowledged that the politicians who had transformed confirmation hearings into partisan brawls held a different view, but he said the justices acted in good faith, often finding consensus and occasionally surprising the public in significant cases.“Didn’t one of the most conservative — quote — members join with the others in the gay rights case?” he asked in the interview, referring to Justice Neil M. Gorsuch’s majority opinion last year ruling that a landmark civil rights law protects gay and transgender workers from workplace discrimination.Justice Breyer made the point more broadly in his new book. “My experience from more than 30 years as a judge has shown me that anyone taking the judicial oath takes it very much to heart,” he wrote. “A judge’s loyalty is to the rule of law, not the political party that helped to secure his or her appointment.”That may suggest that judges ought not consider the political party of the president under whom they retire, but Justice Breyer seemed to reject that position.He was asked about a remark from Chief Justice William H. Rehnquist, who died in 2005, in response to a question about whether it was “inappropriate for a justice to take into account the party or politics of the sitting president when deciding whether to step down from the court.”“No, it’s not inappropriate,” the former chief justice responded. “Deciding when to step down from the court is not a judicial act.”That sounded correct to Justice Breyer. “That’s true,” he said.Progressive groups and many Democrats were furious over Senate Republicans’ failure to give a hearing in 2016 to Judge Merrick B. Garland, President Barack Obama’s third Supreme Court nominee. That anger was compounded by the rushed confirmation last fall of Justice Amy Coney Barrett, President Donald J. Trump’s third nominee, just weeks after the death of Justice Ruth Bader Ginsburg and weeks before Mr. Trump lost his bid for re-election.Liberals have pressed Mr. Biden to respond with what they say is corresponding hardball: expanding the number of seats on the court to overcome what is now a 6-to-3 conservative majority. Mr. Biden responded by creating a commission to study possible changes to the structure of the court, including enlarging it and imposing term limits on the justices.Justice Breyer said he was wary of efforts to increase the size of the court, saying it could erode public trust in it by sending the message that the court is at its core a political institution and result in a tit-for-tat race to the bottom.“Think twice, at least,” he said of the proposal. “If A can do it, B can do it. And what are you going to have when you have A and B doing it?”Such a judicial arms race, the justice said, could undercut public faith in the court and imperil the rule of law. “Nobody really knows, but there’s a risk, and how big a risk do you want to take?” he said.“Why do we care about the rule of law?” Justice Breyer added. “Because the law is one weapon — not the only weapon — but one weapon against tyranny, autocracy, irrationality.”Term limits were another matter, he said.“It would have to be a long term, because you don’t want the person there thinking of his next job,” he said.Term limits would also have a silver lining for justices deciding when to retire, he added. “It would make my life easier,” he said.Justice Breyer said the court should be deciding fewer emergency applications on its “shadow docket,” in which the justices often issue consequential rulings based on thin briefing and no oral arguments. Among recent examples were the ruling on Tuesday that the Biden administration could not immediately rescind a Trump-era immigration policy and a ruling issued a few hours after the interview striking down Mr. Biden’s eviction moratorium.In both, the three liberal justices were in dissent.Justice Breyer said the court should take its foot off the gas. “I can’t say never decide a shadow-docket thing,” he said. “Not never. But be careful. And I’ve said that in print. I’ll probably say it more.”Asked whether the court should supply reasoning when it makes such decisions, he said: “Correct. I agree with you. Correct.”He was in a characteristically expansive mood, but he was not eager to discuss retirement. Indeed, his publisher had circulated ground rules for the interview, saying he would not respond to questions about his plans. But he seemed at pains to make one thing clear: He is a realist.“I’ve said that there are a lot of considerations,” Justice Breyer said. “I don’t think any member of the court is living in Pluto or something.” More

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      in Elections

      California's Impending Recall Election Is Unconstitutional

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      The most basic principles of democracy are that the candidate who gets the most votes is elected and that every voter gets an equal say in an election’s outcome. The California system for voting in a recall election violates these principles and should be declared unconstitutional.Unless that happens, on Sept. 14, voters will be asked to cast a ballot on two questions: Should Gov. Gavin Newsom be recalled and removed from office? If so, which of the candidates on the ballot should replace him?The first question is decided by a majority vote. If a majority favors recalling Mr. Newsom, he is removed from office. But the latter question is decided by a plurality, and whichever candidate gets the most votes, even if it is much less than a majority, becomes the next governor. Critically, Mr. Newsom is not on the ballot for the second question.By conducting the recall election in this way, Mr. Newsom can receive far more votes than any other candidate but still be removed from office. Many focus on how unfair this structure is to the governor, but consider instead how unfair it is to the voters who support him.Imagine that 10 million people vote in the recall election and 5,000,001 vote to remove Mr. Newsom, while 4,999,999 vote to keep him in office. He will then be removed and the new governor will be whichever candidate gets the most votes on the second question. In a recent poll, the talk show host Larry Elder was leading with 18 percent among the nearly 50 candidates on the ballot. With 10 million people voting, Mr. Elder would receive the votes of 1.8 million people. Mr. Newsom would have the support of almost three times as many voters, but Mr. Elder would become the governor.That scenario is not a wild hypothetical. Based on virtually every opinion poll, Mr. Newsom seems likely to have more votes to keep him in office than any other candidate will receive to replace him. But he may well lose the first question on the recall, effectively disenfranchising his supporters on the second question.This is not just nonsensical and undemocratic. It is unconstitutional. It violates a core constitutional principle that has been followed for over 60 years: Every voter should have an equal ability to influence the outcome of the election.The Supreme Court articulated this principle in two 1964 cases, Wesberry v. Sanders and Reynolds v. Sims. At the time, in many states, there were great disparities in the size of electoral districts. One district for a state legislative or a congressional seat might have 50,000 people and another 250,000. Those in the latter district obviously had less influence in choosing their representative.In Wesberry, the court held that congressional districts of widely varying size are unconstitutional because they are akin to giving one citizen more votes than another, denying citizens equal protection as a result. The court extended that reasoning later that year to state legislatures in Reynolds. Today the one-person one-vote principle requires roughly equal-size districts for every legislative body — the House of Representatives, state legislatures, City Councils, school boards — except for the United States Senate, where the Constitution mandates two senators per state.After Chief Justice Earl Warren retired in 1968, he remarked that of all the cases decided during his time on the court, the one-person one-vote rulings were the most important because they protected such a fundamental aspect of the democratic process.The California recall election, as structured, violates that fundamental principle. If Mr. Newsom is favored by a plurality of the voters, but someone else is elected, then his voters are denied equal protection. Their votes have less influence in determining the outcome of the election.This should not be a close constitutional question. It is true that federal courts generally are reluctant to get involved in elections. But the Supreme Court has been emphatic that it is the role of the judiciary to protect the democratic process and the principle of one-person one-vote.This issue was not raised in 2003 before the last recall, when Gray Davis was removed from office after receiving support from 44.6 percent of the voters. But his successor, Arnold Schwarzenegger, was elected to replace him with 48.5 percent of the vote. So Mr. Schwarzenegger was properly elected.This time, we hope that a state or federal lawsuit will be brought challenging the recall election. The court could declare the recall election procedure unconstitutional and leave it to California to devise a constitutional alternative. Or it could simply add Mr. Newsom’s name on the ballot to the list of those running to replace him. That simple change would treat his supporters equally to others and ensure that if he gets more votes than any other candidate, he will stay in office.A court might not want to get involved until after the election, hoping that as in the last recall election, Mr. Newsom will not end up being replaced by a less popular candidate. But that would be unwise. Undoing an unconstitutional election after the fact would be considerably messier than fixing the process beforehand.The stakes for California are enormous, not only for who guides us through our current crises — from the pandemic to drought, wildfires and homelessness — but also for how we choose future governors. The Constitution simply does not permit replacing a governor with a less popular candidate.Erwin Chemerinsky is the dean of the School of Law at the University of California, Berkeley, and the author of the forthcoming book “Presumed Guilty: How the Supreme Court Empowered the Police and Subverted Civil Rights.” Aaron S. Edlin is a professor of law and of economics at Berkeley.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