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    Trump is toying with a third term. Don’t expect the constitution to stop him | Moira Donegan

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    The news cycle has continued in a predictable arc. Last week, Steve Bannon, the far-right provocateur and one-time Donald Trump adviser, said in an interview with the Economist that the president would seek an unconstitutional third term. “Trump is going to be president in 28, and people ought to just get accommodated with that,” Bannon said. (He seemed to be referring to Trump winning the presidential election in 2028 – Trump’s current term will last through 20 January 2029.) “At the appropriate time, we’ll lay out what the plan is.”Like clockwork, Trump commented on the idea soon after, telling reporters following him on Air Force One as he flew from Kuala Lumpur to Tokyo: “I would love to do it.”Initially, he said: “I haven’t really thought about it. But I have the best poll numbers I’ve ever had.” (This is not true; Trump’s approval has sunk considerably, with a new poll released this week showing him at a net -19 point approval rating, the lowest of his second term.) Still, Trump said he would be legally able to run again in a scheme in which he was placed on the ticket as a vice-presidential nominee, only for the puppet placed in the presidential slot to resign once taking office, thereby granting him the presidency. But he suggested that he would prefer to run himself, casting aspersion on the vice-presidential campaign option. “I don’t think people would like that,” he said. “It would be too cute, it wouldn’t be right.” In fact, it would also be unconstitutional, violating the 12th amendment’s prohibition on anyone ineligible for the presidency to be elected as vice-president.In a notable departure from his being loath to disagree with the president about anything at all, the House speaker, Mike Johnson, on Tuesday seemed to pour water on the idea of a third Trump term, noting, correctly, that such an outcome is barred by the constitution. “Well, there’s the 22nd amendment,” he noted. Johnson said that Trump was “trolling” his political enemies; analysis at CNN and the New York Times suggests that Trump is using the third-term comments in part to mute awareness of his own lame-duck status.Johnson is correct that the plain language of the constitution prevents Trump from getting what he says he wants in a third term. But we are in a moment when the plain language of the constitution is being subverted, ignored and read with shocking bad faith by the rightwing legal establishment, from law professors to justices of the supreme court, who have seemed eager to nullify parts of the constitution in order to expand Trump’s prerogatives and indulge his whims. How else but as an attack on the constitutional order are we supposed to understand, to cite just one example, the supreme court’s decision to allow Trump to proceed with his dismantling of the Department of Education – a body created by Congress, which only Congress has the power to dissolve? The prohibition posed by the constitution against a third Trump term does not seem like an especially robust defense in an era when the constitution is effectively being rewritten to grant Trump ever more power, with ever fewer opportunities for accountability. The constitution, after all, is just a piece of paper. And of the nine jurists tasked with settling on its authoritative interpretation, six of them are in the tank for a man hostile to its principles.If obviating the plain and obvious language of the 22nd amendment seems like too embarrassing a move even for this degraded and servile supreme court, consider what the court is already looking to do to the 14th amendment. The plain reading of the amendment, which has been understood and implemented in exactly one way for the past 157 years, is that the constitution confers citizenship to all persons born within the United States – what is called birthright citizenship. But after the Trump administration issued an executive order purporting to nullify this constitutional provision, the supreme court intervened to allow the order to go into effect, and made an unprecedented move to prevent lower courts from easily blocking it.The justices were provided cover, and a degree of plausible deniability, by right-leaning law professors, who had responded to the Maga movement’s calls to end birthright citizenship by assembling a legal literature that claims – through strained, misstated, far-fetched and outright wrong readings of the historical and legal record – that there is a longstanding controversy about the meaning of the 14th amendment’s citizenship clause. There is not. But their papers have created a veneer of intellectual credibility and a pretext for the Trump administration to do what it wants to do anyway: ignore the constitution. (In a briefing filed to the supreme court, asking it to sanction Trump’s attack on citizenship, the Trump administration alludes to “[a] growing body of modern scholarship”, and cites Trump-aligned scholars whose work claiming to limit birthright citizenship the administration’s own actions had provoked.) When the supreme court finally rules on the constitutionality of Trump’s order and the future of birthright citizenship is determined, what these law professors say may well matter more than what the constitution does.And this is why the notion that Trump “can’t” run for a third term, merely because such a thing is unconstitutional, may be a bit naive, or insufficiently alert to the degree to which the American constitutional order has already collapsed. What is and is not constitutional is determined, in effect, by Trump loyalists on the court; they already have an infrastructure of bad-faith enablers who will help them launder their efforts to empower him with flimsy pretenses of legal justifiability. And we already know, too, what happens when the law says that Trump must leave office, but he doesn’t want to. Events have long since made clear that the law is no check on Trump’s power. He’ll have to be stopped by the people instead: not with a lawsuit, but with a movement.

    Moira Donegan is a Guardian US columnist More

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      Too bad I can’t run, but we’ll see what happens, says Trump on unconstitutional third term

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      Donald Trump said “it’s too bad” he is not allowed to run for a third term, conceding the constitutional reality even as he expressed interest in continuing to serve.“If you read it, it’s pretty clear,” Trump told reporters on board Air Force One from Japan to South Korea on Wednesday. “I’m not allowed to run. It’s too bad.”The president’s comments, which continue his on-again, off-again musings about a third term, came a day after the House speaker, Mike Johnson, said it would be impossible for Trump to stay in the White House. “I don’t see a path for that,” the Republican told reporters at the US Capitol on Tuesday.Johnson, who has built his career by drawing closer to Trump, said he discussed the issue with the president and thought he understood. “He and I have talked about the constrictions of the constitution,” he said.The speaker described how the constitution’s 22nd amendment does not allow for a third presidential term, and changing that with a new amendment would be a cumbersome, years-long process of winning over both states and members of Congress.Johnson dismissed worries about a potential third term as “hair on fire” by the president’s critics. “He has a good time with that, trolling the Democrats,” Johnson said.Trump stopped short of characterizing his conversation with Johnson, and his description of the prohibition on third terms was somewhat less definitive.“Based on what I read, I guess I’m not allowed to run,” he said on Wednesday. “So we’ll see what happens.”Trump has repeatedly raised the idea of trying to stay in power. Hats saying “Trump 2028” are passed out as keepsakes to lawmakers and others visiting the White House, and Trump’s 2016 campaign manager, the podcaster Steve Bannon, has revived the idea of a third Trump term.Trump told reporters on Monday on Air Force One that “I would love to do it”.He went on to say the Republican party had “a great group of people” for the next presidential election in Marco Rubio, the secretary of state who was travelling with him, and JD Vance, the vice-president who visited with senators at the Capitol on Tuesday.Asked about a strategy where he could run as vice-president, which would be allowed, and then work himself into the presidency, he dismissed the idea as “too cute”.“You’d be allowed to do that, but I wouldn’t do that,” he said. More

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      Alabama executes man on death row by controversial nitrogen gas method

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      An Alabama man convicted of helping to burn a man alive was executed by nitrogen gas – a form of suffocation which defense lawyers have described as cruel and unusual punishment – on Thursday shortly after the US supreme court signed off on the seventh execution using the contested method.Anthony Boyd, 54, was sent to the death chamber at the William C Holman correctional facility on Thursday evening.“I didn’t kill anybody. I didn’t participate in killing anybody,” said Boyd in his final words, per the Associated Press. “There can be no justice until we change this system … Let’s get it.”He was strapped to a gurney and forced to breathe nitrogen through an industrial mask, fatally depriving his body of oxygen. He was pronounced dead at 6.33pm.On Thursday, the six conservative justices on the supreme court denied Boyd’s petition for a stay of execution over the fierce opposition of their three liberal peers. Sonia Sotomayor, joined by Elena Kagan and Ketanji Brown Jackson, wrote an excoriating dissenting opinion in which she invited readers to use a stopwatch to time four minutes.“Now imagine for that entire time, you are suffocating … That is what awaits Anthony Boyd tonight,” Sotomayor said.Boyd’s execution was the eighth time the gas has been used to kill a man after its initial experimentation by Alabama on Kenny Smith in January 2024. In March, Louisiana became the second state to deploy nitrogen as a killing method, with the execution of Jessie Hoffman Jr.Advocates of the death penalty have embraced the nitrogen method, which they insist is an acceptable alternative to the prevalent execution method in the US, lethal injection. A boycott of medical drugs sold to corrections departments has made it increasingly difficult for states to procure the chemicals used in lethal injections, and as a result they have turned to other methods including nitrogen.But the track record for this new killing procedure has been deeply troubling. The first prisoner to die by the gas, Smith, was seen by witnesses writhing and convulsing on the gurney.At a recent hearing in federal court in which Boyd appealed against his execution by nitrogen, Smith’s widow, Deanna Smith, likened the process of watching her husband die to “watching somebody drown without water”.The second person killed by Alabama using nitrogen, Alan Miller, also visibly shook and trembled for about two minutes in September last year. In the Louisiana execution, Hoffman was recorded still breathing 16 minutes into the procedure.Boyd’s lawyers argued in federal district court that the method was a violation of the eighth amendment of the US constitution, which prohibits cruel and unusual punishment. They said that previous nitrogen executions had caused prisoners “extreme pain and terror of suffocation while still conscious, inflicting gratuitous suffering beyond what is constitutionally permitted”.Earlier this month the federal judge in the case, Emily Marks, declined to stop Boyd’s execution from going ahead. She said she had no doubt that a person deprived of oxygen “experiences discomfort, panic and emotional distress”, but ruled that the constitution does not guarantee a painless death.Boyd was sentenced to death for the murder of Gregory Huguley in 1995. Prosecutors said he was one of four men who kidnapped Huguley after he failed to pay $200 for cocaine, then doused him in petrol and set fire to him.Boyd has always protested his innocence. The prosecution case depended on the testimony of an eyewitness with no forensic evidence connecting Boyd to the crime.“I didn’t kill anybody. I didn’t participate in any killing,” Boyd said when he phoned in to a recent press conference held by his supporters.His death sentence was handed down by a jury vote of 10 to two. Alabama and Florida are the only states that allow people to be sent to death row on the basis of a non-unanimous jury verdict. More

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      ‘Indecency has become a new hallmark’: writer and historian Jelani Cobb on race in Donald Trump’s America

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      “From the vantage point of the newsroom, the first story is almost never the full story,” writes Jelani Cobb. “You hear stray wisps of information, almost always the most inflammatory strands of a much bigger, more complicated set of circumstances.”The dean of Columbia University’s Graduate School of Journalism in New York could be reflecting on the recent killing of the racist provocateur Charlie Kirk. In fact, he is thinking back to Trayvon Martin, a 17-year-old African American student from Florida who was shot dead by a white Latino neighbourhood watch volunteer in 2012.“The Martin case – the nightmare specter of a lynching screaming across the void of history – ruined the mood of a nation that had, just a few years earlier, elected its first black president, and in a dizzying moment of self-congratulation, began to ponder on editorial pages whether the nation was now ‘post-racial’,” Cobb writes in the introduction to his book Three or More Is a Riot: Notes on How We Got Here: 2012-2025.Many of the essays in the collection were written contemporaneously, affording them the irony – sometimes bitter irony – of distance. Together they form a portrait of an era bookended by the killing of Martin and the return to power of Donald Trump, with frontline reporting from Ferguson and Minneapolis along the way. They make a compelling argument that everything is connected and nothing is inevitable about racial justice or democracy.As Cobb chronicles across 437 pages, the 2013 acquittal of Martin’s killer, George Zimmerman, became a catalyst for conversations about racial profiling, gun laws and systemic racism, helping to inspire the formation of the Black Lives Matter movement.Three years later, Dylann Roof, a 21-year-old white supremacist, attended a Bible study session at Emanuel African Methodist Episcopal Church in Charleston, South Carolina, then opened fire and killed nine Black parishioners. Cobb notes that Roof told police he had been “radicalised” by the aftermath of Martin’s killing and wanted to start a “race war”.View image in fullscreenSpeaking by phone from his office at Columbia, Cobb, 56, says: “It was a very upside-down version of the facts because he looked on Martin’s death and somehow took the reaction to it as a threat to white people and that was what set him on his path. Roof was this kind of precursor of the cause of white nationalism and white supremacy that becomes so prominent now.”Then, in the pandemic-racked summer of 2020, came George Floyd, a 46-year-old African American man murdered by a white police officer who kneeled on his neck for almost nine minutes as Floyd said, “I can’t breathe,” more than 20 times. Black Lives Matter protesters took to the streets with demands to end police brutality, invest in Black communities and address systemic racism across various institutions.Cobb, an author, historian and staff writer at the New Yorker magazine, continues: “It was the high tide. A lot of the organising, a lot of the kinds of thinking, the perspective and the work and the cultural kinds of representations – these things had begun eight years earlier with Trayvon Martin’s death.“This was an excruciating, nearly nine-minute-long video of a person’s life being extinguished and it happened at a time when people had nothing to do but watch it. They weren’t able to go to work because people were in lockdown. All of those things made his death resonate in a way that it might not have otherwise. There had been egregious instances of Black people being killed prior to that and they hadn’t generated that kind of societal response.”Cities such as Minneapolis, Seattle and Los Angeles reallocated portions of police budgets to community programmes; companies committed millions of dollars to racial-equity initiatives; for a time, discussions of systemic racism entered mainstream discourse. But not for the first time in US history, progress – or at least the perception of it – sowed the seeds of backlash.“It also was a signal for people who are on the opposite side of this to start pushing in the opposite direction and that happened incredibly swiftly and with incredible consequences to such an extent that we are now in a more reactionary place than we were when George Floyd died in the first place,” Cobb says.No one better embodies that reactionary spirit than Donald Trump, who rose to political prominence pushing conspiracy theories about Barack Obama’s birthplace and demonising immigrants as criminals and rapists. His second term has included a cabinet dominated by white people and a purge of diversity, equity and inclusion (DEI) initiatives.Trump lost the presidential election a few months after Floyd died but returned to power last year, defeating a Black and south Asian challenger in Kamala Harris. According to Pew Research, Trump made important gains with Latino voters (51% Harris, 48% Trump) and won 15% of Black voters – up from 8% in 2020.What does Cobb make of the notion that class now outweighs race in electoral politics? “One of the things that they did brilliantly was that typically politics has worked on the basis of: ‘What will you do for me?’” Cobb says. “That’s retail politics. That’s what you expect.“The Trump campaign in 24 was much more contingent upon the question of: ‘What will you do to people who I don’t like?’ There were some Black men who thought their marginal position in society was a product of the advances that women made and that was something the Republican party said overtly, which is why I think their appeal was so masculinist.”Trump and his allies weaponised prejudice against transgender people to attract socially and religiously conservative voters, including demographics they would otherwise hold in “contempt”. “I also think that we tended to overlook the question of the extent to which Joe Biden simply handing the nomination to Kamala Harris turned off a part of the electorate,” Cobb says.He expresses frustration with the well-rehearsed argument that Democrats became too fixated on “woke” identity politics at the expense of economic populism: “They make it seem as if these groups created identity politics. Almost every group that’s in the Democratic fold was made into an identity group by the actions of people who were outside.“If you were talking about African Americans, Black politics was created by segregation. White people said that they were going to act in their interest in order to prevent African Americans from having access. Women, through the call of feminism, came to address the fact that they were excluded from politics because men wanted more power. You could go through every single group.”Yet it remains commonplace to talk about appealing to evangelical Christian voters or working-class non-college-educated voters, he says: “The presumption implicit in this is that all those people see the world in a particular way that is understandable or legible by their identity, and so there’s a one-sidedness to it. For the entirety of his political career, Trump has simply been a shrewd promulgator of white-identity politics.”That trend has become supercharged in Trump’s second term. He has amplified the great replacement theory, sought to purge diversity, equity and inclusion initiatives and complained that museums over-emphasise slavery. His actions have built a permission structure for white nationalists who boast they now have a seat at the top table.Many observers have also expressed dismay at Trump’s concentration of executive power and the speed and scale of his assault on democratic institutions. Cobb, however, is not surprised.“It’s about what I expected, honestly,” he says, “because throughout the course of the 2024 campaign, Trump mainly campaigned on the promises of what he was going to do to get back at people. They’re using the power of the state to pursue personal and ideological grievances, which is what autocracy does.”skip past newsletter promotionafter newsletter promotionIt is now fashionable on the left to bemoan the rise of US authoritarianism as a novel concept, a betrayal of constitutional ideals envied by the world. Cobb has a more complex take, suggesting that the US’s claim to moral primacy, rooted in the idea of exceptionalism, is based on a false premise.He argues: “America has been autocratic previously. We just don’t think about it. It’s never been useful … to actually grapple with what America was, and America had no interest in grappling with these questions itself. Who has ever managed personal growth while constantly screaming to the world about how special and amazing they are?”Cobb’s book maps an arc of the moral universe that is crooked and uneven, pointing out that, between the end of reconstruction and 1965, 11 states in the south effectively nullified the protections of the 13th, 14th and 15th amendments of the constitution, imposing Jim Crow laws, voter suppression and violence to disenfranchise Black citizens.“The constitution gave Black people the right to vote but, if you voted, you’d be killed and this was a known fact,” he says. “This went on for decade after decade after decade. You can call that a lot of things. You can’t call that democracy. It was a kind of racial autocracy that extended in lots of different directions.”He adds: “We should have been mindful that the country could always return to form in that way, that its commitment to democracy had been tenuous. That was why race has played such a central role in the dawning of this current autocratic moment. But it’s not the only dynamic.“Immigration, which is tied to race in some ways, is another dynamic. The advances that women have made, the increasing acceptance and tolerance of people in the LGBTQ communities – all those things, combined with an economic tenuousness, have made it possible to just catalyse this resurgence of autocracy in the country.”It is therefore hardly unexpected that business leaders and institutions would capitulate, as they have in the past, he says: “We might hope that they would react differently but it’s not a shock when they don’t. Go back to the McCarthy era. We see that in more instances than not, McCarthy and other similar kinds of red-baiting forces were able to exert their will on American institutions.”Cobb’s own employer has been caught in the maelstrom. In February, the Trump administration froze $400m in federal research grants and funding to Columbia, citing the university’s “failure to protect Jewish students from antisemitic harassment” during Gaza protests last year. Columbia has since announced it would comply with nearly all the administration’s demands and agreed to a $221m settlement, restoring most frozen funds but with ongoing oversight.Cobb does not have much to add, partly for confidentiality reasons, though he does comment: “In life, I have tended to not grade harshly for exams that people should never have been required to take in the first place.”He is unwavering, however, in his critique of Trump’s attack on the university sector: “What’s happening is people emulating Viktor Orbán [the leader of Hungary] to try to crush any independent centres of dissent and to utilise the full weight of the government to do it, and also to do it in hypocritical fashion.“The cover story was that Columbia and other universities were being punished for their failure to uproot antisemitism on their campuses. But it’s difficult to understand how you punish an institution for being too lenient about antisemitism and the punishment is that you take away its ability to do cancer research, or you defund its ability to do research on the best medical protocols for sick children or to work on heart disease and all the things that were being done with the money that was taken from the university.“In fact, what is being done is that we are criminalising the liberal or progressive ideas and centres that are tolerant of people having a diverse array of ideas or progressive ideas. The irony, of course, is that one of the things that happens in autocracy is the supreme amount of hypocrisy. They have an incredible tolerance for hypocrisy and so all these things are being done under the banner of protecting free speech.”That hypocrisy has been on extravagant display again in the aftermath of Kirk’s killing by a lone gunman on a university campus in Utah. Trump and his allies have been quick to blame the “radical left” and “domestic terrorists” and threaten draconian action against those who criticise Kirk or celebrate his demise. The response is only likely to deepen the US’s political polarisation and threat of further violence.Spencer Cox, the governor of Utah and a rare voice urging civil discourse, wondered whether this was the end of a dark chapter of US history – or the beginning. What does Cobb think? “There’s a strong possibility that it will get worse before it gets better,” he says frankly.“We’re at a point where we navigated the volatile moment of the 1950s, the 1960s, because we were able to build a social consensus around what we thought was decent and what we thought was right, and we’re now seeing that undone. Indecency has become a new hallmark.“But we should take some solace in the fact that people have done the thing that we need to do now previously. The situation we’re in I don’t think is impossible.” More

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      Justice Ketanji Brown Jackson is trying to warn us about something. Are we listening?

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      Her sharpest words were not in the body of her opinion. They were tucked away in a footnote.That subtle placement speaks volumes about Ketanji Brown Jackson, the supreme court’s newest member and already its fiercest liberal voice.The footnote in question can be found in Trump v Casa, the June ruling that gave a big boost to Donald Trump by clipping the wings of federal judges and limiting their use of nationwide injunctions to block the president’s worst excesses.Over 21 pages of taut dissent against Casa, Jackson decried the 6-3 ruling as “an existential threat to the rule of law” and a “sad day for America”. The ruling was “profoundly dangerous”, she wrote, because it gives Trump permission “to wield the kind of unchecked, arbitrary power the Founders crafted our Constitution to eradicate”.Looking ahead, she added that the decision would “surely hasten the downfall of our governing institutions, enabling our collective demise”.This is strong medicine. But then there is footnote No 5, which takes her dissent to another level entirely.In it, she cites The Dual State by Ernst Fraenkel, a German Jewish labor lawyer who fled the Nazis in 1938. Fraenkel’s book analysed how the Nazis had created two coexistent legal systems.There was the normative one that kept the economy of Germany running as usual. And then there was the separate legal system that operated alongside it, in which anyone deemed an enemy of the regime was stripped of all rights and subjected to arbitrary violence.In the footnote, Jackson quotes The Dual States’s description of the way unchecked power is incompatible with the rule of law:
      See E Fraenkel, The Dual State, pp xiii, 3, 71 (1941) (describing the way in which the creation of a ‘Prerogative State’ where the Executive ‘exercises unlimited arbitrariness … unchecked by any legal guarantees’ is incompatible with the rule of law)
      The footnote is three and a half lines of small print. But its import is booming.By citing Fraenkel’s work, the justice is drawing a parallel between the drift in jurisprudence that is taking place under the combined actions of Trump and the supreme court, and the legal structure of Nazi Germany.View image in fullscreenAziz Huq, a law professor at the University of Chicago, has studied The Dual State and wrote about it in the Atlantic a month before the Casa decision came down. Pointing to Jackson’s footnote, he said that it was clearly charged.“It’s hard not to see that as a kind of warning,” he said.On Monday, the nine justices of the US’s top court will assemble at the start of a new judicial term. They will share the usual niceties, make congenial small talk, then get down to business.It will be a tough time for Jackson, who has carved out a role as the “great dissenter” and has been challenging the conservative bloc that now controls the court.Outnumbered and outgunned by the rightwing supermajority, she and her two other liberal colleagues have had to watch from the sidelines as critical constitutional laws that have been settled for half a century have been torn up by the very court on which they sit.So far, the list of casualties includes the right to an abortion, affirmative action, environmental protections, voting rights and much more.Over the summer, the majority has also supercharged its shadow docket, in a series of temporary emergency decisions that have overturned lower court rulings and handed Trump almost everything he wants. That includes the ability to mass-fire federal employees, summarily deport migrants to war-torn countries, withhold billions of dollars in funds already approved by Congress and more.The liberal justices have granted us rare glimpses into the hardship of their working lives. Last year, Sonia Sotomayor told an audience at Harvard that there were days after the announcement of a ruling when she retreated to her office, closed the door and cried.Asked about her colleague’s mournful behavior a few weeks later, Elena Kagan said: “I’m not much of a crier. I’m more of a wall-slammer.”Jackson, who is 55, has studiously restrained herself in public. In recent book readings and talks she has come across as invariably cheerful and upbeat.She has reserved her evident frustrations – about the current state of the US, its presidency and its top court – exclusively for her dissents. Of which there have been many.Last term, Jackson wrote 10 dissents, more than any other justice including the ever vociferous far-right Clarence Thomas with nine. In her dissents, Jackson has piercingly criticised the court under the chief justice, John Roberts, for undermining the US’s foundations as a country of rules: no one is above the law and everyone has equal access to justice.In addition to her most searing writing in the Trump v Casa case, with its Fraenkel footnote, there have been a stream of other pointed dissents. In July, she castigated the court’s decision to allow Trump to go ahead with mass firings of federal workers, saying that it was “the wrong decision at the wrong moment”.In August, she lamented the decision by Roberts and his fellow rightwingers to allow Trump to cut almost $800m in federal health grants. She said the majority “bends over backward to accommodate” the administration’s wishes.Like Huq, Franita Tolson, dean of the University of Southern California Gould School of Law, sees Jackson’s dissents as sending a message. She is speaking directly to the American people, as well as to lower court judges who will have to interpret and apply the supreme court’s rulings going forward.View image in fullscreen“It is a warning,” Tolson said. “She is warning us about the state of our democracy, about threats to the rule of law. There’s a lot of unfair criticism, but she’s consistent. She believes what she believes, and she says it bravely.”The billion-dollar question is: amid all the noise, will Jackson’s message be heard?Jackson has paid a heavy price for sticking her neck so high above the parapet. She has been scoffed at for somehow stepping outside normal supreme court decorum by speaking out so forcefully.Some of the most caustic attacks have come from her own fellow justices on the right. The most scathing rebuke was made by Amy Coney Barrett, a Trump appointee, who disdainfully dismissed Jackson’s dissent in Trump v Casa as being untethered to conventional legal thinking or “frankly, to any doctrine whatsoever”.The comment must have stung. But Jackson has been accustomed to being criticised and maligned ever since she was a child.In her memoir Lovely One – the title is a translation of her African name, Ketanji Onyika – she recalls as a teenager asking her grandmother: “Why do they think just because I’m Black I’m going to steal from them?”Her grandmother replied: “Guard your spirit, Ketanji. To dwell on the unfairness of life is to be devoured by it.”She has kept that advice close as she has risen up the judicial ladder. “I rejected self-doubt and self-loathing,” she writes. “Instead I chose possibility. I chose purpose.”She has needed such personal armor. A year into her tenancy on the supreme court, she was targeted by Charlie Kirk, the rightwing activist who was murdered last month, as one of four prominent Black women whom he denigrated as “affirmative-action picks”.“You do not have the brain processing power to otherwise be taken really seriously. You had to go steal a white person’s slot to go be taken somewhat seriously,” he said on his podcast, The Charlie Kirk Show.The attacks coming at Jackson from fellow justices on the conservative wing of the supreme court have not been tainted with such overt racism. But some of the brickbats thrown at her have been bruising.Barrett’s riposte to Jackson in the Casa case was dripping with condescension. “We will not dwell on Justice Jackson’s argument,” Barrett wrote in her majority opinion.View image in fullscreenShe slammed Jackson’s dissent as being at odds with more than 200 years of precedent, “not to mention the Constitution itself”. She went on to accuse her of embracing “an imperial judiciary”.Barrett’s criticism was rooted in a textual approach to the law in which judgments are made up-close and line by line. Jackson, by contrast, is stretching for the bigger picture: she is standing back, widening the frame, and seeking to capture the peril of this singularly dangerous moment.The clash between the two justices raises questions. At a time when democracy and adherence to the rule of law is being tested to the breaking point, when the supreme court is under more pressure to safeguard democracy than at any time in recent history, is there a place for decorum? And if there is, who is breaching it?Is it the justice who is warning about the threat posed by an authoritarian-minded president? Or is it her peers who control the court, whom she argues are emboldening him?Jackson’s determination to sound the alarm can be traced in part to her personal history. She was born in Washington DC on 14 September 1970, just a few years after the civil rights movement achieved its crowning glories: the 1964 Civil Rights Act that ended southern segregation, and the 1965 Voting Rights Act that ensured access to the ballot box for African Americans.In her memoir, Jackson recalls growing up in Miami as the “only dark-skinned girl in rooms full of white kids”. Hard work and success in the high school debating team helped her walk into those rooms “with my head held high”.In her letter of application to Harvard (she was accepted as an undergraduate and went on to study at Harvard Law School), she said her dream was to become “the first Black, female supreme court justice to appear on a Broadway stage”.Audacious perhaps, but she did both. She joined the court as its first Black female justice in June 2022, and in December made a one-night guest appearance in the Broadway musical & Juliet.In Lovely One, she describes how she imbibed fundamental legal principles from the former supreme court justice Stephen Breyer, for whom she clerked (it was his seat on the court that she later assumed). He taught her about the importance of seeing legal theory not as a thing in itself, but as part of the great American experiment, with its commitment to government by and for the people and its rejection of monarchs and dictators.Jackson also articulates her sense of responsibility, as a Black woman standing on the shoulders of those who came before her, to protect the achievements of the civil rights struggle. As she noted the day after she was confirmed as a justice in her speech on the south lawn of the White House: “In my family, it took just one generation to go from segregation to the supreme court of the United States.”“She understands the assignment,” said Tolson, the USC School of Law dean. “She understands that she is standing on a legacy that is built on a constitution that works for everybody, not just some people.”View image in fullscreenThat assignment will be tougher than ever as Jackson enters her fourth year on the court on Monday. The nine-month term that lies ahead has the potential to profoundly affect the state of American democracy and the extent of presidential power.Enormous questions are on the docket, including whether Trump gets away with scrapping birthright citizenship and other blatantly unconstitutional moves. At stake are the future of Trump’s tariffs, the fate of hundreds of thousands of people facing deportation and similar numbers of federal workers who could lose their jobs, and the independence of the Federal Reserve.Voting rights are also on the line. Two cases coming before the justices have the potential to gut the final vestiges of the Voting Rights Act, eviscerating one of those crowning glories of the civil rights movement without which Jackson might not have hoped to climb to the top.The spotlight will be intense. The consequences will be immense.“She’s been preparing for this moment,” Tolson said, anticipating further poignant Jackson dissents in the months to come.“There’s a sadness to her dissents,” she added. “A sadness about where we are, a reflection of our politics. But there’s also a resolve. That we don’t have to be like this.” More

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      Every American should read this judge’s stirring rebuke to Trump | Austin Sarat

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      Democracy requires that we do more than look out for our own interests and defend our own rights. Ever since the birth of this nation, its citizens and leaders have echoed Benjamin Franklin’s admonition that “we must all hang together, or, most assuredly, we shall all hang separately.”In Donald Trump’s America, hanging separately seems to be the order of the day. This seems especially true when it comes to his treatment of this country’s millions of non-citizen residents.From the start of his political career, demonizing immigrants has been Trump’s stock in trade. Since his return to office, he has been unusually aggressive in his campaign to round up, detain and deport people whose citizenship status is questionable, and, in some cases, citizens have been caught up in the dragnet.The administration has repeatedly violated the constitution by targeting people because of how they look or the sound of their accents. It has even singled them out because of what they have said or written.On 30 September, Judge William Young of the United States district court of Massachusetts made clear that when it comes to freedom of speech, the constitution does not distinguish between people born in the United States and those who have come here as immigrants. His decision in American Association of University Professors v Rubio offers both a stirring civics lesson and an unusually personal rebuke against the Trump administration. The court found that the Trump administration had violated the right to free speech in its push to detain and deport pro-Palestinian foreign scholars.In his opinion, the judge went beyond the usual bounds of a judicial decision to note that the president “ignores everything … The Constitution, our civil laws, regulations, mores, customs, practices, courtesies – all of it; the President simply ignores it all when he takes it into his head to act”. Young added: “While the President naturally seeks warm cheering and gladsome, welcoming acceptance of his views, in the real world he’ll settle for sullen silence and obedience. What he will not countenance is dissent or disagreement.”The judge also accused the president of “bullying”.Legal purists who might applaud the judge’s reading of the constitution will be offended by seeing that kind of language in a judicial opinion. But what he did helps frame the danger Trump poses to the rights of immigrants in a way that connects them to the rest of us.Bravo, Judge Young.Recall the case of Mahmoud Khalil, a green card holder and graduate of Columbia University. He was arrested and detained in March for participating in pro-Palestinian protests on the Columbia University campus. He was held for more than a hundred days in Louisiana.As his lawyer said on Democracy Now: “If free speech means anything in this country,” he noted, it means “government agents can’t pick you up off the street and throw you into jail because of what you’ve said.” But that is exactly what the administration did, hoping to make an example out of Khalil and send a chilling message to other immigrants.Or how about Rümeysa Öztürk, a Tufts University graduate student, arrested by masked Ice agents for writing an op-ed calling on Tufts to do something to protect human rights in Gaza? As a Washington Post story notes, “Ozturk had committed no crime, yet her detention was a priority for the new Trump administration. US officials used the immigration system in unprecedented ways to covertly research and detain noncitizen students, relying on an investigative arm of the Department of Homeland Security whose work traditionally has focused on crimes such as drug smuggling and human trafficking.”“The effort to deport pro-Palestinian student activists,” the Post reports, “represented the Trump administration’s first major challenge to free-speech norms in the United States.” It had to know that what it was doing violated the First Amendment but went ahead anyway under the pretext that it was acting to prevent or punish terrorist activities.This is not the first time that immigrants have been punished for saying or doing things that an administration labelled dangerous. But since the middle of the 20th century, the supreme court has held that the government cannot deport people because of their views or what they say.At that time, Justice William Douglas explained that “freedom of speech and of the press is accorded aliens residing in this country” and that “the utterances made by … [them] were entitled to that protection”. Justice Frank Murphy joined him and stated: “Once an alien lawfully enters and resides in this country he becomes invested with the rights guaranteed by the Constitution to all people within our borders.”Young cited those views in his own opinion. “Noncitizens’ speech rights are,” he said, “identical to those of citizens.” He argued: “Political speech is not, on its own, a facially legitimate reason for expelling persons from this country.”After laying out in great detail all the things the Trump administration has done to violate that principle, including its mistreatment of Khalil and Öztürk, he called out Trump for ignoring the constitution and acting as if “the First Amendment’s protection of freedom of speech applies to American citizens alone”.Young called the case he was deciding “perhaps the most important ever to fall within the jurisdiction of this district court”.Citing the language of the first amendment – “Congress shall make no law … abridging the freedom of speech” – the judge insisted: “‘No law’ means ‘no law.’ The First Amendment does not draw President Trump’s invidious distinction” between citizens and non-citizens, “and it is not to be found in our history”, Young wrote.That reference to “our history” suggests that Trump’s treatment of non-citizens is un-American. But Young was not finished.He added: “Triumphalism is the very essence of the Trump brand. Often this is naught but hollow bragging: ‘my perfect administration,’ wearing a red baseball cap in the presidential oval office emblazoned ‘Trump Was Right About Everything,’ or most recently depicting himself as an officer in the First Cavalry Division.”He criticized Trump for his “triumphal, transactional, imperative, bellicose, and coarse” language that “seeks to persuade – not through marshaling data driven evidence, science, or moral suasion, but through power”.Near the end of his opinion, Young quotes former president Ronald Reagan. “Freedom,” Reagan said, “is a fragile thing and it’s never more than one generation away from extinction. It is not ours by way of inheritance; it must be fought for and defended constantly by each generation, for it comes only once to a people …”Returning to Trump, the judge goes on to say: “I’ve come to believe that President Trump truly understands and appreciates the full import of President Reagan’s inspiring message – yet I fear he has drawn from it a darker, more cynical message … [and that he] believes the American people are so divided that today they will not stand up, fight for, and defend our most precious constitutional values so long as they are lulled into thinking their own personal interests are not affected.”By going beyond the precise issue in this case, the free speech rights of immigrants, and going after Trump, Young’s opinion helps frame threats to the rights of immigrants in a way that connects them to the rest of us. He hopes to rekindle the spirit of Reagan and inspire Americans to prove Trump wrong by showing that they will “stand up, fight for, and defend our most precious constitutional values”.

      Austin Sarat, William Nelson Cromwell professor of jurisprudence and political science at Amherst College, is the author or editor of more than 100 books, including Gruesome Spectacles: Botched Executions and America’s Death Penalty More

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      ‘Unprecedented in history’: global academic freedom group warns of dismantling in US

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      A global academic freedom group has warned that the Trump administration’s assault on universities is turning the US into a “model for how to dismantle” academic freedom.“We are witnessing an unprecedented situation – really as far as I can tell in history – where a global leader of education and research is voluntarily dismantling that which gave it an advantage,” said Robert Quinn, executive director of Scholars at Risk (SAR).In its annual Free to Think report, the Academic Freedom Monitoring Project at (SAR), an international network devoted to the promotion of academic freedom worldwide, counted some 40 attacks against academic freedom in the US in the first half of 2025, ranging from the government’s revocation of research funds to the detention and attempted deportation of foreign scholars over their political views, as well as a “torrent” of executive, legislative and other actions targeting diversity, equity and inclusion initiatives and other programs.The report noted that the data points to a continued erosion of academic freedom in the US after it counted 80 instances of pressure against universities in the prior year. While most of those came from state governments and local actors, the “nature of these attacks shifted after January 2025” to pressure from the federal government following the re-election of Donald Trump, and his administration’s efforts to control university admissions, hiring, research, teaching and disciplinary processes, the report noted.The SAR report analyzed 395 attacks on higher education leaders, faculty, staff and students in 49 countries between mid-2024 and mid-2025, including targeted killings, disappearances, arrests and prosecutions, as well as firings, travel restrictions and administrative measures. In addition to the US, the report highlights “concerning developments” in 15 other countries – including Bangladesh, where student-led anti-government protests were met with a brutal crackdown that led to the deaths of up to 1,400 people, and Serbia, where authorities threatened to defund public universities and withheld the salaries of faculty who supported a student-led movement against government corruption.Globally, the picture for academic freedom painted in the report is grim.“The space for academic freedom has shrunk at an accelerating pace over the past decade,” the report concludes. “Even in societies that have long had strong and stable democratic institutions, elected officials with autocratic impulses are using both the levers of democracy and extralegal administrative measures to undermine democratic institutions, including universities.”In the US, the war in Gaza, and widespread campus opposition to it, has offered a pretext for the targeting of universities, students and faculty whose values and views don’t align with the government’s agenda. Before 2023, SAR tallied an average of 15 to 20 attacks on academic freedom, many driven by elected officials at the state and local levels.“The pressure on the higher education space has been going on for decades,” said Quinn, noting that before the targeting of pro-Palestinian views and diversity initiatives, universities and scholars faced attacks over critical race theory and gender studies. “That being said, there’s no question that the administration is using as a bold pretext the allegations of antisemitism centered around the Palestinian issue to justify in many cases extralegal activity to crack down on the space for independent thought.”Trump’s return to power marked a “turning point”, the report notes, including more than 30 pieces of legislation related to higher education introduced during the first 75 days of his administration, executive orders eliminating diversity and gender equity programming, antisemitism investigations of more than 60 universities that flouted established processes, the freezing of billions in federal research funds and new caps on student loans and restrictions on Pell grants’ eligibility.The report also underscored the negative impact on global education of the Trump administration’s abrupt cancellation of international students’ visas and new restrictions for foreign applicants, as well as cuts at the United States Agency for International Development (USAID) that devastated higher education and research initiatives from Africa to Afghanistan. More

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      The US government is facing a crisis of legitimacy | Daniel Mendiola

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      Between anti-immigrant zeal and a general disdain for any rules whatsoever, the Trump administration has shredded the constitutional order that makes government legitimate.This is now a legitimacy crisis.There are different philosophical approaches to government legitimacy, but in the United States, the most straightforward explanation is the social contract. Often associated with Enlightenment philosophers such as Locke and Rousseau and extremely influential with US founders, the social contract refers to the idea that the government requires the consent of the governed to be legitimate.Crucially, in exchange for this consent, the government accepts certain limits on what it can do. In other words, the government also has to follow the rules.The US has suffered crises of legitimacy before. Arguably, the 1964 Civil Rights Act emerged from just such a crisis. At a base level, the act conceded that to be legitimate, the government needed to actually recognize the rights of all its citizens – not just those of a certain race. It didn’t fix everything, but it was an important step in creating a stronger social contract for the next generation.The Trump administration, however, has reversed course on civil rights, abandoned limited government and eviscerated the social contract beyond recognition. From defying courts, to attacking judges, to capriciously revoking legal immigration statuses, to executing suspected drug smugglers, there is no shortage of examples.One example that deserves a lot more attention than it is currently receiving, however, is the horror story of Trump’s collaboration with a megaprison in El Salvador.To summarize, in March, the Trump administration forcibly sent more than 250 people, mostly Venezuelans accused of having ties to the Tren de Aragua gang, to El Salvador to be detained in a paid arrangement with Salvadorian president Nayib Bukele. Investigative reporting quickly confirmed that the entire operation – ostensibly to target dangerous criminals – was based on lies: only a small percentage of the targets had any criminal record at all, accusations of gang affiliations came from spurious evidence, and many of the detainees had followed the rules to enter the country legally.Nonetheless, instead of enjoying the rights guaranteed by US law, they suddenly faced imprisonment and alleged torture. Lower courts tried to halt the flights, but the Trump administration acted anyway.All of this would be horrifying enough as an isolated incident, but the legal saga surrounding the case has further disturbing implications. At first, the administration justified its actions through a controversial 18th-century law allowing the government to expel “alien enemies” in times of war – even though the country was not at war, and these were not “alien enemies”.However, the administration soon switched to a different argument that might be described like this: it doesn’t matter how many laws we broke – as long as the victims end up in a prison in a foreign country, US courts have no power to stop us. Also, we may do the same to US citizens.When the Trump administration first made these claims, news agencies covered them with much alarm. However, commentators since have avoided stating an uncomfortable truth: the administration was right. Apparently, it didn’t matter how many laws they broke. No one stopped them, nor have they faced any consequences.Significantly, the supreme court has played a critical role in this legitimacy crisis, not only by giving the Trump administration an unprecedented series of wins – often employing mind-boggling logic and blatant distortions of plain text – but also gutting the mechanisms that courts have to stop the executive branch when it gets caught doing illegal things.Here the battle over injunctions is revealing. In normal times, if the government gets caught doing something illegal, then judges have the power to issue an injunction to make the government actors in question stop. Government officials may appeal to a higher court, but in the meantime, the injunction prevents them from continuing to do harm while the case plays out.Now, think about a reality where injunctions don’t exist. If courts can’t issue an injunction to stop the government from doing illegal things, then no matter how blatantly the government is violating people’s rights, it can keep doing it unimpeded so long as the case stays tied up in appeals – a process that often takes years. In this scenario, law exists in theory, but there are virtually no limits to what the government can do in practice.This is shockingly close to the reality that the supreme court has now created. By rushing to overturn injunctions with no regard to who is being harmed, as well as creating seemingly arbitrary technicalities to prevent future injunctions, the message from the supreme court is clear: It doesn’t matter how many laws they broke. Now that Trump is in office, courts are simply not supposed to stop executive officials from putting Trump’s agenda into practice, regardless of how unlawful those practices might be.The extreme inability of our government to police itself becomes even clearer when it is placed alongside Brazil – the second-largest democracy in the Americas – where the former president Jair Bolsonaro was recently convicted for an attempted coup: after losing re-election in 2022, Bolsonaro tried a variety of tactics to stay in power, including inciting his followers to swarm government buildings to physically stop the peaceful transfer of power. If that sounds familiar, that’s because it was, indeed, strikingly similar to what Trump did in the January 6 riots after losing the 2020 election.Now, consider the difference in how our respective constitutional systems handled this. In the US, the supreme court not only blocked any potential trial for Trump’s role in the highly visible attempt to overthrow the government; it also took the opportunity to give him sweeping immunity for just about anything else. According to the logic of the majority decision, it doesn’t matter how many laws he broke. Being president is hard, and it is even harder if he has to worry about getting in trouble for breaking the law. So he should just have a virtual license to commit crimes. That way, he can take “vigorous, decisive” action.The Brazilian supreme court took a strikingly different approach. Apparently, it does matter how many laws Bolsonaro broke. Prosecutors presented strong evidence that he broke the law, so the supreme court decided that he should be prosecuted.skip past newsletter promotionafter newsletter promotionTellingly, this infuriated the Trump administration, which heaped criticism and sanctions on Brazilian judges in response. Brazilian courts refused to back down, however, and the trial ultimately resulted in a conviction.After watching this play out, I can’t help but wonder: what would it look like if my country had the courage to hold a lawless executive accountable?Here I want to be clear that in posing this question, I am calling for peaceful action. People will have to decide for themselves what this peaceful action looks like, though there is strength in numbers, and I think those numbers exist. As I have written previously, the nationwide protests against capricious and unlawful immigration raids are a testament to how many people are already fed up, and looking for ways to remind the government that it owes us rights.I also don’t think that questioning the government’s legitimacy right now is radical, partisan or even unpatriotic. In fact, nothing I am saying here contradicts what I was taught about legitimate government in my fifth grade social studies class at a conservative, patriotic public school in rural Texas. It is simply our civic duty to call out the government when it strays from the social contract.What’s giving me hope nowIn the classic Latin American protest anthem Me Gustan los Estudiantes, the celebrated Chilean composer Violeta Parra lauds the indomitable spirit of students. “Long live the students!” the song declares. They are the “garden of our joy” because they fearlessly defend truth, even when those in power try to force them to accept lies.Students give me hope as well.Overwhelmingly, the students that I have worked with over the years have shown themselves to be insightful thinkers with an unyielding dedication to truth, empathy, and solidarity. This is hopeful for many reasons, not the least of which being that this seems to terrify the people in power. Indeed, the same architects of our legitimacy crisis are also waging an aggressive campaign to squash campus protests, restrict institutional autonomy, and generally abolish academic freedom. Clearly, academic institutions have the potential to serve as a counterweight to government abuses. Otherwise, why would a lawless government be trying so hard to suppress us?Sadly, too many university leaders are now sacrificing academic legitimacy by caving to government pressure. The situation is bleak on this front as well, yet the battle is far from over.Our best hope: we need to be as fearless as our students.

      Daniel Mendiola is a professor of Latin American history and migration studies at Vassar College More

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      The Guardian view on Donald Trump’s hate for opponents: practising politics the wrong way | Editorial

      by

      At Sunday’s memorial for the rightwing activist Charlie Kirk, Donald Trump paid a peculiar tribute. Having quoted Mr Kirk’s words of forgiveness, he put aside the script. “That’s where I disagreed with Charlie,” he said. “I hate my opponents, and I don’t want the best for them.” It was a stark and clarifying admission. Mr Trump does not seek to criminalise hate speech so much as to criminalise speech he hates.The US is being dragged into a state of emergency. Speech is framed as terrorism. Satire is rebranded as enemy propaganda. Employers punish workers for personal posts. The predictable result is a chilling climate of surveillance and reprisal, in which citizens learn to keep quiet. The assassination is not just being used to police manners; it is being used to reconstruct the public square so that dissent equals disloyalty, and disloyalty is treated as a security threat.Hannah Arendt warned of the existential peril in blurring the line between truth and lies: then truth doesn’t stand; it becomes optional. Mr Trump’s reported falsehoods about paracetamol and autism will harm mothers, stigmatise families and erode trust in medicine. But in Trumpland such costs are outweighed by the political payoff of pitting supporters against the scientific “establishment”.His assault is twofold. First, speech is being weaponised through partisan media, online influencers and harassment networks that seek to capture attention while corroding the conditions for open dialogue. Second, state power is weaponised by cowing social media platforms, threatening network licences and politicising information. Handing TikTok to rightwing billionaires is a morbid symptom of democratic decline.“Authority is to be controlled by public opinion, not public opinion by authority,” said the US supreme court. That defines the first amendment: citizens, not the state, decide which ideas survive, with narrow limits like fraud or defamation. By presuming to define “truth”, Mr Trump subverts self-government. Hate rallies thrive in Trump’s America because, since 1969, speech is unprotected only if intended and likely to incite “imminent lawless action”.The US is a free-speech outlier. Other democracies accept broader, more collective trade‑offs to protect vulnerable groups, maintain public order and prevent incitement and harassment. Each country is different but the bargain is similar. Speech is presumptively free, yet words are considered acts with foreseeable harms. Words can mobilise mobs, direct harassment and orchestrate violence. The point isn’t to shield anyone’s feelings, it’s to make coexistence possible.Mr Trump has inverted the American model. Rather than robust exchanges under neutral rules, he selectively rewards allies while degrading the conditions of honest debate. All this while the infosphere is saturated with viral lies, making it easier to justify punitive state action “to keep order”. That is how an emergency becomes a system.The answer is not the censor’s pen nor a free-for-all. It requires resilient democratic plumbing; social media platforms made accountable for publishing harms; and properly defining dangerous conduct. The aim – particularly in the US – must be to preserve free expression as the bedrock of self-government while dismantling the machinery that warps attention toward outrage and partisan mobilisation. Mr Trump’s speech was disgraceful. When power learns to hate its opponents, democracy will fail. More