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    How did we get all this gerrymandering? A short history of the Republican redistricting scheme

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    The gerrymandering wars are back. Perhaps they never really went away.Extreme GOP gerrymanders have remade American politics over the last 15 years. They have locked Republicans into office in state legislatures nationwide, even in purple states when Democratic candidates win more votes. They have delivered a reliable and enduring edge to the GOP in the race for Congress.Perhaps most importantly, they have entrenched hard-right lawmakers and insulated them from the ballot box, allowing them to enact conservative policies on reproductive rights and public education that are rejected by majorities of voters.Now Texas Republicans, spurred by Donald Trump, have readied a brazen mid-decade power grab that would award them as many as five additional seats in Congress. This would be a dramatic boost heading into the midterms, since the GOP only holds a three-seat majority. California has threatened to retaliate with a mid-decade redraw of its own. Other blue state governors are talking tough as well. But Republicans have more targets. They won’t stop in Texas. They will probably redraw Ohio, Missouri, Indiana and Florida as well.How did we get here? How did gerrymandered lines, rather than voters, gain the power to determine winners and losers?View image in fullscreenWhile politicians have gerrymandered since the dawn of the American experiment – even before it got its name from then Massachusetts governor Eldridge Gerry’s party crafting state senate districts around Boston that looked like salamanders – the modern story really begins in 2008 with the election of Barack Obama and a blue wave that delivered Democrats trifecta power and even a US Senate supermajority.On television that election night, even the sharpest Republican analysts spoke of unbreakable emerging coalitions and demographic changes that could provide Democrats with majorities for a generation. It didn’t exactly work that way. A handful of savvy Republican strategists recognized that while 2008 may have been historic, 2010 could be much more consequential. It would be a census year. And after every census, the nation redistricts every state legislature and US House seat.A lightbulb went off at the Republican state leadership committee (RSLC). Executive director Chris Jankowski recognized the opportunity first: target states where the legislature controls redistricting. Pour millions into underfunded state legislative races. Drown Democratic incumbents. Flip as many chambers as possible. Redraw the lines. If Republicans could pull it off, they would go from demographically challenged to the catbird seat for a decade.“We should do this,” Jankowski remembered, in an interview for my book Ratf**ked. “I think we can get millions – and you don’t have to do anything other than what you were going to do anyway.”They called this Redmap, short for the Redistricting Majority Project. It transformed the nation.Karl Rove laid out the plan in a March 2010 Wall Street Journal op-ed that laid out the specific small towns in Indiana, Pennsylvania and Ohio where national Republicans would come gunning for small-town Democrats. His message: control redistricting, control Congress. “Republican strategists are focused on 107 seats in 16 states. Winning these seats would give them control of drawing district lines for nearly 190 congressional seats.”Despite Rove’s announcement, Democrats never saw it coming. The 2010 Tea Party wave placed all those seats and more in the GOP column. Republicans took over in Pennsylvania, Michigan, North Carolina, Indiana, Alabama, Wisconsin and Ohio, among others, adding them to trifecta control in states like Texas and Florida. The following year, the RSLC paid master GOP mapmaker Thomas Hofeller to draw new lines in crucial states. New computer mapping software and voluminous new voter data turned redistricting into a video game. Republicans won, voters lost.It all paid off with a high score in 2012. Obama won re-election by a slightly smaller margin than 2008, but Democrats added seats in the US Senate. Republicans, thanks to their new lines, held the House and it wasn’t close. They won 234 seats to the Democrats’ 201 – even though Democrats won 1.4m more votes nationwide. Or look at the impact this way. Obama carried Ohio, Florida, Virginia, Pennsylvania, Wisconsin and Michigan. Republicans drew congressional lines in those states and won 64 of 94 seats.The modern, technologically enhanced gerrymanders held throughout 2014 and 2016. Even when Democratic candidates won more votes, they could not budge the state legislature in Michigan, for example, or an astounding 13-5 edge in Pennsylvania’s congressional delegation.This futility and frustration at the ballot box turned into a national grassroots campaign to end gerrymandering. In 2018, grassroots movements in Ohio, Michigan, Missouri, Utah and Colorado established citizen commissions or other nonpartisan processes to draw lines. Meanwhile, the same technology that allowed partisans to crack and pack voters with such precision also allowed data scientists and courts to see through extreme gerrymanders. Voters and public interest law firms won new maps in states including Florida (ahead of 2016) and Pennsylvania (2018), and won lower-court decisions in Ohio, Michigan, Maryland, North Carolina and Wisconsin that struck down extreme maps. This helped Democrats take back the House in 2018 without actually defeating the gerrymander: almost three-quarters of the seats they won were drawn by commissions or courts, or arose from new maps won via litigation.In states such as Wisconsin, the gerrymanders held strong: in 2018, Democrats swept the US Senate, governor’s offices in every statewide race and 53% of the state assembly vote. Republicans won 64% of the seats with just 45% of the vote.Polls showed that huge majorities of voters across party lines despised gerrymandering. Reform efforts won in red states and in blue states with big majorities. And in federal courts, judges appointed by presidents of both parties believed that they had all the tools they needed to strike down maps that decimated true political competition, and took aim at the radical outliers drawn by both parties. Reformers and voters had real momentum.Enter John Roberts.In 2019, the chief justice – whose antipathy to voting rights has been central to his life’s work ever since he arrived in Washington in 1982 as a young aide in Reagan’s Department of Justice – destroyed hopes that the federal courts would help defend voters and create a national standard.In a case from North Carolina called Rucho v Common Cause, a 5-4 majority ruled that partisan gerrymandering was a nonjusticiable political issue. The decision, written by Roberts, closed the federal courts to future claims at the precise moment that they’d become the most important part of the solution. After all, politicians have long proven unwilling to reform the very process that elected them and helped entrench them in office. Roberts, however, said the federal courts could no longer be involved, because there was no clear and manageable standard. Multiple federal judges, of course, pointed to multiple clear standards. And even if Roberts didn’t find a standard to his liking, nothing required him to leap to making the issue nonjusticiable.The decision signed the death warrant for reform. Without the threat of a national, court-enforced standard, states had no reason to behave themselves. In 2021, Democrats – now fully awakened to the problem – claimed seats in Illinois (14 of 17) and Maryland (seven of eight) and took extra seats in Oregon, Nevada and New Mexico. Republicans, already enjoying an edge, claimed four in Florida then worked the margins in Texas, Tennessee, Indiana, Oklahoma, Georgia and Utah. According to the nonpartisan Brennan Center, the GOP had a 16-seat advantage this decade thanks to gerrymandering. While some suggested that the national congressional map had become much more balanced, this is misleading: any balance in the national map arrived because many more state maps had been gerrymandered, harming more voters, everywhere.Both parties knew increasingly partisan state courts were unlikely to block partisan power plays. In New York, a Democratic court allowed Democrats to remake the map before 2024. In North Carolina, the state supreme court upended a fair map and reversed a year-old decision banning partisan gerrymandering as soon as they took partisan control. Given free rein, the GOP drew themselves three extra seats and a 10-3 advantage. Those three seats, by the way, match the margin of the GOP House majority. That’s the power of one state map.The absence of any federal deterrence also encouraged state lawmakers to defy courts, commissions and state constitutions. In Ohio, lawmakers stiff-armed the state supreme court when it attempted to enforce anti-gerrymandering provisions enacted decisively by 75% of voters in a 2018 initiative. In Arizona, Republicans gamed the independent commission by stacking the commission that selects the supposedly nonpartisan chair who controls the tie-breaking vote. Utah simply ignored the 2018 vote establishing a nonpartisan commission. They all got away with it.Which brings us to the current moment. Trump kickstarted this new redistricting arms race when he demanded that Texas flip Democratic seats to the GOP. California and New York have talked tough about suspending their commissions and retaliating with gerrymanders of their own. That’s a long and complicated road, however: California voters would need to agree this fall. New York’s constitution couldn’t be amended before the 2028 cycle. Meanwhile, Democrats have few other likely targets, and Republicans look likely to continue their push into Ohio, Missouri, Indiana and Florida – and even Kansas, Kentucky and New Hampshire, if they choose.Frustrated Democrats have few appealing options. Such are the ongoing consequences of falling asleep 15 years ago and failing to counter Redmap. It has done precisely what the Republicans said it would do – with greater success and a longer lifespan than they ever could have imagined. More

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      The US supreme court paved the way for Texas’s gerrymandering mess | Steven Greenhouse

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      With Texas Republicans rushing to fulfil Donald Trump’s wish to gerrymander to the max, many Americans are no doubt wondering why there isn’t some referee to stop this hyperpartisan race to the bottom that is poisoning our democracy. The supreme court should be the referee that puts a halt to this ugly, undemocratic mess, but in a shortsighted, 5-4 ruling in 2019, the court’s conservative majority essentially told state legislatures that anything goes when it comes to gerrymandering. Their message was: no matter how extreme the gerrymandering, we’ll look the other way.Writing the majority opinion in that case, Rucho v Common Cause, chief justice John Roberts declared that gerrymandering was a political matter that federal courts shouldn’t intervene in (unless it involves racial discrimination). Many legal experts said the conservative justices were defaulting on the court’s responsibility to prevent absurdly unfair, undemocratic elections, where the fix is in even before people vote. In a prescient dissent, justice Elena Kagan warned that the huge permission slip the court was giving to gerrymandering would encourage “a politics of polarization and dysfunction” and might “irreparably damage our system of government”.Trump and his team have been shrewd enough and shameless enough to seek to take maximum advantage of that ruling, and in doing so, they’re showing how right Kagan was. Trump and company are seriously damaging our system of government and our democracy by seeking to insulate Trump from the majority’s will, an expected Democratic-leaning vote in the 2026 congressional elections. Trump and team are also ratcheting up the “polarization and dysfunction” Kagan warned us about. Democratic lawmakers have fled Texas to prevent a GOP power grab, while Texas governor Greg Abbott has called for their arrest and removal from office.Gerrymandering further fuels polarization because November elections become largely irrelevant for choosing candidates. With gerrymandering, what counts are the party primaries, and there, the extremes, rather than moderate swing voters, determine who the winning candidate is. This in turn leads to increasingly polarized, dysfunctional legislative bodies, like the House of Representatives, where there’s plenty of performative, partisan showboating and very little legislation passed.In Rucho, the conservative majority declined to overturn a gerrymander in which the North Carolina GOP had rigged congressional districts so that Republicans would win 10 of the state’s 13 House seats even when the GOP won a bare majority of the statewide vote. (The case also involved some flagrant gerrymandering by Maryland’s Democrats.) It’s thanks to Roberts and the conservative justices’ indifference to gerrymandering that a person close to Trump could say that the administration’s attitude was “Maximum warfare, everywhere, all the time”.Seeking to maximize the chances of maintaining Republican control of the House, where the GOP has a mere three-seat majority, many Republicans also want GOP-led legislatures in Missouri, Florida, Ohio and Indiana to gerrymander to the max. In Texas alone, Trump hopes the GOP can pick up five House seats through redistricting. Even though Trump beat former vice-president Kamala Harris by 56% to 42% in Texas in 2024, the newly unveiled gerrymander aims to guarantee Republicans 30 out of Texas’s 38 House seats (a 79% to 21% ratio). Democrats accuse Trump and the Texas GOP of cheating, and it should be no surprise that they want to respond to fire with fire, with the Democratic governors of California, Illinois and New York saying that they, too, will push through gerrymanders.This unseemly electoral arms race results directly from the supreme court’s dodging of responsibility. In Rucho, chief justice Roberts shrugged at gerrymandering, saying that redistricting shenanigans were part and parcel of US history. Pointing to examples of gerrymandering from the 1780s and early 1800s, Roberts pooh-poohed this phenomenon, writing: “Partisan gerrymandering is nothing new. Nor is frustration with it.” He also voiced skepticism and snark about judges’ use of standards and election experts’ predictions to determine when partisan redistricting crosses the line into unconstitutional gerrymandering that violates the 14th amendment’s equal protection clause.In contrast to Roberts’ who-cares casualness, justice Kagan was an I’m-warning-you Cassandra. In a stinging dissent joined by justices Ruth Bader Ginsburg, Stephen Breyer and Sonia Sotomayor, she correctly predicted that terrible things would result from Roberts’s decision. She wrote that his opinion showed “a saddening nonchalance about the threat that such [extreme] redistricting posts to self-governance”.Kagan didn’t mince her words about how Roberts’s decision threatened our democracy and undermined the ability of Americans to elect a government of their choosing. “For the first time ever,” she wrote, “this Court refuses to remedy a constitutional violation because it thinks the task beyond judicial capabilities. And not just any constitutional violation. The partisan gerrymanders in these cases deprived citizens of the most fundamental of their constitutional rights: the rights to participate equally in the political process, to join with others to advance political beliefs, and to choose their political representatives. In so doing, the partisan gerrymanders here debased and dishonored our democracy, turning upside down the core American idea that all governmental power derives from the people.”In Rucho, Roberts wrote that the constitution neither expressly bans gerrymandering, nor points to a standard to determine when partisan redistricting is so unfair that it becomes unconstitutional. He suggested it would be a grievous, arbitrary wrong to select some legal or mathematical standard to determine when gerrymanders are illegal. Roberts wrote: “There are no legal standards discernible in the Constitution for making such judgments, let alone limited and precise standards that are clear, manageable, and politically neutral.”Today’s headlines make clear that Roberts and his Rucho decision have left us with a far more grievous wrong. It has encouraged ultra-partisan gerrymandering that is sabotaging our democracy and the majority will – in this case with an eye to preventing Democrats from winning back control of the House and serving as a check on Trump, the most authoritarian president in US history. If Texas Republicans prevail and enact their gerrymander, despite Democratic lawmakers’ exodus from the state, then the votes of millions of Texas Democrats will become meaningless, their votes in effect erased by the Trump/GOP gerrymander juggernaut. The same thing will happen to many Republican voters in states where Democrats gerrymander.Roberts was dismayingly myopic in failing to realize how his Rucho decision would someday lead to a push for maximum, hyperpartisan redistricting and how new electoral and computer models would make gerrymandering far more sophisticated – and sinister. Roberts was flatly wrong when he wrote that there can’t be “clear, manageable, and politically neutral” standards that define when redistricting crosses the line from mere partisanship to over-the-top, undemocratic, grossly unfair ultra-partisanship. One study put forward a smart standard that says gerrymandering crosses the line into illegality when a certain, high percentage of votes are wasted, deliberately rendered meaningless through partisan redistricting.What we’re seeing right now in Texas is one political party seeking to squeeze every last drop out of a filthy gerrymandering sponge – fair play and democracy be damned. Foreseeing ugly episodes like this, Kagan cited the vision of James Madison, the main author of the constitution, who once wrote that the “power is in the people over the Government, and not in the Government over the people”.The whole purpose of Trump’s gerrymandering power grab is to prevent the people from having power over him and his increasingly unpopular government. Unfortunately, Roberts gave Trump a green light for such a power grab.Like Trump, Roberts hates admitting mistakes, but it’s not too late for him to admit how shortsighted and harmful his Rucho ruling was. Nor is it too late for the chief justice to get the court to set some sane, healthy limits on gerrymandering to safeguard our democracy as well as Madison’s vision that the “power is in the people over the Government”.

      Steven Greenhouse is a journalist and author, focusing on labour and the workplace, as well as economic and legal issues More

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      The supreme court is giving a lawless president the green light | Steven Greenhouse

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      Just when we thought the US supreme court couldn’t sink any lower in bowing and scraping to Donald Trump, it issued a shocking order last week that brushed aside important legal precedents as it ruled in the president’s favor. In that case, the court’s rightwing supermajority essentially gave Trump carte blanche to dismantle the Department of Education, which plays an important role in the lives of the nation’s 50 million public schoolchildren, sending federal money to schools, helping students with disabilities and enforcing anti-discrimination laws.Many legal experts, along with the court’s three liberal justices, protested that the court was letting Trump abolish a congressionally created federal agency without Congress’s approval. In their dissent, the liberal justices warned that the court was undermining Congress’s authority and the constitution’s separation of powers. Not only that, we should all be concerned that the court was giving dangerous new powers to the most authoritarian-minded president in US history.In the Department of Education case, the court issued a one-paragraph, unsigned order that lifted a lower court’s injunction that blocked the Trump administration from making wholesale layoffs that went far toward dismantling the department. Recognizing that Article I of the constitution gives Congress the power to create and fund federal agencies and define their responsibilities, prior supreme court decisions have held that presidents don’t have the power to defy what Congress has legislated and gut an agency without Congress’s approval.In a stinging dissent, joined by Justices Elena Kagan and Ketanji Brown Jackson, Justice Sonia Sotomayor wrote: “Only Congress has the power to abolish the Department. The Executive’s task, by contrast, is to ‘take Care that the Laws be faithfully executed.’” Sotomayor added that the court’s order “permitting the Government to proceed with dismantling the Department” was “indefensible”.Making the court’s move even more maddening was its failure to include any reasoning to explain its action – it was the most recent in a string of brief “emergency docket” orders which, without giving any rationale, ruled in Trump’s favor. The rightwing justices might argue that this was a harmless, minor order, merely lifting a lower court’s injunction until the case is fully adjudicated. But by vacating the injunction, the court let Linda McMahon, the secretary of education, speed ahead with her plan to slash the department’s workforce by over 50%, a move that will gut the agency and prevent it from carrying out many functions that Congress authorized it to do. The supreme court’s order is likely to leave the department an empty shell by the time the judiciary issues a final ruling on whether Trump broke the law in gutting the department – and there’s a good chance the judiciary will conclude that Trump acted illegally.The Trump administration insisted that it wasn’t dismantling the education department, that it had merely ordered massive layoffs there to boost efficiency. But the district court judge didn’t buy the administration’s arguments, especially because Trump had spoken so frequently about killing the department.Sotomayor wrote that the constitution requires all presidents, including Trump, to faithfully execute the law. But in this case, Trump seemed eager to execute the Department of Education, while showing scant concern for executing the law. Noting Trump’s repeated vows to abolish the department, Sotomayor chided the supermajority, writing: “When the Executive publicly announces its intent to break the law, and then executes on that promise, it is the Judiciary’s duty to check that lawlessness, not expedite it.”With that language, the three dissenting justices were in essence accusing the supermajority of aiding and abetting Trump’s defiance of the law. In the court’s 236-year history, rarely have dissenting justices been so emphatic in criticizing the majority for “expediting” a president’s lawlessness.Sotomayor hammered that point home, writing: “The President must take care that the laws are faithfully executed, not set out to dismantle them. That basic rule undergirds our Constitution’s separation of powers. Yet today, the majority rewards clear defiance of that core principle.”If the US constitution means anything, it means that the supreme court should stand up to a president who seeks to maximize his power by defying the law. But far too often today’s rightwing supermajority seems to lean in to back Trump. The court leaned in for Trump last year in Chief Justice John Roberts’ much-criticized ruling that gave Trump and other presidents vast immunity from prosecution. The supermajority leaned in for Trump last month when it gave Elon Musk and his Doge twentysomethings access to sensitive personal information for over 70 million Americans on social security.One would think the nine justices would be eager to strengthen the pillars that uphold our democracy: the separation of powers, fair elections, respect for the law, limits on the power of the executive. But the Roberts court has too often weakened those pillars: by giving Trump huge immunity from prosecution, by turning a blind eye to egregious gerrymandering that prevents fair elections and by letting Trump fire top officials from independent agencies long before their terms end. In late June, the supermajority curbed district courts’ ability to issue nationwide injunctions to put a brake on Trump’s rampant lawlessness – by that time, lower court judges had issued more than 190 orders blocking or temporarily pausing Trump actions they deemed unlawful.In the Department of Education case, the court again weakened a pillar upholding our democracy; it gave Trump a green light to ignore Congress’s wishes and take a wrecking ball to the department. It’s hugely dismaying that the court undercut Congress’s power at a time when Trump has transformed the nation’s senators and representatives into an assemblage of compliant kittens by intimidating them with a social media bullhorn that bludgeons anyone who dares to defy his wishes. Instead of shoring up Congress’s power in the face of such intimidation, the Roberts court has seemed happy to undermine Congress and hand over more power to Trump.On top of all that, it is galling to see the court issue so many pro-Trump orders without giving any rationale. When the US is so polarized and the court so widely criticized for its many pro-Trump rulings, it would seem incumbent upon the court, when issuing orders, to explain why it’s doing what it’s doing. But the court has repeatedly failed to sufficiently explain its decisions, revealing an unfortunate arrogance and obtuseness.Justice Samuel Alito has complained about those who criticize the court over the rushed, unexplained decisions on its emergency docket. Critics have faulted the court for issuing too many orders through that docket, which uses abbreviated procedures to issue orders that remain in force while the courts adjudicate whether Trump’s actions are legal. Alito maintains that with the crush of cases, the court doesn’t have the time to write its usual, carefully wrought decisions.Alito has suggested, rather outrageously, that many critics of the court are engaged in improper bullying. He said that some critics of the emergency docket suggest it has been “captured by a dangerous cabal” that uses “sneaky” methods. Those criticisms, Alito warned, fuel “unprecedented efforts to intimidate the court”.When the court issues one order after another that favors Trump, the most lawless president in US history, often without explanation, the court should expect to be criticized for doing too little to defend our democracy and the rule of law. Alito shouldn’t be so thin-skinned or paranoid about supposed intimidation; he does have life tenure.The court’s critics aren’t seeking to intimidate the justices. Rather they are pleading with the rightwing supermajority to stop bowing to Trump and become more resolute in enforcing the law against the most authoritarian president in history, a president who said he could “terminate” parts of the constitution and who claims sweeping powers to singlehandedly nullify laws.The court’s supermajority should remember: we are supposed to have a government of laws, not of strongmen.

      Steven Greenhouse is a journalist and author, focusing on labour and the workplace, as well as economic and legal issues More

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      Republicans wanted fewer abortions and more births. They are getting the opposite | Judith Levine

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      Dobbs v Jackson Women’s Health Organization, the US supreme court case that rescinded the constitutional right to abortion, is failing on its own terms. Since the ruling, in June 2022, the number of abortions in the US has risen. Support for reproductive rights is on the upswing. And the rate of voluntary sterilization among young women – a repudiation of Trumpian pronatalism, if a desperate one – jumped abruptly after Dobbs, and there’s no reason to believe it will drop off.Also rising at an alarming clip are preventable maternal deaths and criminal prosecutions of pregnant people.Yet the 21 state legislatures that have imposed total or near-total bans are doing little or nothing to give doctors legal leeway to save the health and lives of pregnant women in medical distress, even if that means inducing abortion. In fact, rather than trying to save lives, they are prosecuting pregnant people who handle those emergencies on their own.The first three – more abortions, more pro-abortion sentiment, more contraception –have frustrated the anti-abortion crowd no end. They know they need stronger disincentives to abortion.Which brings us to the latter two: more punishment and more death. Was punishment the aim all along? And has the anti-abortion movement accepted pregnant people’s deaths as an unfortunate consequence of saving the pre-born?According to the Guttmacher Institute, abortions rose 1.5% in 2024 from 2023, on top of a 11.1% leap in the first year after Dobbs, compared with 2020, before the near-bans enacted in several states that presaged the ruling.It’s also probably an undercount. The statistics include only “clinician-provided abortions”, either surgical or medical (using abortion pills), performed in healthcare facilities or via telemedicine. Guttmacher does not estimate how many abortions are happening outside the formal healthcare system, with drugs obtained directly from suppliers or through feminist underground networks.Indeed, Plan C, the country’s biggest clearinghouse for pill access, reports 2m visits to its website and 500,000 click-throughs to resources and care in 2024, a 25% increase from the year before. How many of those people ended their pregnancies at home, with only a friend or lover in attendance? Anecdotal evidence gleaned from activists suggests they number in the tens of thousands.At the same time, rather than making abortion “unthinkable”, as the anti-abortion activists pledge, the bans may be having the opposite effect. An analysis of two restrictive states, Arizona and Wisconsin, and one with broad access, New Jersey, found that negative attitudes toward abortion are down and positive ones up, in both red and blue states.And if the goal of banning abortion is to produce more children, that’s not working either. Public health researchers saw “an abrupt increase in permanent contraception procedures” – sterilization – following Dobbs among adults in their prime reproductive years, ages 18 to 30. Unsurprisingly, the increase in procedures for women (tubal ligations) was twice that for men (vasectomies).The Trump administration is cheerleading for procreation. “I want more babies in the United States of America,” declared JD Vance in his first public appearance as vice-president, at the March for Life in Washington. He blamed the declining birth rate on “a culture of abortion on demand” and the failure “to help young parents achieve the ingredients they need to lead a happy and meaningful life”. The federal budget extends some of that help. It raises the annual child tax credit (CTC) from $2,000 to $2,200. It also creates “Trump accounts”, $1,000 per child, which parents or employers can add to.But only those with social security numbers are eligible for either program; the tax credit is available only to people who earn enough to pay taxes; and as with any investment, those able to sow more in the savings accounts reap more. It’s clear what sort of baby the administration wishes to be born: white babies with “American” parents, and not the poorest.The carrots are not appetizing enough. The stick is not effective enough. So red-state legislators and prosecutors are ramping up the punitive approach.This year, Republican lawmakers in at least 10 states introduced bills defining abortion as homicide, and, for the first time, criminalizing both the provider and the patient.No such bill has passed – yet – and anti-abortion organizations are usually quick to renounce them publicly, nervous about widespread opposition. But their passage might not be far off. The bills are based on fetal personhood – the concept of conferring full legal rights to a fetus from conception forward. The idea was introduced in 1884 and finally written into one state’s law in 1986. By 2024, 39 states had fetal homicide laws. Last year, there were three bills criminalizing the person who has an abortion; now there are 10. And though the federal courts rejected fetal personhood for a century, it is the bedrock of anti-abortion politics, and this US supreme court is looking much more friendly toward it.While they work toward straightforward criminalization of ending one’s own pregnancy, anti-abortion lawmakers and prosecutors are making creative use of existing law to punish miscarriage, an event indistinguishable from elective abortion, just in case the pregnant person induced the miscarriage. The most ghoulish is the prohibition on abusing corpses.For instance: last week a 31-year-old South Carolina woman who miscarried and disposed of the tissue in the trash was arrested for “desecration of human remains”, a crime carrying a 10-year sentence. In March, a woman found bleeding outside her Georgia apartment after a miscarriage was jailed for “concealing the death of another person” and “abandonment of a dead body” for placing the remains in the bin. A week before that, a Pennsylvania teenager was under investigation for corpse abuse after a self-managed pill abortion and burial of the fetus in her yard.In a grim sense, these are the lucky ones: they survived. Because Dobbs has indisputably been deadly.“Mothers living in states that banned abortion were nearly twice as likely to die during pregnancy, childbirth, or soon after giving birth” as mothers living in states where abortion was legal and accessible, reports the Gender Equity Policy Institute. Maternal mortality rose 56% in Texas after it enacted a six-week ban; a Texan’s risk was one and a half times that of a Californian’s.The future isn’t sunny. A study of 14 total-ban states predicts that in the four years beginning a year after Dobbs, up to 42 mothers will die and as many as 2,700 will be afflicted with “severe maternal morbidity”, defined by the CDC as “unexpected outcomes of labor and delivery that result in significant short-term or long-term [health] consequences”. In one analysis Black women represented 63% of the deaths.The anti-abortion movement is indefatigable. “We abolishioners will not rest until we have effected the abolishment of human abortion,” one leader told Oklahoma Voice. But this is an unattainable grail. Where abortion is illegal, people still have abortions. They just take more risks. Globally, more than 39,000 women die yearly from unsafe abortions.As they run out of options, red-state lawmakers will harden criminal penalties against people who refuse to give up their reproductive self-determination. It may grow less outré to endorse Trump’s opinion, expressed in an unguarded moment, that women who get illegal abortions “deserve some form of punishment”. Whether intentional or not, the sentence for some of those women will be death.

      Judith Levine is Brooklyn-based journalist, essayist and author of five books. Her Substack is Today in Fascism More

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      America’s famed ‘checks-and-balances’ governance system is failing | Jan-Werner Müller

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      It has been said many times, but saying it appears to have no consequences: our system of checks and balances is failing. The US supreme court allowing the president effectively to abolish the Department of Education only reinforces this sense; Sonia Sotomayor, in her dissent, explicitly wrote that “the threat to our Constitution’s separation of powers is grave” – but she did not explain how to counter the threat.The picture is complicated by the fact that what critics call “the stranglehold the checks and balances narrative on the American political imagination” has prevented positive democratic change. Hence it is crucial to understand where the separation of powers itself needs to be kept in check and where it can play a democracy-reinforcing role. Most important, we need counterstrategies against the Trumpists’ usurpation of what should remain separate powers.While pious talk of the founders’ genius in establishing “checks and balances” is part of US civil religion and constitutional folklore, the system in fact never functioned quite as intended. The framers had assumed that individuals would jealously guard the rights of the branches they occupied. Instead, the very thing that the founders dreaded as dangerous “factions” – what we call political parties – emerged already by the end of the 18th century; and thereby also arose the possibility of unified party government.The other unexpected development was the increasing power of the presidency; the founders had always seen the legislature as the potential source of tyranny; instead, the second half of the 20th century saw the consolidation of an “imperial presidency”, whose powers have steadily increased as a result of various real (and often imagined) emergencies. Some jurists even blessed this development, going back to Hamilton’s call for an energetic executive, and trusting that public opinion, rather than Congress or the courts, would prove an effective check on an otherwise “unbound executive”.The dangers posed by unified party control and a strong presidency were long mitigated by the relative heterogeneity of parties in the US; internal dissent meant that Congress would often thwart an executive’s agenda. Less obviously, Congress’s creation of largely independent agencies, acting on the basis of expertise, as well as inspectors general within the executive itself established an internal system of checks. It also remains true, though, that, compared with democracies such as Germany and the UK, an opposition party in the US does not have many rights (such as chairing committees) or ways of holding a chief executive accountable (just imagine if Trump had to face a weekly prime minister’s question time, rather than sycophantic Fox hosts).Most important, though, the executive itself tended to respect the powers of other branches. But Trump: not so much. In line with his governance model, of doing something plainly illegal and then seeing what happens, Trump is usurping powers reserved for the legislature. He uses money as he sees fit, not as Congress intended; he, not Congress, decides which departments are necessary. The tariff madness could be over if Congress called the bluff on a supposed “emergency” which justifies Trump’s capricious conduct of slapping countries with apparently random levies. The most egregious example is his recent threat vis-à-vis Brazil which has nothing to with trade deficits, but is meant to help his ideological ally, former president Jair Bolsonaro, escape a criminal trial for a coup attempt.Trump is also destroying the internal checks within the executive. Inspectors general have been fired; independent agencies are made subservient to the president – in line with the theory of a “unified executive” long promoted by conservative jurists. The US supreme court, occupied to 67% by Maga has been blessing every power grab. As the legal scholar Steve Vladeck noted, the court has granted Trump relief in every single emergency application since early April, with seven decisions – like this week’s on the Department of Education – coming with no explanation at all. If this were happening in other countries, one would plainly speak of a captured court, that is to say: one subordinated to the governing party. As commentators have pointed out, it is inconceivable that this court would simply rubber-stamp a decision by a President Mamdani to fire almost everyone at the Department of Homeland Security.Still, the main culprit is the Republican party in Congress. There is simply no credible version of “conservatism” that justifies Trump’s total concentration of power; and anyone with an ounce of understanding of the constitution would recognize the daily violations. This case can be made without buying into the separation of powers narrative criticized by the left (though what they aim at is less the existence of checks as such, but the empowerment of rural minorities in the Senate and the proliferation of veto points in the political system, such that powerful private interests can stop popular legislation).Paradoxically, Democrats should probably make Congress even more dysfunctional than it already is: use every procedural means to grind business to a halt and explain to the public that – completely contrary to the founders’ anxieties – the emasculation of the legislature is causing democracy’s demise (it never hurts to slip in such gendered language to provoke the Republican masculinists).Of course, one might question what role public opinion can really play as a check, and whether there’s still such a thing at all given our fragmented media world: it never constrained the George W Bush administration’s “global war on terror” in the way that Hamilton’s self-declared disciples had hoped. But it’s still the best bet. After all, there is a reason why some jurists see “we the people” as the fourth branch that ultimately makes the difference.

      Jan-Werner Müller is a Guardian US columnist and a professor of politics at Princeton University More

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      US supreme court allows Trump to resume gutting education department

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      The US supreme court on Monday cleared the way for Donald Trump’s administration to resume dismantling the Department of Education as part of his bid to shrink the federal government’s role in education in favor of more control by the states.In the latest high court win for the president, the justices lifted a federal judge’s order that had reinstated nearly 1,400 workers affected by mass layoffs at the department and blocked the administration from transferring key functions to other federal agencies. A legal challenge is continuing to play out in lower courts.The court’s action came in a brief, unsigned order. Its three liberal justices dissented.A group of 21 Democratic attorneys general, school districts and unions behind a pair of legal challenges had warned in court papers that Trump’s shutdown efforts threatened to impair the department’s ability to perform its core duties.Created by Congress in 1979, the Department of Education’s main roles include administering college loans, tracking student achievement and enforcing civil rights in schools. It also provides federal funding for needy districts and to help students with disabilities.Federal law prohibits the department from controlling school operations including curriculum, instruction and staffing. Authority over these decisions belongs to state and local governments, which provide more than 85% of public school funding.The department’s Republican critics have portrayed the department as a symbol of bureaucratic waste, underlining the need for smaller federal government in favor of greater state power.In March, Trump sought to deliver on a campaign promise to conservatives by calling for the department’s closure.“We’re going to be returning education, very simply, back to the states where it belongs,” Trump said on 20 March before signing an executive order to close the department to the “maximum extent” allowed by law.Trump said that certain “core necessities” would be preserved, including Pell grants to students from lower-income families and federal funding for disadvantaged students and children with special needs, though he said those functions would be redistributed to other agencies and departments.Trump in March directed that the department transfer its $1.6tn student loan portfolio to the Small Business Administration and its special education services to the Department of Health and Human Services.Although formally eliminating the department would require an act of Congress, the downsizing announced in March by US education secretary Linda McMahon aimed to slash the department’s staff to roughly half the size it was when Trump took office in January.skip past newsletter promotionafter newsletter promotionBoston-based US district judge Myong Joun, an appointee of Democratic former president Joe Biden, concluded in a 22 May ruling that the mass firings would “likely cripple the department”. He ordered the affected workers to be reinstated and also blocked the administration’s plan to hand off department functions to other federal agencies.The plaintiffs, Joun wrote, are “likely to succeed in showing that defendants are effectively disabling the department from carrying out its statutory duties by firing half of its staff, transferring key programs out of the department, and eliminating entire offices and programs”.The Boston-based first US circuit court of appeals on 4 June rejected the Trump administration’s request to pause the injunction issued by the judge.In a court filing asking the supreme court to lift Joun’s order, the justice department accused him of judicial overreach.The plaintiffs warned that mass firings at the department could delay the disbursement of federal aid for low-income schools and students with special needs, prompting shortfalls that might require cutting programs or teaching staff.They also argued in court papers that Trump’s shutdown effort would undermine efforts to curb discrimination in schools, analyze and disseminate critical data on student performance, and assist college applicants seeking financial aid. More

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      We’re becoming inured to Trump’s outbursts – but when he goes quiet, we need to be worried | Jonathan Freedland

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      In the global attention economy, one titan looms over all others. Donald Trump can command the gaze of the world at a click of those famously short fingers. When he stages a spectacular made-for-TV moment – say, that Oval Office showdown with Volodymyr Zelenskyy – the entire planet sits up and takes notice.But that dominance has a curious side-effect. When Trump does something awful and eye-catching, nations tremble and markets move. But when he does something awful but unflashy, it scarcely registers. So long as there’s no jaw-dropping video, no expletive-ridden soundbite, no gimmick or stunt, it can slip by as if it hadn’t happened. Especially now that our senses are dulled through over-stimulation. These days it requires ever more shocking behaviour by the US president to prompt a reaction; we are becoming inured to him. Yet the danger he poses is as sharp as ever.Consider the events of just the last week or so, few of them stark enough to lead global news bulletins, yet each one another step towards the erosion of democracy in and by the world’s most powerful country.On Wednesday, Trump threatened to impose 50% tariffs – yes, he’s climbed back on that dead horse – on Brazil, if the judicial authorities there do not drop the prosecution of the country’s Trump-like former president Jair Bolsonaro, charged with seeking to overturn his 2022 election defeat and leading a coup against the man who beat him, Luiz Inácio Lula da Silva. As concisely as he could manage, Lula explained, via social media, that Brazil is a sovereign country and that an independent judiciary cannot “accept interference or instruction from anyone … No one is above the law.”This is becoming a habit of Trump’s. He made the same move in defence of Benjamin Netanyahu last month, hinting that Israel could lose billions in US military aid if the prime minister continues to stand trial on corruption charges. In both cases, Trump was explicit in making the connection between the accused men and himself, decrying as a “witch-hunt” the efforts to hold them to account. “This is nothing more, or less, than an attack on a Political Opponent,” he posted, of Bolsonaro’s legal woes. “Something I know much about!”It’s easy to make light of the transparent effort by Trump to forge an international trade union of populist would-be autocrats, but he’s not solely moved by fraternal solidarity. He also wants to dismantle a norm that has long applied across the democratic world, which insists that even those at the top are subject to the law. That norm is an impediment to him, a check on his power. If he can discredit it, so that a new convention arises – one that agrees that leaders can act with impunity – that helps his animating project in the US: the amassing of ever more power to himself and the weakening or elimination of any rival source of authority that might act as a restraint.He is being quietly assisted in that goal by those US institutions that should regard themselves as co-equal branches of government – Congress and the supreme court – and whose constitutional duty is to stand up to an overmighty executive. Republicans in Congress have now approved a mega bill that they know will leave future generations of Americans drowning in debt and deprive millions of basic healthcare cover. Even so, they put aside their own judgment and bowed to the man who would be king.Less discussed was the bill’s extraordinary expansion of US Immigration and Customs Enforcement, or Ice. Its budget has been increased by a reported 308%, with an extra $45bn to spend on detention and $29.9bn for “enforcement and deportation”. It will soon have the capacity to detain nearly 120,000 people at any one time. And, remember, latest figures show that about half of all those detained by Ice have no criminal record at all.No wonder even conservative critics are sounding the alarm. The anti-Trump Republicans of the Bulwark warn that within months, the “national brute squad” that is Ice will have twice as many agents as the FBI and its own vast prison system, emerging as “the primary instrument of internal state power”. In this view, Trump has realised that corrupting the FBI is a tall order – though still worth trying – so he is supplanting it with a shadow force shaped in his own image. As the Bulwark puts it: “The American police state is here.”Those most directly threatened might share clips of masked Ice agents snatching suspected migrants off the streets and manhandling them violently, just as reports circulate of appalling conditions in Ice premises, with people held in “dungeon-like facilities”, more than 100 crammed into a small room, denied showers or a chance to change clothes, and sometimes given only one meal a day and forced to sleep on concrete benches or the floor. But it is hardly a matter of national focus. Because it is not accompanied by a neon-lit Trump performance, it is happening just out of view.The same could be said of a series of recent decisions by the supreme court. They may lack the instant, blockbuster impact of past rulings, but they accelerate the same Trump trend away from democracy and towards autocracy.On Tuesday, the judges gave Trump the green light to fire federal workers en masse and to dismantle entire government agencies without the approval of Congress. Earlier, the supreme court had ruled that Trump was allowed to remove Democrats from the leadership of government bodies that are meant to be under politically balanced supervision.More usefully still for Trump, last month the judges limited the power of the lower courts to block the executive branch, thereby lending a helping hand to one of the president’s most egregious executive orders: his ending of the principle that anyone born in the US is automatically a citizen of the US, a right so fundamental it is enshrined in the constitution. In ruling after ruling, the supreme court is removing restraints on Trump and handing him even more power. Small wonder that when one of the dissenting minority on the court, Ketanji Brown Jackson, was asked on Thursday what kept her up at night, she answered: “The state of our democracy.”Meanwhile, Trump is succeeding in his goal of cowing the press, extracting serious cash from major news organisations in return for dropping (usually flimsy) lawsuits against them, a move that is having the desired, chilling effect.It all adds up to the steady erosion of US democracy and of democratic norms whose reach once extended far beyond US shores. Even if it is happening quietly, by Trump’s standards, without the familiar sound and fury, it is still happening. The work of opposing it begins with noticing it.

      Jonathan Freedland is a Guardian columnist More

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      US supreme court blocks Florida from enforcing anti-immigration law

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      The US supreme court maintained on Wednesday a judicial block on a Republican-crafted Florida law that makes it a crime for undocumented immigrants in the United States to enter the state.The justices denied a request by state officials to lift an order by the Florida-based US district judge Kathleen Williams that barred them from carrying out arrests and prosecutions under the law while a legal challenge plays out in lower courts. Williams ruled that Florida’s law conflicted with the federal government’s authority over immigration policy.The law, signed by the Republican governor, Ron DeSantis, in February and backed by the Trump administration, made it a felony for some undocumented migrants to enter Florida, while also imposing pre-trial jail time without bond.“This denial reaffirms a bedrock principle that dates back 150 years: States may not regulate immigration,” said Cody Wofsy, deputy director of the ACLU Immigrants’ Rights Project. “It is past time for states to get the message.”After Williams blocked the law, Florida’s attorney general, James Uthmeier, a Republican, and other state officials filed the emergency request on 17 June asking the supreme court to halt the judge’s order. Williams had found that the Florida law was probably unconstitutional for encroaching on the federal government’s exclusive authority over US immigration policy.The state’s request to the justices was backed by America First Legal, a conservative group co-founded by Stephen Miller, a senior aide to Donald Trump and a key architect of the administration’s hardline immigration policies.Florida’s immigration measure, called SB 4-C, was passed by the state’s Republican-controlled legislature and signed into law by DeSantis. It made Florida one of at least seven states to pass such laws in recent years, according to court filings.The American Civil Liberties Union in April sued in federal court to challenge the law, arguing that the state should not be able to “enforce its own state immigration system outside of federal supervision and control”. Williams agreed.The law imposed mandatory minimum sentences for undocumented adult immigrants who are convicted of entering Florida after arriving in the United States without following federal immigration law. Florida officials contend that the state measure complies with – rather than conflicts with – federal law.Sentences for violations begin at nine months’ imprisonment for first offenders and reach up to five years for certain undocumented immigrants in the country who have felony records and enter Florida after having been deported or ordered by a federal judge to be removed from the United States.The state law exempts undocumented immigrants in the country who were given certain authorization by the federal government to remain in the United States. Florida’s immigration crackdown makes no exceptions, however, for those seeking humanitarian protection or with pending applications for immigration relief, according to the American Civil Liberties Union, which sued in federal court to challenge the law.The ACLU filed a class-action suit on behalf of two undocumented immigrants who reside in Florida, an immigration advocacy group called the Florida Immigrant Coalition and the non-profit group Farmworker Association of Florida, whose members include immigrants in the United States illegally who travel in and out of Florida seasonally to harvest crops. Some of the arguments in the lawsuit included claims that it violates the federal “commerce clause”, which bars states from blocking commerce between states.skip past newsletter promotionafter newsletter promotionBacardi Jackson, executive director of the ACLU of Florida, in a statement issued after the challenge was filed said that Florida’s law “is not just unconstitutional – it’s cruel and dangerous”.Williams issued a preliminary injunction in April that barred Florida officials from enforcing the measure.The Atlanta-based 11th US circuit court of appeals in June upheld the judge’s ruling, prompting the Florida officials to make an emergency request to the supreme court.In a filing on 7 July, the state of Florida pointed to a brief filed by the Trump administration in the appeals case, in support of SB 4-C. “That decision is wrong and should be reversed,” administration lawyers wrote at the time.On the same day that Florida’s attorney general filed the state’s supreme court request, Williams found him in civil contempt of court for failing to follow her order to direct all state law enforcement officers not to enforce the immigration measure while it remained blocked by the judge. Williams said that Uthmeier only informed the state law enforcement agencies about her order and later instructed them to arrest people anyway. Williams ordered Uthmeier to provide an update to the court every two weeks on any enforcement of the law.Other states have tried to pass similar laws, including Texas, Oklahoma, Idaho and Iowa, which have attempted to make entering their jurisdictions, while undocumented, a state crime. More

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      US supreme court clears way for Trump officials to resume mass government firings

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      The US supreme court has cleared the way for Donald Trump’s administration to resume plans for mass firings of federal workers that critics warn could threaten critical government services.Extending a winning streak for the US president, the justices on Tuesday lifted a lower court order that had frozen sweeping federal layoffs known as “reductions in force” while litigation in the case proceeds.The decision could result in hundreds of thousands of job losses at the departments of agriculture, commerce, health and human services, state, treasury, veterans affairs and other agencies.Democrats condemned the ruling. Antjuan Seawright, a party strategist, said: “I’m disappointed but I’m not shocked or surprised. This rightwing activist court has proven ruling after ruling, time after time, that they are going to sing the songs and dance to the tune of Trumpism. A lot of this is just implementation of what we saw previewed in Project 2025.”Project 2025, a plan drawn up by the conservative Heritage Foundation thinktank, set out a blueprint for downsizing government. Trump has claimed that voters gave him a mandate for the effort and he tapped billionaire ally Elon Musk to lead the charge through the “department of government efficiency”, or Doge, though Musk has since departed.In February, Trump announced “a critical transformation of the federal bureaucracy” in an executive order directing agencies to prepare for a government overhaul aimed at significantly reducing the workforce and gutting offices.In its brief unsigned order on Tuesday, the supreme court said Trump’s administration was “likely to succeed on its argument that the executive order” and a memorandum implementing his order were lawful. The court said it was not assessing the legality of any specific plans for layoffs at federal agencies.Liberal justice Ketanji Brown Jackson was the sole member of the nine-person court to publicly dissent from the decision, which overturns San Francisco-based district judge Susan Illston’s 22 May ruling.Jackson wrote that Illston’s “temporary, practical, harm-reducing preservation of the status quo was no match for this court’s demonstrated enthusiasm for greenlighting this president’s legally dubious actions in an emergency posture”.She also described her colleagues as making the “wrong decision at the wrong moment, especially given what little this Court knows about what is actually happening on the ground”.Illston had argued in her ruling that Trump had exceeded his authority in ordering the downsizing, siding with a group of unions, non-profits and local governments that challenged the administration. “As history demonstrates, the president may broadly restructure federal agencies only when authorized by Congress,” she wrote.The judge blocked the agencies from carrying out mass layoffs and limited their ability to cut or overhaul federal programmes. Illston also ordered the reinstatement of workers who had lost their jobs, though she delayed implementing this portion of her ruling while the appeals process plays out.Illston’s ruling was the broadest of its kind against the government overhaul pursued by Trump and Doge. Tens of thousands of federal workers have been fired, have left their jobs via deferred resignation programmes or have been placed on leave.The administration had previously challenged Illston’s order at the San Francisco-based ninth US circuit court of appeals but lost in a 2-1 ruling on 30 May. That prompted the justice department to make an emergency request to the supreme court, contending that controlling the personnel of federal agencies “lies at the heartland” of the president’s executive branch authority.The plaintiffs had urged the supreme court to deny the justice department’s request. Allowing the Trump administration to move forward with its “breakneck reorganization”, they wrote, would mean that “programs, offices and functions across the federal government will be abolished, agencies will be radically downsized from what Congress authorized, critical government services will be lost and hundreds of thousands of federal employees will lose their jobs”.skip past newsletter promotionafter newsletter promotionThe supreme court’s rejection of that argument on Tuesday was welcomed by Trump allies. Pam Bondi, the attorney general, posted on the X social media platform: “Today, the Supreme Court stopped lawless lower courts from restricting President Trump’s authority over federal personnel – another Supreme Court victory thanks to @thejusticedept attorneys. Now, federal agencies can become more efficient than ever before.The state department wrote on X: “Today’s near unanimous decision from the Supreme Court further confirms that the law was on our side throughout this entire process. We will continue to move forward with our historic reorganization plan at the State Department, as announced earlier this year. This is yet another testament to President Trump’s dedication to following through on an America First agenda.”In recent months the supreme court has sided with Trump in some major cases that were acted upon on an emergency basis since he returned to office in January.It cleared the way for Trump’s administration to resume deporting migrants to countries other than their own without offering them a chance to show the harms they could face. In two cases, it let the administration end temporary legal status previously granted on humanitarian grounds to hundreds of thousands of migrants.It also allowed Trump to implement his ban on transgender people in the US military, blocked a judge’s order for the administration to rehire thousands of fired employees and twice sided with Doge. In addition, the court curbed the power of federal judges to impose nationwide rulings impeding presidential policies.On Tuesday the Democracy Forward coalition condemned the supreme court for intervening in what it called Trump’s unlawful reorganisation of the federal government. It said in a statement: “Today’s decision has dealt a serious blow to our democracy and puts services that the American people rely on in grave jeopardy.“This decision does not change the simple and clear fact that reorganizing government functions and laying off federal workers en masse haphazardly without any congressional approval is not allowed by our Constitution.” More