On the first day of his second term, President Donald Trump issued an executive order requiring the Bureau of Prisons to “ensure that no Federal funds are expended for any medical procedure, treatment, or drug for the purpose of conforming an inmate’s appearance to that of the opposite sex.” Issued alongside a record 26 other orders that day, it was an unsurprising development, because Trump had made this issue one of the centerpieces of his 2024 campaign.

The fate of that executive order, as well as the US Bureau of Prisons’ (“BOP”) memoranda implementing the order, is now before the Supreme Court in a case called Trump v. Kingdom. And, while this case obviously has high stakes for incarcerated transgender people specifically, the Court’s resolution of this case could potentially have far greater reach — cutting off many cis and transgender people’s access to healthcare while they are incarcerated.

That’s because one of the central questions in Kingdom — though this issue is not yet before the justices — is when the Constitution requires prisons to provide medical care to incarcerated people. In Estelle v. Gamble (1976), the Supreme Court held that the Eighth Amendment’s ban on “cruel and unusual punishments” imposes on the government an “obligation to provide medical care for those whom it is punishing by incarceration.” People in prison, after all, cannot simply drive themselves to the hospital if they get sick. If the prison does not give them adequate medical care, they will suffer untreated and potentially die.

For procedural reasons, the Court is unlikely to opine on whether Estelle requires prisons to provide gender-affirming care to trans people right away. But the question of when the Eighth Amendment requires prisons to provide medical care to incarcerated people is front and center in the Kingdom case, which means the Court could potentially use Kingdom to limit all imprisoned people’s access to healthcare — or even to undercut the Constitution’s protections against cruel and unusual punishments more broadly.

Ironically, this case also arises out of a famous political blunder by pro-trans advocates. In 2019, when then-Sen. Kamala Harris was seeking her party’s 2020 presidential nomination, the ACLU circulated a questionnaire to candidates that asked if they would use presidential authority “to ensure that transgender and nonbinary people who rely on the state for medical care — including those in prison and immigration detention — will have access to comprehensive treatment associated with gender transition, including all necessary surgical care?” 

Harris responded that she would, and also said that she “pushed the California Department of Corrections and Rehabilitation to provide gender transition surgery to state inmates” while she was state attorney general. 

Years later, during his 2024 debate with Harris, Trump claimed that the then-vice president “wants to do transgender operations on illegal aliens that are in prison.” And not long after, his opposition to gender-affirming care for trans people in prison became a key part of his campaign.

It’s unclear why the ACLU thought it was a good idea to shine a light on this issue in 2019 because, at the time, the BOP provided gender-affirming care to people in federal prison. The ACLU — which represents the pro-trans side in the Kingdom case — now argues that transgender people in federal prison have had access to at least some forms of gender-affirming care “since at least 1992.”

Indeed, Trump’s own administration concluded in a 2018 memo that the Bureau of Prisons’ “statutory mandate to provide basic medical and mental health care” to incarcerated people obligated it to provide “pharmaceutical interventions (e.g., cross-gender hormone therapy), hair removal and surgery (if individualized assessment indicates surgical intervention is applicable)” to transgender people in prison if their doctors determined that these interventions are “medically necessary care.”

In any event, regardless of why Trump fixated on cutting off trans healthcare for people in federal prison, Kingdom is now before the Court. That means that the fate of trans people in prison — and, if the Eighth Amendment issue eventually reaches the Court, all incarcerated people — is now in the hands of a Republican Court that is often hostile to trans litigants, and that has, at times, signaled that it wants to drastically roll back the scope of the Eighth Amendment.

What are the legal issues in the Kingdom case?

At least since Estelle, the Court has held that people who are incarcerated are not also sentenced to live and die without medical care. As the Court said in Brown v. Plata (2011), “a prison that deprives prisoners of basic sustenance, including adequate medical care, is incompatible with the concept of human dignity and has no place in civilized society.”

Under Estelle and Brown, transgender people often have a right to gender-affirming care during their incarceration. As the US Court of Appeals for the Ninth Circuit held in Edmo v. Corizon (2019), such a person must show that they have a “serious medical need” for such care — typically by demonstrating that the care was prescribed to them by their health provider. But the Constitution does not permit prisons to deny medically necessary care to incarcerated people.

In Kingdom, the ACLU raised this Eighth Amendment argument in the lower courts, but those lower courts ruled in favor of transgender people in prison on different, much more technical legal grounds.

For over three decades, from at least 1992 to 2025, according to the ACLU’s brief to the justices, the BOP provided at least some gender-affirming care, including hormone therapy, to transgender people. This matters because, when a federal agency changes its policies, a federal law typically requires it to “examine the relevant data and articulate a satisfactory explanation for its action, including a rational connection between the facts found and the choice made.” This explanation often must explain the agency’s justification for “disregarding facts and circumstances” that justified the previous policy.

Both the ACLU and the lower courts that heard Kingdom argue that the Trump administration did not comply with this obligation when it cut off care for trans people in prison. 

Among other things, the district court that heard this case determined that the administration cited “zero evidence from its own medical or mental health care professionals to support its conclusions” against providing transgender healthcare. While the Trump administration argues that providing gender-affirming care makes prisons less safe, the district court also noted that “the government has not cited a single instance of gender-affirming care giving rise to safety concerns despite having provided such care for many years.”

Is this a persuasive legal argument against the Trump administration’s new policy? I think it is. And so did three federal judges that previously heard the Kingdom case. But the fate of trans people in prison is now in the hands of a Supreme Court that rarely rules in favor of transgender litigants, and that has a history of handing down legally incoherent opinions that are inconsistent with the Court’s own precedents, and that also deny legal rights to trans people.

The current Court’s uncertain commitment to the Eighth Amendment

Because the lower courts that heard Kingdom did not rule on the Eighth Amendment question, Kingdom should not currently give the justices an opportunity to roll back Estelle. But, in the likely event that this Court rejects the ACLU’s argument that the Trump administration did not adequately explain its new policy, the case will return to the lower courts and the Eighth Amendment issue will be fully litigated — teeing up the Eighth Amendment question for the justices to decide in the near future.

This issue could arise, moreover, at the exact moment that some justices are pushing for sweeping changes to how their Court understands the term “cruel and unusual punishments.” Indeed, at least some of the Supreme Court’s recent Eighth Amendment precedents suggest that the Republican justices want a wholesale rewrite of the Court’s previous precedents laying out what constitutes cruel and unusual punishment.

Since the mid-to-late twentieth century, the Court has held that, in Chief Justice Earl Warren’s words, the Eighth Amendment “must draw its meaning from the evolving standards of decency that mark the progress of a maturing society.” Thus, as certain forms of punishment grow more uncommon, they become more constitutionally dubious.

This “evolving standards of decency” framework is front and center in nearly every major Supreme Court decision interpreting the Eighth Amendment for the last five or six decades, including Estelle.

In Bucklew v. Precythe (2019), however, the Court’s Republican majority seemed to abandon this framework. Although decades worth of pre-Bucklew decisions established that a punishment is unconstitutional if it is considered cruel and unusual today, Bucklew suggested that a method of punishment is unconstitutional only if it “had fallen out of use” at “the time of the founding.” 

Bucklew did list some methods of punishment that fail this test, but they are things like “disemboweling” or “burning alive.”  

Thus, if taken seriously, Bucklew’s new approach to Eighth Amendment cases would dramatically expand the government’s power to impose harsh punishments. The late Justice Antonin Scalia, for example, argued that a Bucklew-like approach to the Eighth Amendment does not prohibit the government from executing most intellectually disabled offenders, and that it does not limit the government’s ability to impose excessive punishments for minor crimes.

In fairness, some of the Court’s post-Bucklew decisions are inconsistent with the framework the Court laid out in that case. So at least some of the justices who joined Bucklew may have since decided that it’s a bad idea to toss out the Court’s entire framework for Eighth Amendment cases. But Bucklew was one hell of a warning shot over the bow of the Eighth Amendment. And the mere fact that the Bucklew decision exists means that advocates for humane punishments must hold their breath any time this Court is asked whether a particular punishment is cruel and unusual.

In the worst-case scenario for people in prison, a case like Kingdom could inspire the Republican justices to overrule — or, at least, drastically limit — decisions like Estelle and Brown. That would mean that all incarcerated people, regardless of their gender identity, could lose access to medically necessary care unless the government decides to give it to them as an act of grace.

This article is part of Cafe, TPM’s home for opinion and news analysis.

Donald Trump’s ability to jail millions of people without even a bond hearing depends on what the Supreme Court thinks about one man’s case. 

This book excerpt is part of Cafe, TPM’s home for opinion and news analysis.

On June 25, 2013, the Roberts Court handed down their decision in Shelby County v. Holder. The 5-4 decision gutted the Voting Rights Act of 1965’s “preclearance” condition, which required states and localities with a history of racial discrimination in voting practices to get permission from the federal government before they could change any policy related to their elections. The country had changed dramatically, Chief Justice Roberts wrote for the majority; the “strong medicine” of the Voting Rights Act, he argued, was no longer needed, let alone justified. But Michael G. Miller and I show throughout our new book, An American Problem: How the Country Built – and the Supreme Court Broke — The Voting Rights Act just how misguided that reasoning was. In the parts of the country freed from preclearance by Shelby County, our electoral institutions have grown demonstrably less open to Americans of color.

When Mike and I started working on what would become An American Problem, a promise made by Justice Roberts in Shelby County still held. “Section 2” of the 1965 Voting Rights Act, he wrote — the section containing the tools allowing litigators to attack election laws and policies that disproportionately harmed voters of color ± “is permanent and applies nationwide.” Although the Shelby County majority was happy to invalidate the preclearance regime that June morning, they told the country that tools remained still for removing discriminatory laws from the statute books.

But this is no longer the case.

This story was originally reported by Sara Luterman of The 19th. Meet Sara and read more of their reporting on gender, politics and policy.

More than 25 years ago, Lois Curtis called a lawyer with the Atlanta Legal Aid Society from a pay phone in a hospital hallway. She had an intellectual disability and wanted help to get out of the state hospitals where she had lived for most of her life. Instead of spending her days heavily sedated and shuffling between the day room and the place where she slept, she wanted to be in her own apartment, to make her own decisions about what to do with her days. 

“She’d say, ‘Get me out of here. Would you please get me out of here? When am I getting out of here?’” recalled the lawyer, Sue Jamieson, in an oral history for the Atlanta Legal Aid Society.

With representation from the legal aid group, Curtis and her co-plaintiff, fellow Georgia resident Elaine Wilson, brought a challenge to the U.S. Supreme Court, which ruled in their favor in 1999. In Olmstead v. L.C., which stands for Lois Curtis, the majority held that the 1990 Americans with Disabilities Act guarantees that people with disabilities have a right to live outside the walls of asylums, state hospitals and nursing homes. 

More than two decades later, that right is under threat. In June, President Donald Trump’s Department of Justice published a memo stating that the federal government has no obligation to enforce Olmstead. In August, the DOJ began withdrawing from cases where it had previously been defending people with disabilities (and their families) who wanted to receive care in their own homes.

This article is part of TPM Cafe, TPM’s home for opinion and news analysis. It was originally published at Balls and Strikes.

On Tuesday, October 6, Justice Samuel Alito released So Ordered, his addition to the Supreme Court’s library of vanity books written by justices who decided that their $306,600 salaries are not enough. Alito’s book is particularly unnecessary because most of it is not even original content, but a collection of adapted speeches he’s given since his confirmation in 2006. As it turns out, a lesser-known perk of being a Supreme Court justice is that you can get paid to publish old talking points thrown together by clerks whose names you forgot long ago.

Much of the coverage of Alito’s book is due to ongoing speculation that he could retire soon, ensuring that a Republican president and a Republican-controlled Senate can nominate and confirm his successor. While promoting So Ordered, though, Alito has said that he plans to “serve for a certain number of additional years,” and “intends” to “stick around through this term.” On the one hand, I understand why this is a story; on the other, given that Alito is a lifelong Republican with an alarming history of flying January 6-adjacent flags over his homes, if Democrats take the Senate in the 2026 midterms, I will not be shocked if he changes his mind.

The Supreme Court convened on Monday for another exciting round of “how far will they go?” and, as luck would have it, the putative leader of the conservative majority, Justice Samuel Alito, is out on a book tour talking about the philosophy that will guide their decisions. 

“So Ordered: An Originalist’s View of the Constitution, the Court, and Our Country” is a collection of essays adapted from speeches he has given since 2007, many with straightforward titles, including “Let Judges Be Judges.” While an associate justice, Alito’s power on the Court shouldn’t be undersold. While all the other conservatives justices — aside from Clarence Thomas — don’t openly identify as originalists, they have shown themselves happy to follow Alito’s lead when it suits their ends. In fact, the so-called Roberts Court, named by tradition after the chief justice, is a misnomer. It’s really the Alito Court, which should send a chill down your spine if you have any concerns about where America is heading.

Alito gave a long interview to CBS News legal correspondent Jan Crawford, addressing a wide range of issues. One wouldn’t call him a charming personality, but he is compelling in his absolute confidence in himself and his ideas. At 76, he seems to be just getting started. He admitted to Crawford that he thinks about retiring, as anyone his age would, but he doesn’t have any intention of doing so at the moment, a fact that must come as a disappointment to both President Donald Trump and congressional Republicans who are struggling to hold on to their majority. 

Considering the sad example of the late Justice Ruth Bader Ginsburg, both Alito and Thomas would have done conservatives and Trump a big favor if they had retired during these first two years of Trump domination. Had they done so, they would have been seen as heroes to their fellow right-wing activists. 

Trump may think his legacy is in the hideous monuments he’s building to himself, but the Court’s conservative majority will be the lasting mark of his reign. He has already appointed three — Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett — of the six conservative justices, and if he were able to appoint two more in the vein of Alito and Thomas, but 30 years younger, he would likely seal the nation’s future and benefit his wealthy cronies for generations to come. 

Even if the pair had merely hinted they might resign, it would have given the Republicans something to run on in the midterms. Should the Democrats win a majority in the Senate, as they are now increasingly expected to, come January any hopes of appointing a far-right conservative in Alito’s image are dead for at least the next two years. If a vacancy were to happen, presumably the Democrats would invoke the McConnell precedent and keep the seat open until a new president is elected. 

But right now Alito and Thomas are at the height of their power and influence — and they aren’t going anywhere. “I think I can still make a contribution,” Alito told Crawford. “And it’s hard to give up the opportunity to do something that I think will be good for the Constitution and good for the country as long as I’m able to do it.” As Kevin McMahon, a political science professor at Connecticut’s Trinity College, told Reuters, “They have been waiting for a long time to be in the position. So why leave?”

Why leave indeed? Crawford’s analysis of Alito’s power on the Court is that he is now the fulcrum on which its decisions are made. “Alito is especially skilled in bringing together five justices for a majority on some of the Court’s most difficult and contentious issues,” she observes. “The justice often publicly portrayed as unyielding and inflexible is, behind the scenes, the conservative who is uniquely adept at finding common ground on the most divisive issues.” 

Alito is certainly having some success with his signature issue, the unitary executive, having been a champion of the right-wing theory since the 1980s, when he worked for Ronald Reagan’s hyper-partisan Attorney General Ed Meese in the Justice Department. As Alito defined it back in 2000, before he was elevated to the high court, the “president has not just some executive powers, but the executive power — the whole thing.” He believes the president has the sole authority over federal agencies and sees presidential power as dominant — well, unless the Supreme Court disagrees and says otherwise. 

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All this may seem to be in conflict with Alito’s guiding philosophy of originalism, but he explains that away by calling himself a “practical originalist” who believes that the Constitution is a sort of sacred text that must be taken literally as it was understood at the time of its adoption — unless it just doesn’t seem right. Last week, he wrote a Wall Street Journal op-ed headlined “Even Originalists Make Mistakes,” in which he listed legal scholars and practitioners who, in his estimation, aren’t following the one true creed. But Alito admitted that he, too, must sometimes deviate from the path and make a “reasonable judgment call” that may require him to overturn precedents and that “conditions” may “militate against scholarly purity.” 

The justice goes to great lengths to deny that he has any partisan interest, but it’s clear throughout the interview and from his other comments over the last few years that he’s highly partisan and influenced by the right-wing hysteria over the “woke” left. Alito expressed grave concern about presidents criticizing the Court for its decisions, saying that Joe Biden was particularly harsh. But when pushed a bit, he admitted that Trump has been harsh too. That false equivalence is so fatuous it’s embarrassing that a Supreme Court justice would have the gall to utter it.

Biden condemned the Court’s decision to overturn Roe v. Wade by calling it a “tragic error” and “an extreme and dangerous path the court is now taking us on.” The 2022 Dobbs v. Jackson decision did, after all, overturn a constitutional right that had been in effect for 50 years, one that numerous conservative justices had told the Senate and country they considered to be settled law. Trump, on the other hand, has said that members of the Court, especially those he appointed, are “very unpatriotic and disloyal to the Constitution,” when they vote against his wishes. But he hasn’t stopped there. They are also, he said, “an embarrassment to their families, if you want to know the truth” and a “disgrace to our nation.” But then Trump loves Alito and says he “wants to make America great again,” so perhaps the justice agrees with him about his brethren. And why not? They are aligned on virtually every issue. 

As the Court’s new term begins, Alito is clearly feeling his oats. He wants to have the influence and power to decide the radical cases that are coming before the court as a result of Trump’s unprecedented power grab under the unitary executive theory. The project is his life’s work. So he’s staying.

But that doesn’t mean that Democrats didn’t dodge a bullet when he refused to retire so Trump could name a young replacement. These days it may be hard to imagine anyone worse than Samuel Alito, but just think about who could have been next. How does Justice Todd Blanche or Justice Aileen Cannon sound?

The post Samuel Alito’s unfinished business could be a gift to Democrats appeared first on Salon.com.

Inside Chief Justice John Roberts are two wolves.

The first wolf is a staunch conservative who spent much of his career litigating on behalf of corporate interests. This wolf looks at a series of climate change lawsuits that could potentially cost the oil industry billions of dollars or more, and recoils in horror.

The second wolf is a judge tasked with following the law wherever it leads. And that wolf seemed baffled by the oil industry’s arguments in Suncor Energy v. County Commissioners of Boulder County, a Supreme Court case where two oil companies are asking the justices to shut down dozens of climate change lawsuits.

The Court’s decision in Suncor is likely to shape the future of climate litigation in the United States. If the oil industry prevails, that will probably shut down climate change-related suits in state courts — and it may shut them down entirely because it is unclear whether federal law allows these suits to proceed in federal court. If the oil industry loses, by contrast, it could face dozens of suits in state courts across the country seeking billions of dollars or more.

And the outcome in Suncor is likely to turn on which wolf shows up to the justices’ conference on how to decide the case. Roberts, who asked the most ambiguous questions at Monday’s oral argument in Suncor, clearly wants these lawsuits to disappear. But he also appeared doubtful that the oil companies’ weak legal arguments will allow him to make that disappearing act happen.

Notably, Justice Samuel Alito, who owns stock in oil and gas companies, is recused from hearing the case. So, in the likely event that all three of the Court’s Democrats hold together against the oil companies, Roberts would split the Court 4-4 if he decides to join them. That would leave the Court unable to render a decision, and a lower court opinion, which rejected the oil companies’ bid for lawsuit immunity, would remain in effect.

That said, at least two other justices asked questions suggesting that their votes may potentially be in play. Justice Clarence Thomas, who otherwise appeared sympathetic to the oil companies, repeatedly asked whether his Court has jurisdiction to hear Suncor in the first place. Meanwhile, while most of Democratic Justice Elena Kagan’s questions seemed to favor allowing the climate change lawsuits to proceed, she did ask some questions at the end that indicated that she may be looking for a narrow reason to hand the oil companies a win.

The bottom line is that it is difficult to predict how this case will turn out, as more than one justice asked questions that suggest that their vote is, at least, in play. But the outcome is likely to hinge upon the tension within Roberts — who both signaled that he wants the oil companies to win, but who also expressed deep skepticism of their primary legal argument.

So what is Suncor actually about?

Suncor is one of many lawsuits brought by state or local governments (in this case, the plaintiff is Boulder, Colorado) who’ve sued oil companies claiming that those companies should be liable for the harms caused by climate change within those governments’ jurisdictions. In this particular case, the defendants are Exxon Mobil and Suncor, a company that operates two oil refineries in Colorado. 

The lawyer for these two companies, Kannon Shanmugam, told the justices that there are about 60 similar cases brought by municipal governments throughout the country. And, in one of his more pro-oil moments during Monday’s oral argument, Roberts predicted that if Boulder wins in the Supreme Court, there will be numerous other copycat lawsuits filed by other municipalities.

The question in Suncor is whether state courts, including Colorado’s own courts, are forbidden from hearing these sorts of climate change lawsuits.

As Roberts pointed out in one of his less pro-oil moments during Monday’s argument, “there are a lot of familiar situations where conduct outside of a state has broad effects on other states…and yet we allow the state courts in a particular state to bring litigation.” He pointed to “mass tort” suits and “complaints about operations of the internet” as two examples where state courts hear lawsuits involving harms that arise across state borders.

The oil companies’ primary argument is that suits involving air and water pollution are special. But their evidence supporting this argument is confusing and difficult to parse. 

Briefly, the oil companies point to several cases, many of which were decided more than a century ago. These cases held that, before Congress enacted the Clean Air Act in 1963, states could sometimes sue other states for cross-border pollution, even though no federal law forbade such pollution. The Supreme Court created “federal common law” permitting these suits, and the oil companies claim that this federal common law preempted any state lawsuits that covered a similar subject matter.

This federal common law, they now argue, has itself been displaced by the Clear Air Act and its partner statute, the Clean Water Act, but the principle that state suits involving air and water pollution are preempted is somehow still in effect. Although there is no provision in the text of the Constitution that supports this argument by the oil companies, those companies claim that their argument is implicit in the “structure of the Constitution.”

The oil companies’ primary legal argument is difficult to understand

If you are confused by all the arcane history and logical leaps contained in the oil companies’ argument, don’t worry. So were most of the justices. Only Justice Brett Kavanaugh, who repeatedly claimed that his Court’s precedents bar Boulder’s lawsuit, seemed to buy what the oil companies are saying without reservation. Most of the other justices expressed at least some reservations.

Justice Amy Coney Barrett, for example, argued that even under the older “federal common law” regime, states still retained some authority over environmental lawsuits, although she noted that the Court’s previous decisions do not really define the scope of that authority. Kagan pointed out that the many suits challenging climate change are similar to past litigation against tobacco and opioid manufacturers. But those suits were heard by state courts.

Many of the justices appear bothered that these lawsuits exist, but the most skeptical justices couldn’t agree on a legal theory they could use to shut them down.

It seems unlikely, in other words, that there are five votes for the oil companies’ convoluted claim that the “structure of the Constitution” somehow bars state courts from hearing climate change lawsuits. But several of the justices did appear troubled by what could happen if dozens of state courts reach conflicting judgments on who is responsible for climate change and who should receive compensation because of it. And some of these justices floated alternative theories for how to hand the oil companies a win. 

At one point, for example, Barrett floated the possibility that, if the plaintiffs lose in Suncor, they might file a new suit under the now-defunct federal common law that existed prior to the Clean Air Act. Kagan, meanwhile, suggested that perhaps the Clean Air Act could be read to preempt these suits like Suncor. According to Kagan, that law “sets up an extremely complicated scheme about how regulations of emissions should operate,” and allowing states to hear lawsuits like Suncor would “get in the way of how Congress decided to regulate greenhouse gases.”

And Roberts didn’t so much offer a legal argument in favor of the oil companies’ position as express incredulity of what would happen if those companies lose. “Presumably if you prevail,” before the Supreme Court, Roberts told Kevin Russell, the lawyer for Boulder, “the next day a municipality in every single state will file a lawsuit, copy your pleadings, and then there will be at least 50…how do you think that will work out on the ground?”

All of which is a long way of saying that the outcome in Suncor is uncertain. The oil companies led with a weak legal argument, and only Kavanaugh seemed to fully embrace that argument. Many of the justices appear bothered that these lawsuits exist, but the most skeptical justices couldn’t agree on a legal theory they could use to shut them down.

For what it is worth, the oil companies actually do make a strong policy argument that it is a bad idea to allow state courts to do so. As they argue, climate change is a global problem caused by many polluters (and companies like Exxon that supply the oil burned by polluters) throughout the world. It could be impossible to determine which specific companies caused the specific problems caused by climate change in Boulder, Colorado. And even if this obstacle can be overcome, there are many thorny questions about which state’s law should apply when pollution from one state crosses over into another, not to mention the difficult diplomatic issues that could arise if a state court orders a foreign company to pay a large sum of money.

But under our Constitution, the proper solution if the oil companies want federal law to preempt state court suits like Suncor is that they can lobby Congress, and Congress could then draft a statute that balances these companies’ interest in avoiding many conflicting legal decisions with the interests of plaintiffs like Boulder who say they are experiencing real harms from climate change. Congress has the power, for example, to combine all of these state lawsuits into one grand federal lawsuit, where a single proceeding could determine how to portion out the costs of climate change to various energy companies, and how to divide whatever these companies are ordered to pay among the various plaintiffs.

But that solution would undoubtedly require compromises that companies like Exxon will not like. So, instead, they’ve asked the Supreme Court to give them the legal regime that they want, despite the fact that they could not articulate a persuasive legal argument for that outcome. It remains to be seen whether this Court will give the oil companies a win anyway.

Blanche Targets Minnesota Judges

Under the pretext of an ethics complaint against all but one of the active federal judges in Minnesota, Attorney General Todd Blanche signaled yesterday that not only will the Trump administration continue to run roughshod over the judicial branch but that judges had better shut up about it. 

The complaint filed by second and third highest ranking DOJ officials with the uber-right-wing 8th Circuit Court of Appeals is ostensibly about an admittedly unusual decision by the federal judges who bore the brunt of Operation Metro Surge to sit for an interview with the New York Times for a story that ran Sept. 17.

In the interview, the judges — including Patrick Schiltz who was the chief judge during the peak of the flood of mass deportation cases swamping the Minnesota federal court — defended the rule of law, provided a civics lesson on the role of the courts, and described the structural and institutional challenges they had faced. They refrained from talking about individual cases, but they did speak in broad terms about the habeas cases in general, Operation Metro Surge and the conduct of the Trump DOJ.

The complaint — signed by acting Deputy Attorney General Trent McCotter and Associate Attorney General Stan Woodward — accused the judges of pandering to the press and engaging in unethical behavior that “flagrantly violated” the canons of judicial ethics. It specifically called out Judge Schiltz and Judge John R. Tunheim — who were both quoted by name in the NYT article — for what it called “particularly egregious” misconduct.

The Trump DOJ asked the 8th Circuit to appoint a special committee to conduct an investigation of the judges for their allegedly improper behavior and to order Judges Schiltz and Tunheim to recuse themselves from any cases involving DHS.

Blanche: "Today, we're also announcing that just a few minutes ago the DOJ filed a judicial misconduct complaint with the 8th Circuit Court of Appeals against all but one district court judge in the District of Minnesota for violating various judicial canons."

— Aaron Rupar (@atrupar.com) 2026-09-30T15:40:45.087Z

The Trump DOJ getting on its high horse about legal ethics is a lot to take on its own. But it’s also striking that the complaint leans into what DOJ officials see as a friendly audience on the 8th Circuit. It emphasizes, for instance, the appeals court’s own decision upholding the Trump administration’s mass detention policy without bond — one of only two appeals courts to do so — in which it overruled the Minnesota judges.

Traditionally, Article III judges have been free to speak publicly on matters of judicial administration, the Constitution, democracy — civics, if you will. They have been free to lobby for more funding, better security protection, restructuring of the judiciary, and reform measures without running afoul of ethics requirements. 

But the Trump DOJ — which has defied orders left and right, hidden its worst conduct behind unprepared junior lawyers, botched cases, fired huge numbers of experienced attorneys, and made a hash of the distinguished department — now wants to clamp down on the ability of judges to stand up against what may be the most sustained assault on the judiciary in the nation’s history.

SCOTUS Takes Up Mass Detentions

As expected, the Supreme Court will take up the Trump administration’s policy of mass detention without bond that the circuit courts have split on, but which dozens of judges in thousands of cases have found to be unlawful.

Renee Good’s Family Sues

The family of Renee Good who was shot and killed by ICE in January during Operation Metro Surge has filed two civil lawsuits against the Trump administration arising from her death. 

Broadview Six Hearing This Afternoon 

A federal judge in Chicago this afternoon will hear arguments over whether to conduct a further inqury into alleged misconduct into Trump’s DOJ’s handling of the grand jury in the Broadview Six case and the aftermath of that now-abandoned prosecution of ICE protesters. 

As Bad as It Gets

The Supreme Court’s prior handling of the third-country removal case was already the most troublesome emergency docket case, Georgetown law professor Steve Vladeck argues, then came this week’s unexplained decision in the case: 

“There have certainly been rulings on the emergency docket that I believe to be more clearly and obviously wrong on the merits. And there have been rulings on the emergency docket that have produced even more harmful effects domestically and/or to the separation of powers. But there’s something profoundly ugly about the D.V.D. case that, unfortunately, was on display again on Tuesday.”

Cannon Wiggles Out of Bind

Give her credit: Judge Aileen Cannon has gotten out of the pickle she was in on Volume II of former Special Counsel Jack Smith’s report. She struck a motion from FBI agents who investigated the Mar-a-Lago documents case and are now being targeted by the Trump DOJ seeking clarification on her order sealing Volume II. Her reason: The lawyers had failed to confer with the co-defendants in the underlying criminal case about their motion before filing it.

808	PAPERLESS ORDER striking for lack of conferral 806 Motion to Intervene and Seek Clarification of Court Order. S.D. Fla. L.R. 88.9(a). Signed by Judge Aileen M. Cannon on 10/1/2026. (sm1) (Entered: 10/01/2026)

11th Circuit Stirs to Action

In the Volume II case which is on appeal, the 11th Circuit the appeals court rescheduled oral arguments yet again but moved them earlier for the first time after months of kicking the can down the road. Instead of January of next year they’re now scheduled for the first week of November. Nothing much going on that week.

Reflecting Pool Case Dismissed With Prejudice

Ruling that “no crime occurred,” a DC judge has ruled that the already-dismissed Reflecting Pool case against David Hearn should be dismissed with prejudice, meaning the Trump DOJ can’t bring the case against him again in the future.

Quote of the Day 

“This event is the worst we’ve seen and unlike any other botched execution in the modern era. There is no precedent.”—Robin Maher, executive director of the Death Penalty Information Center, on last night’s horrific attempted execution of Christa Pike in Tennessee.

Pike remains hospitalized this morning. Gov. Bill Lee (R) has halted executions through the end of the year.

The Supreme Court on Tuesday cleared the way for the Trump administration to continue deporting people to countries where they have no ties and where they may face violence without even guaranteeing them a chance to contest the removal. 

The Supreme Court ruled on Friday that Missouri may not use a newly drawn Republican gerrymander during the 2026 congressional election. This decision should surprise no one because, about two weeks ago, the Supreme Court ruled that Missouri may not use a newly drawn Republican gerrymander during the 2026 congressional election.

That second decision, moreover, followed an even earlier one by Justice Brett Kavanaugh, which ruled that Missouri may not use a newly drawn Republican gerrymander during the 2026 congressional election. In that matter, Kavanaugh acted alone under a process that allows a single justice to dispose of a case — a process that the justices rarely invoke unless they view a case as so one-sided that there’s no need to formally refer it to their colleagues.

So, for those keeping track at home, that’s three times that the Supreme Court needed to decide the same exact question in less than three weeks. 

This happened because of an extraordinary round of defiance by Republican judges in the lower courts. Just minutes after Kavanaugh determined (for the first time) that Missouri cannot use the Republican gerrymander, a Trump-appointed judge in Missouri tried to countermand Kavanaugh’s decision. Then, after the full Court reaffirmed Kavanaugh’s decision, a panel of three Republican appellate judges again tried to reinstate the new maps that the Supreme Court had already twice rejected.

These judges’ behavior is disturbing. But it is also potentially a window into the future of the Supreme Court — at least if Republicans keep winning elections that allow them to fill seats on the federal judiciary.

The lower federal courts are gravid with ambitious Republican judges who reach conclusions that are either too extreme or too partisan for the current Supreme Court — such as the ones they reached in this case. These courts are also full of plausible candidates for a Supreme Court nomination who have shown unwavering loyalty to Trump, the MAGA movement, or the Republican Party — regardless of whether there are legal arguments supporting the GOP’s preferred outcomes.

Indeed, one lower court, the US Court of Appeals for the Fifth Circuit, now functions as a kind of think tank for MAGA legal theories that less partisan judges would scoff at in disgust. This is the same court, for example, that attempted to pull the abortion medication mifepristone from the market. It’s a court that declares entire federal agencies unconstitutional. Or that orders thousands of lawfully cast ballots thrown in the trash after the Republican Party asks them to do so. The Fifth Circuit is also frequently reversed from the left by the Supreme Court.

That means that, if Republicans hold onto the Senate after the upcoming 2026 midterm elections, Trump will be able to easily identify and confirm Supreme Court nominees who make Justice Samuel Alito, the most partisan member of the current Court, look like an icon of disinterested fairness. And many of these ultra-partisan judges are young enough that they will remain viable Supreme Court candidates in future Republican administrations.

Eliminating judicial filibusters transformed who gets nominated to federal judgeships

About 13 years ago, the Senate fundamentally changed how federal judges are confirmed. Prior to late 2013, senators in the minority party could use the filibuster to block any judicial nominee who couldn’t find 60 senators who would support their confirmation. But the Senate voted in November of 2013 to allow judges to be confirmed by a simple majority vote.

Both parties have their own narratives blaming the other for this development. Republicans often claim that Democrats’ decision to filibuster a handful of President George W. Bush’s lower court nominees — before the second Bush administration, judicial filibusters were rare — was a major escalation in the partisan war over judicial confirmations. Democrats, meanwhile, blame Republicans for a significant uptick in judicial filibusters under President Barack Obama.

In any event, Senate Democrats eventually decided to allow judges to be confirmed by a majority vote after Republicans filibustered all of Obama’s nominees to three vacant seats on the powerful US Court of Appeals for the DC Circuit. That broke a logjam that otherwise would have prevented Obama from filling any of these seats, but it also created a new world where lawyers who wished to become federal judges or justices no longer needed to worry about winning votes from senators in the other party.

This new world was apparent immediately after Trump took office the first time in 2017. There was a vacant seat on the Supreme Court, largely because Senate Republicans had held it open for a year until Trump could fill it. 

During his first term, Trump largely delegated the task of picking judges to the Federalist Society, a kind of bar association for right-wing lawyers. And the Federalist Society was obsessively focused on weakening the power of federal agencies to regulate private business. 

Trump’s eventual nominee for the open seat, now-Justice Neil Gorsuch, secured his new job by advertising his eagerness to advance the conservative legal movement’s top priority. Shortly before his nomination, Gorsuch wrote a pair of opinions laying out his plan to make federal agencies subservient to the judges. And one of these opinions, according to the journalist David Kaplan, “proved decisive in clinching” the nomination for Gorsuch.

In the pre-2013 world, judges with Supreme Court ambitions often avoided making their most controversial views public out of fear that doing so would antagonize other-party senators who they might need to support their confirmation to a higher court. In 2011, for example, Kavanaugh, then a judge, was assigned to a panel considering the constitutionality of Obamacare. But he dodged the key issue in the case, instead claiming that he lacked jurisdiction to rule on whether Obamacare is lawful.

After Gorsuch’s anti-regulatory opinions scored him a Supreme Court seat, however, lower court judges took notice. And the most ambitious Republican judges started looking for opportunities to prove their conservative bona fides to the Trump White House. Before 2017, for example, Kavanaugh had avoided taking a public position on abortion. Months after Gorsuch’s confirmation, however, Kavanaugh gave a speech to a conservative think tank signaling that he would be a vote to overrule Roe v. Wade if he were given a promotion.

The confirmation process, in other words, now favors candidates who audition for judicial jobs by demonstrating that they are dependable votes on issues that drive their political party. This is especially true for Republican judicial candidates, because the Trump White House has shown such favor toward candidates who are personally loyal to Trump. But Democrats who want a judicial appointment also have similar incentives. 

Gorsuch got his seat because Republicans, who controlled the Senate in 2016 when Justice Antonin Scalia’s death opened a vacancy on the Supreme Court, refused to confirm anyone that Obama nominated to fill this seat. It now appears, in other words, that no Democrat can get confirmed to the Supreme Court unless their party controls the Senate. So Democrats with Supreme Court ambitions also have no incentive to make nice with Republicans.

The way to get a high-powered judgeship is to convince your own political party that you will use that judgeship to advance its goals.

Republican judges are openly auditioning for the Supreme Court

Gorsuch and Kavanaugh are hardly the only judges who started advertising their ideological and partisan loyalty in an apparent effort to get ahead. The lower courts are now full of judges who write extreme and often needlessly provocative opinions that seem designed to catch the eye of someone in the White House.

The Ninth Circuit’s Lawrence VanDyke, for example, is a particularly vulgar judge who was reportedly on Trump’s short list for the Supreme Court during his first term. He’s best known for opinions mocking his colleagues and left-leaning litigants in a tone more often found on MAGA podcasts than in judicial opinions. VanDyke began an opinion about transgender women last March, for example, with the line “this is a case about swinging dicks.”

Or consider Andrew Oldham, a Fifth Circuit judge known for his opinions undercutting the First Amendment, attacking voting by mail, and standing up for vaping companies’ ability to sell bubblegum-flavored nicotine products — among other things. Oldham’s chambers is a factory pumping out decisions that even cause many of the Supreme Court’s Republicans to cringe — his vaping opinion was tossed out in a unanimous decision by Alito — but that also align perfectly with the Trump administration’s preferred policy outcomes.

The federal judiciary has become a partisan institution. And that means that the future of the courts is on the ballot every two years.

Or take Judge James Ho, Oldham’s colleague on the Fifth Circuit, who is also known for his trolly opinions attacking liberal shibboleths. Rather than attempt to summarize Ho’s jurisprudence, I will simply refer readers to my 2023 profile of him: “The edgelord of the federal judiciary.”

I could name more judges who behave similarly — I bring up these three largely because they’ve been discussed in the national media as potential Supreme Court candidates if Trump gets to appoint another justice. But there’s no need to belabor the point. The bottom line is that, if a vacancy does open up on the Supreme Court, Trump will have no shortage of judges who appear to have spent their judicial careers looking for opportunities to demonstrate just how eager they are to advance a MAGA agenda, even when that means moving several steps to the right of a Supreme Court dominated by conservative Republicans.

Indeed, the Missouri incident reveals just how widespread these sorts of judicial partisans are within the lower courts. None of the Republican judges who tried to reinstate the Missouri gerrymander after it was rejected by the Supreme Court, for example, have received the same attention that VanDyke, Oldham, and Ho have received as possible Supreme Court candidates. One of them, Judge James Loken, is an 86-year-old George H.W. Bush nominee with no prospects whatsoever of getting promoted.

But the culture in the lower courts has grown so open to partisan decisionmaking that he, along with two younger colleagues, literally tried to give the Republican Party an extra US House seat after the Supreme Court had told them not to do it twice.

Which isn’t to say that every Republican federal judge, or even every Trump appointee, is a partisan hack. One of the most pointed opinions rejecting Trump’s attempt to overthrow former President Joe Biden’s victory in the 2020 election, for example, was authored by Judge Stephanos Bibas, a Trump appointee. But, while Bibas’s opinion in Donald J. Trump for President v. Secretary (2020) was excellent, it also almost certainly guaranteed that he will never become a justice. And it absolutely guaranteed that he will never be nominated by Trump.

There’s no good solution to this problem

The biggest reason why America is stuck in this mess is that its two major parties have polarized on the proper role of judges. Even setting aside the youngest generation of hyperpartisan judges, it’s long been the case that any Republican nominated to the Supreme Court will be a reliable vote against causes like abortion rights, affirmative action, and the Voting Rights Act, and an equally reliable vote in favor of the “unitary executive” and for religious conservatives who seek exemptions from state and federal laws. Any Democrat, meanwhile, will take the opposite position on these, and a whole array of other issues where the two parties have consistent positions.

This is why restoring the old filibuster rules that existed prior to 2013 will not succeed in moderating the judiciary. If anything, allowing the minority party to filibuster judges again would mean that no one would ever be confirmed to the Supreme Court, because any nominee who is acceptable to one party would be radioactive in the other party.

Ultimately, the only effective way to keep people like Oldham, Ho, or VanDyke off the Supreme Court is to elect senators and presidents who do not want them on the Supreme Court. The federal judiciary has become a partisan institution. And that means that the future of the courts is on the ballot every two years.

In a 2016 opinion, authored one year before he became a Supreme Court justice, then-Judge Neil Gorsuch warned against lawyers who tempt judges to reach conclusions that aren’t supported by the Constitution’s text. “Ours is the job of interpreting the Constitution,” the future justice wrote. “And that document isn’t some inkblot on which litigants may project their hopes and dreams for a new and perfected tort law, but a carefully drafted text judges are charged with applying according to its original public meaning.”

Gorsuch might have gazed into a crystal ball when he wrote this line, because it could have been written with a case that is now before Gorsuch’s new Court — Suncor Energy v. County Commissioners of Boulder County — in mind. 

In Suncor, city and county officials in Boulder, Colorado sued the oil behemoth Exxon Mobil, along with a company named Suncor that operates two oil refineries in Colorado. They sued in Colorado state court, seeking, in their own words, to require the two companies “to share a portion of the costs [Boulder] taxpayers face in coping with a climate altered” by the oil industry.

That alone makes Suncor, which the justices will hear on October 5, a hugely important case, because it could be the first of many lawsuits ordering oil companies to compensate the public for the costs of climate change. But the stakes in this case are even higher because of the audacity of the oil companies’ argument to the justices. 

Exxon and Suncor claim that their clients should be immune from this suit, not because any particular provision of the Constitution grants them immunity, but because state courts are forbidden from hearing climate change lawsuits under something called the “structure of the Constitution.” The oil companies claim that there’s a rule against many state environmental suits buried somewhere in this “structure,” even though it cannot be found in the Constitution’s text. 

This argument exists in an entirely different universe than the Supreme Court’s precedents governing environmental suits, which explicitly permit — and even sometimes require — state courts to hear lawsuits alleging that a company in another state or country caused pollution that migrated across state or international lines.

But there’s a bigger issue at stake here, too. If you take seriously these justices’ pledged allegiance to textualism — and its close cousin, originalism, which, in Justice Amy Coney Barrett’s words, claims that “constitutional text means what it did at the time it was ratified and that this original public meaning is authoritative” — then Suncor should be an easy case. The oil companies’ failure to even articulate an argument rooted in constitutional text should be disqualifying.

But Exxon and Suncor clearly believe they can win the case while thumbing their nose at many of the justices’ purported allegiance to textualism and originalism. It’s not hard to guess why they would believe this. Increasingly, the same justices who evangelize for textualism and originalism ignore the Constitution’s text when necessary to achieve their political goals. 

There is no textual basis, for example, for the Republican justices’ claim that President Donald Trump may use the powers of the presidency to commit crimes. Similarly, the Court’s Republican majority recently invented something called the “major questions doctrine,” which allows the justices to veto federal regulations that they deem too ambitious, even though the full Court has never even attempted to justify this doctrine by citing the text of the Constitution or any federal statute.

Now, Suncor will be a test of just how far they will go, with big ramifications not just for climate lawsuits, but potentially for any lawsuit that seeks to declare a state or federal law unconstitutional..

What are the actual legal issues in Suncor?

Many of Boulder’s claims against the oil companies arise out of a tort law theory known as “nuisance,” which often allows someone who uses their property in a way that harms someone else to be sued. If your neighbor lights a trash fire in their yard that fills your house with noxious fumes, they have created a nuisance and you may have a viable lawsuit against them.

Often, these nuisance suits involve major environmental claims, and they also often involve claims that cross state lines or even international borders. In Ohio v. Wyandotte Chemicals (1971), for example, the state of Ohio sued chemical companies located in Michigan and Canada, claiming that they “each dumped mercury into streams whose courses ultimately reach Lake Erie,” thus poisoning Ohio’s waters. The US Supreme Court ruled that Ohio’s state courts should hear this lawsuit.

In Suncor, however, the oil companies claim that lawsuits arising out of climate change are special, and may not be heard by any state’s courts. Broadly speaking, these oil companies raise two arguments, one of which is easily refuted by quoting a statute; the other is their cockamamie claim that the “structure of the Constitution” prevents state courts from hearing Boulder’s lawsuit.

One of the oil companies’ claims is that Boulder’s lawsuit is “preempted” by the federal Clean Air Act. On the surface, this argument is at least plausible, as Congress does have the power to enact federal laws that effectively nullify a state law. The Constitution states that federal laws are “the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.” 

But the oil companies’ claim that the Clean Air Act preempts climate change lawsuits in state courts is weak. That law states that “air pollution control at its source is the primary responsibility of States and local governments.” And it states that, at least with respect to stationary polluters like factories, power plants, or Suncor’s refineries, “nothing in this chapter shall preclude or deny the right of” states to adopt or enforce air pollution standards or laws, unless the state’s rule is less stringent than what federal law requires. (The Clean Air Act does sometimes preempt state suits involving pollution caused by mobile sources, such as airplanes.)

So it’s pretty clear that the Clean Air Act does not bar state nuisance suits such as Suncor.

Which brings us to the oil companies’ claim that the Constitution’s “structure” somehow bars this suit. Their brief makes the extraordinary claim that “the Court has long held that interstate pollution is an inherently federal area in which state law cannot govern,” a claim that is easily repudiated by the Wyandotte Chemicals decision, among others.

In the same brief, the oil companies claim that the structural principle that only federal courts can hear climate change lawsuits can somehow be derived from an unusual approach to environmental lawsuits that the Court invented more than 100 years ago, and that it abandoned many decades ago.

In Missouri v. Illinois (1906), the Supreme Court heard a claim that Chicago, Illinois was dumping sewage in a river that eventually flowed into Missouri. Despite the fact that there was no federal law governing water pollution at the time, the Court apparently concluded that there should be some process that states can use to sue other states that do what Illinois was accused of doing. 

The Court’s opinion in Missouri weighed the evidence in the case before ruling in Illinois’s favor. So Missouri seemed to suggest that federal courts have some power to hear environmental suits even in the absence of an act of Congress permitting them to do so.

Based on this and similar older cases that reached similar conclusions, the oil companies claim that Missouri created a “federal common law” that governed interstate environmental lawsuits in the absence of a federal statute. And they also argue that this judicially created “common law” preempted certain state environmental lawsuits. They also argue that this preemption remains in place even though federal laws such as the Clean Air Act and the Clean Water Act have now displaced this federal common law.

Needless to say, that’s a lot of logical leaps. The oil companies’ argument is that an extra-statutory workaround that existed many decades ago still preempts state environmental lawsuits, even though that workaround no longer exists and has been replaced by an act of Congress. They also claim that this rule against state environmental suits can be found somewhere in the “structure” of the Constitution, despite the fact that it is nowhere in the Constitution’s text.

Among other things, this confusing argument is inconsistent with a case the Supreme Court decided as recently as April. As the Court said in Hencely v. Fluor Corp. (2026), “there is no federal pre-emption in vacuo,” a Latin term meaning “in isolation,” “without a constitutional text or a federal statute to assert it.”

So the oil companies’ claim that the “structure of the Constitution,” whatever the hell that means, somehow precludes climate change lawsuits in state courts should be easily dismissed. Further, as the Court said in Hencely, a litigant making a constitutional preemption claim must cite the text of the Constitution — and the oil companies have not done that here. 

The oil companies’ brief actually makes a pretty good policy argument for only allowing federal courts to hear climate change lawsuits

Setting aside the oil companies’ risible legal arguments, they actually make a decent argument that, as a matter of policy, it would be best if climate change cases were heard in one grand federal lawsuit rather than dozens of piecemeal suits brought in state courts.

Many different fossil fuel companies in both the United States and abroad have contributed to climate change. It may be impossible to determine which company is specifically responsible for any climate change-related problems that arise in Boulder, Colorado. And, because some of the responsibility for climate change falls on foreign actors, allowing a state court to adjudicate climate change-related suits raises difficult questions of international diplomacy. 

Additionally, the fact that the Clean Air Act treats pollution from stationary and mobile sources differently complicates this case even further. How is a court supposed to determine to what extent climate change in Boulder was caused by pollution emitted from oil refineries or power plants, rather than cars or airplanes?

But these are arguments that the oil companies should present to Congress, not the Supreme Court. It is Congress’s job to decide when to preempt state law. And there’s no question that Congress could pass a law shutting down lawsuits like Suncor, while simultaneously creating a federal process that will allow Americans who are injured by climate change to seek compensation in federal court.

Passing a federal law, however, requires compromise. It requires lawmakers to weigh the concerns of voters who don’t want the same outcome that Exxon wants. And, especially given the likely outcome of the 2026 midterms, it would require the oil companies to work with Democrats to come up with a legal framework that would actually earn some bipartisan support.

Instead, the oil companies want to bypass all that by getting a Republican Supreme Court to declare lawsuits like Suncor unconstitutional. And they are apparently so confident that they can convince these justices to do so that they barely even managed to articulate a legal argument for their position.

For the third time in just over two weeks, the Supreme Court declined to let Missouri Republicans jam through a maximal gerrymander, this time with an air of exasperation. 

There were no noted dissents. 

The Supreme Court on Friday let the Trump administration use its newly-expanded system to verify people’s citizenship status, which the dissenters argue both violates privacy laws and risks disenfranchising voters before the midterms.

This article is part of TPM Cafe, TPM’s home for opinion and news analysis. It was originally published at Balls and Strikes.

On the morning of Sunday, September 20, police officers in the Chicago suburb of Evanston responded to a 911 call about a confrontation in the street. When the officers arrived, they found a man on the ground who reported injuries to his head, neck, and teeth. Soon, the officers learned that the injured man was a U.S. citizen, and his assailants were federal immigration agents.

The Department of Homeland Security put out a statement on Tuesday claiming that the beaten man “resembled the target” of an immigration enforcement operation, and that he was “not cooperative” with agents’ investigation. “Once the individual finally identified himself,” said DHS, immigration officers “left the scene without further incident.” 

The Supreme Court will weigh in a third time on Missouri Republicans’ attempts to ram through a maximal gerrymander after twice rejecting those efforts. 

But Will Lawmakers Finally Act to Rein Vought In?

Top appropriators in Congress responded yesterday to White House OMB Director Russ Vought’s latest attempt to install political appointees as the final arbiters of congressionally appropriated grant money for scientific research.

“Republicans need to join us to put a stop to any effort by this administration to politicize what groundbreaking new treatments and cures we decide as a country to invest in,” Sen. Patty Murray (D-WA), the top Democratic appropriator, said.

“The Office of Management and Budget (OMB) should not be involved in agency decisions on the awards of grants,” Sen. Susan Collins (R-ME), the Republican chair of the appropriations committee, said.

The most recent scheme, as I wrote yesterday, involves an executive order — which is, reportedly, currently being drafted, to give political appointees control over spending on research by the National Institutes of Health. Vought, per the Washington Post, contends that NIH’s work remains too “woke.” Trump and Vought are both also annoyed, per Politico and the New York Times, that funding continues to flow from the agency to Harvard.

TPM’s interest in this story isn’t only about the fact that a politicization of NIH grants would be an authoritarian disaster — though it would be. It’s also that it is the latest chapter in a theme that has defined the Trump administration: expanding executive branch power, and marginalizing Congress — a campaign by Trump and his advisors to which the Republican-controlled legislature has largely acquiesced.

While Democrats denounced Vought’s power grab, the senator who really matters here is Collins, the top Republican on the appropriations committee. Collins, of course, is fighting for reelection in Maine, and her statement was relatively strong.

“Any attempt to politicize grantmaking at the National Institutes of Health (NIH), or any other agency, by another means — whether an Executive Order or guidance — is contrary to congressional intent,” she said.

“The Continuing Resolution — which passed the Senate, House, and was signed into law on September 2 – blocks OMB’s proposed rule or any substantially similar one,” she also noted.

Words, however, are cheap. As I wrote yesterday, the continuing resolution to fund the government, passed earlier this month, blocks the Trump administration from installing Trump’s political appointees to oversee research, but only does so until after the midterms. Republicans, Murray said last month, rejected a permanent block on the White House injecting itself into grantmaking.

This question will surface again after the midterms — and, likely, sooner, if this executive order sees the light of day, posing a direct challenge to Collins. We’ll see then if she, and Congress more generally, are willing to reassert their power of the purse in a lasting way.

Missouri Map Heads Back to the Supreme Court Yet Again

The Supreme Court has already twice weighed in on a fight that has been playing out in recent weeks in Missouri, after the state’s secretary of state, Denny Hoskins, chose the route of chaos by effectively ignoring a petition by voters to choose which map the state votes under. At issue are two maps — a 2022 one and a deeply gerrymandered one the state legislature passed in 2025 at Trump’s urging.

• The Supreme Court has twice effectively required the midterm elections to go forward under the 2022 map, and the state Supreme Court blocked the 2025 map. Many experts believed the issue was settled, at least until after the election.
• But an appeals court Monday night ruled that the state must use the 2025 map, opening a new chapter of this chaotic story. The state, Democracy Docket notes, has already distributed ballots.
• The appeals court reasoned that requiring voters to cast ballots in different maps in the primary and general elections — the outcome of Hoskins’ scheme to plow forward with primaries under the new map, despite the voter challenge to it — would violate the Constitution.
• An activist group that has been fighting the 2025 map for a year, People Not Politicians, is seeking emergency review from the Supreme Court.
• Big picture, the fight is over one congressional seat, focused on Kansas City, and the shape of others in the state. The 2025 map would likely flip that Kansas City seat, currently held by Rep. Emmanuel Cleaver, from Democratic to Republican.

Tabs

• Speaking of Susan Collins … an FBI probe of a defense contractor bribery scheme was on the cusp of investigating politicians of both parties who had accepted donations from the company in question — including, prominently, Susan Collins, ProPublica reports. Then Trump returned to the White House, and ended nearly all public corruption work at the DOJ.
• Trump and New York Mayor Zohran Mamdani met yesterday and emerged before reporters with almost nothing but praise for each other, Politico reports.

Man of the Hour

It’s Sen. John Cornyn, who continues to create some drama — now by headlining a fundraiser in Dallas that will raise money for Republican Senate candidates in Maine, Ohio, Alaska, Iowa, Michigan, New Hampshire and Minnesota. But not Texas, the state where Cornyn and his co-headliner, George W. Bush, are from, and where the fundraiser is being held. The Senate candidate there is Ken Paxton who — of course — beat Cornyn in the primary.

Are We at War?

Just as the Trump administration is trying to quiet the Iran war down before the midterms, Iran, per an MS NOW report, is trying to do the opposite: ramp it up, and drive oil prices as high as possible.

If you felt a gust of wind late on Friday, it came from hundreds of immigration lawyers who simultaneously exhaled after the Supreme Court announced it would not hear a case known as Genalo v. Black. That case asked whether certain immigrants could be held in immigration detention facilities indefinitely without ever receiving a bond hearing or other opportunity to seek temporary release. And if the Court had decided this case, its recent immigration decisions suggest that most of the justices may have blessed indefinite detention.

The Black case originally concerned two lawful permanent residents of the United States who were arrested during the first Trump administration because of crimes the two men committed years before, and that they had already served prison sentences for committing. 

These immigrants were arrested because of a federal law, which provides that the federal government “shall take into custody” noncitizens who committed certain crimes or who are accused of involvement with terrorism so that the government may begin deportation proceedings against these individuals. This law does not allow these noncitizens to challenge their detention while their deportation case is pending. (Notably, the relevant federal law sometimes allows an immigrant to be detained without hearing if they are merely suspected of terrorism, which means the person could be detained indefinitely based on false allegations.)

Both men sued, claiming that it is unconstitutional to hold them for too long without some kind of hearing to determine whether they should be released after paying a bond. And a federal appeals court agreed, holding that “due process bars the Executive from detaining such individuals for an unreasonably prolonged period…without a bond hearing.” 

Thus, Black was more than just another flash point in America’s debates over immigration. It was a test of one of the most fundamental protections that a liberal society provides to its residents — the right not to be locked up, forever, without any way to challenge the basis of that detention. 

Now that the Supreme Court has removed the Black case from its own docket, this appeals court decision will not be formally repudiated by the Supreme Court. So immigrants who are detained indefinitely may still ask courts to give them a bond hearing — at least for now.

Still, the Court’s nondecision in Black leaves a cloud of uncertainty hanging over similarly situated immigrants. The Trump administration will no doubt continue to detain people for prolonged periods of time (most of whom won’t be able to obtain a gubernatorial pardon, like one of the men was in this case). And the question of whether these immigrants can be detained forever will remain unresolved until the Supreme Court takes up another case involving a similarly situated immigrant.

Why the case was dismissed 

Both men at the heart of the Black case spent significant amounts of time in immigration detention facilities years after serving sentences for crimes. One, a Jamaican citizen named Carol Williams Black, spent seven months in an immigration detention facility. The other, Keisy Guerrero Mariano, spent 21 months in detention without a bond hearing or other procedure that could allow him to seek release while his case was pending. These 21 months in immigration detention more than doubled the time he spent in New York state prison for his actual crime — he pled guilty to second-degree assault after he got into a fight outside a New York City restaurant.

But there is no longer a legal dispute about what should happen to either man — in the words of the law, both cases are now moot. Black has since been released from detention and says that he “made the difficult decision to leave the United States” and has no intention to return. And the Trump administration’s case against Guerrero Mariano went up in smoke in late August, after New York Gov. Kathy Hochul gave him a pardon — thus wiping away the conviction that allowed the Trump administration to detain Guerrero Mariano in the first place.

Guerrero Mariano is one of six individuals that Hochul pardoned at the time. In her official announcement, she said that she did so because these six people “have demonstrated remorse, exemplified rehabilitation and displayed a commitment to improving themselves and their communities.”

There’s also a great deal of evidence indicating that Hochul pardoned Guerrero Mariano in order to resolve his immigration case — and potentially keep the Supreme Court from deciding Black. Among other things, the actual pardon document signed by Hochul specifically states that it will grant Guerrero Mariano “relief from removal.” Guerrero Mariano’s lawyers had sought this pardon, and Hochul granted it mere days before his brief was due in the Supreme Court. 

That brief’s very first sentence, moreover, states that Hochul “granted Respondent Keisy G.M. a full and unconditional pardon of the state criminal conviction that is the sole basis for his removal,” and it urges the justices to dismiss the case as moot.

Last Thursday, Trump’s Justice Department joined a stipulation calling for the justices to dismiss the case against Guerrero Mariano, most likely because even they recognized that a lawful permanent resident with no conviction may not be detained. The Court granted that request on Friday.

So that’s good news for Guerrero Mariano, who presumably will now be able to live freely in the United States. 

Guerrero Mariano’s lawyers were right to fear a trip to the Supreme Court

It’s possible that the Supreme Court might have agreed with the lower court’s holding that immigrants who are detained for an “unreasonably prolonged period” have a constitutional right to a bond hearing — this Court has, on rare occasions, broken with the Trump administration in immigration cases. But those decisions are few and far between.

Among other things, this Court has allowed President Donald Trump to deport immigrants back to war zones. The Court’s Republican majority effectively nullified the Convention Against Torture, a treaty that is supposed to protect immigrants from being deported to nations where they will be tortured. The Court also blessed so-called Kavanaugh stops, which permit suspected immigrants to be racially profiled so long as their race or ethnicity isn’t the sole reason why they are stopped by law enforcement.

Moreover, while the US Court of Appeals for the Second Circuit’s decision in Black — the one holding that immigrants like Guerrero Mariano may receive a bond hearing if their detention is “unreasonably prolonged” — reached a plausible legal conclusion, this conclusion was not a slam dunk under the Supreme Court’s previous precedents. And that means that the justices could have easily come up with a reason to reverse that decision if they wanted.

On the one hand, the Court said in Zadvydas v. Davis (2001) that “a statute permitting indefinite detention of an alien would raise a serious constitutional problem.” On the other hand, the Court held in Demore v. Kim (2003) that an immigrant similarly situated to Guerrero Mariano may “be detained for the brief period necessary for their removal proceedings.” 

Read together, these decisions suggest that the government does have some power to detain people while their immigration case is pending. While Zadvydas indicates that this detention can go on for too long, the Court has never established when an immigrant’s detention has stretched too long. So that means that the justices would have a fair amount of leeway to allow prolonged detentions without defying any of their previous precedents.

So it’s clear why everyone from Guerrero Mariano’s lawyers to Hochul seemed concerned about what would happen if the Court decided this case. In the worst-case scenario for immigrants, Trump could have gained the power to lock many people up for years without any meaningful way to challenge their detention. In the best case, the Supreme Court may have reached the same conclusion as the Second Circuit — but even that decision was vague about how long an immigrant must be detained before they must receive a bond hearing.

In any event, the bottom line is that the Court’s decision to dismiss the Black case is good news for Guerrero Mariano. But that dismissal merely delays a reckoning for other immigrants who face prolonged detention while their case is pending.

This article is part of TPM Cafe, TPM’s home for opinion and news analysis. It was originally published at Balls and Strikes.

For months, President Donald Trump has been coping with his myriad failures and plummeting approval ratings by trying to make it harder for people to vote his party out of power in the 2026 midterms. To that end, in March, he issued an executive order that would require the U.S. Postal Service to draft a rule that would upend vote-by-mail procedures in dozens of states, and effectively block the agency from processing ballots that do not comply with the rule’s exacting requirements. Trump did not attempt to hide his motives for doing so: Legal restrictions on mail-in voting, he told Republican lawmakers, would “guarantee the midterms” for a party that is otherwise in danger of losing them badly.

On Monday evening, the Supreme Court handed down its long-awaited decision in United States Postal Service v. California — the case involving President Donald Trump’s attempt to sabotage voting by mail in the United States. 

If Trump’s attack on mailed ballots had succeeded, it would have given a significant advantage to Republicans in the upcoming midterms because Democrats were much more likely to vote by mail than Republicans in the last several US election cycles. 

The decision is a rout. Trump didn’t just lose; the Court’s brief order slips in a line indicating that Trump exceeded his authority and cannot implement such an attack on voting by mail under any circumstances. Not one member of the Court, including the dissenting justices, argues that Trump had the power to shut down voting by mail in the way he attempted to. Trump, in other words, found a line that even this Supreme Court would not let him cross.

The decision in USPS is also the second Supreme Court decision in less than a week that shuts down a Republican Party effort to skew the 2026 midterms in its favor. Last week, the Court ruled that the state of Missouri must use the same congressional maps it used in 2024 (which elected two Democrats), instead of new maps that were expected to elect seven Republicans and only one Democrat.

All of this, from a Court where Republicans hold six of nine seats, and where that Republican majority is often unafraid to go out on a limb to benefit the GOP and its leaders. This is, after all, the same Court that held that Trump is allowed to use the powers of the presidency to commit crimes. 

So what’s going on?

The short answer is that, as the Court moves rightward, the mix of cases that reaches the Supreme Court also changes. Liberals and Democrats — or, at least, savvy liberals and Democrats — stop bringing lawsuits that rest on legal theories that right-leaning judges are unlikely to accept. Republicans, meanwhile, grow more brazen and start bringing cases that would be summarily rejected by a less friendly bench. And red-state lawmakers decide to roll the dice on laws that would be immediately declared unconstitutional if the federal courts were less Republican.

As Dartmouth political scientist Brendan Nyhan wrote after the Court (despite its Republican majority) had an unusually liberal term in 2015, “the court’s recent decisions may reflect a change in the cases being considered by the court rather than a shift in the preferences of the justices.”

Eventually, however, lawyers and policymakers who raise dubious legal theories or who enact clearly illegal policies will do something that is so beyond the pale that the justices will start to push back, and that’s what happened in USPS. Republican lawyers and policymakers will undoubtedly make more attempts to skew the midterms in the coming weeks. At the very least, the USPS decision shows that there are some limits to what this Court will tolerate.

Trump lost, badly

Trump’s attack on voting by mail wasn’t just illegal; it also imposed such heavy burdens on state election officials so close to the 2026 election that it likely would have been impossible for many states to comply with Trump’s new policy.

USPS concerned a wide range of new restrictions on mailed ballots that the Trump administration announced in late August, just weeks before states needed to start mailing those ballots to voters. Among other things, the new rules required states to mail ballots in envelopes that include several federally mandated design features. These envelopes were to be preapproved by a federal official, and the Postal Service would refuse to deliver ballots that do not comply.

The new rules also required state officials to enter certain voter data into an online platform that doesn’t actually exist yet, but that the Trump administration has insisted will be available anytime now.

Many of the new rules appeared designed to make it impossible for states to distribute ballots by mail. One new requirement, for example, was that mail ballot envelopes must be individually scanned in a process that the Trump administration claimed will take “less than a minute per mailpiece.”

But, as several states that sued to block the rules pointed out in their complaint, California alone needs to mail 23 million ballots to voters. So that adds up to as much as “23 million minutes…or more than 43 years” that state officials would need to spend just to comply with one small part of the new regulations.

Trump had claimed that vague statutes that permit the Postal Service to adopt rules governing the “collection, handling, transportation, delivery, forwarding, returning, and holding of mail” or to make rules “as may be necessary in the execution of its functions” allow him to effectively shut down voting by mail throughout the United States.

Broadly speaking, the Court could have blocked these new requirements in two ways. They could have either concluded, as several lower courts already have, that the Trump administration lacks the legal authority to issue the new rules. Alternatively, the Court could have concluded that it would not be “equitable” to allow the new rules to go into effect during the 2026 election, given the high likelihood that states could not comply with them.

A majority of the justices, however, decided to go with both options. Though the Court’s order is brief — only three sentences long — it states both that Trump is “unlikely to succeed on the merits” of his claim that the new rules are legal, and also that “the equitable factors applicable for obtaining emergency relief from this Court do not favor” Trump. 

Translated from the legalese, that means that most of the justices concluded both that the new rules cannot be implemented in 2026, but also that they most likely cannot be used in any election because the Trump administration lacks the authority to implement them. 

Justice Samuel Alito is the Court’s most reliable Republican Party partisan, and so he did write a dissent, joined by Justice Clarence Thomas, that would allow Trump’s attack on mailed ballots to take effect. But it’s notable that even Alito doesn’t try to argue that Trump’s rule is legal. Instead, Alito makes a convoluted procedural argument that, he claims, allows Trump to dodge judicial review of his new rules — at least for now.

Briefly, Alito argues that federal law makes it relatively easy for plaintiffs to challenge Postal Service rules governing “the mailability of matter,” but much harder to challenge rules that do not concern what can be mailed. He also claims that Trump’s new rules do not count as restrictions on “mailability,” even though those rules would forbid the Postal Service from delivering ballots that do not comply with a labyrinth of new restrictions.

Alito, in other words, is clearly much more willing to excuse weak arguments from the leader of his own political party than are many of his colleagues. But the biggest takeaway from the USPS decision is that not all of the Court’s Republicans are incapable of shame. 

The Court’s Republican majority is extraordinarily tolerant of Trump’s antics. They gave him the right to commit crimes. They ruled that Trump may order the Justice Department to bring “sham” investigations and prosecutions against his perceived enemies. They’ve largely immunized ICE officers from the law, and blessed “Kavanaugh stops” that target suspected immigrants because of their race.

But there is apparently still a line that most of the Republican justices will not allow Trump to cross. And shutting down voting by mail a couple of months before an election crosses that line.

One Crisis Averted

Kate Riga has the details here, but a moment we’ve long been anticipating arrived last night: The Supreme Court ruled on Trump’s mail-in voting executive order. It blocked it, at least for now. That likely settles it — at least for this election. “The ruling is a titanic one before the midterms,” Kate writes, “and a major loss for the Trump administration as it seeks to influence the election by attacking absentee voting.”

Justice Brett Kavanaugh suggested he might support the dramatic scheme the Postal Service had cooked up to comply with Trump’s executive order — but not so close to the midterms. “There is at least a fair prospect that the final rule falls within the Postal Service’s statutory authority,” he wrote. But “state and local election officials do not have sufficient time to reasonably implement the rule before the elections.”

There were two justices who wanted the rule to go forward: Sam Alito and Clarence Thomas. In a dissent authored by Alito and joined by Thomas, they argued that the Postal Service had the authority to promulgate and implement the rule, and that that was the end of the story.

It’s hard to overstate the dramatic nature of what the Postal Service was up to; it prompted alarm from election workers and whistleblowers within the USPS itself. The new system featured multiple ways in which not just a single mail ballot but whole reams of ballots could be rejected based on, simply, an error on one. Setting that aside, it created a scenario in which, election experts calculated, ballots would take weeks or even years to be processed. It raises questions about “whether catastrophic failure would be a feature rather than a bug,” lawyers for the Postal Service whistleblower wrote.

Election law scholar Rick Hasen noted that Alito’s dissent made no mention of what the rule would do to the midterms. “The voters make no appearance whatsoever in Justice Alito’s reasoning,” Hasen wrote. “He, like the government, does not dispute that using the rule in 2026 would disenfranchise millions of our most vulnerable people. He doesn’t care. It’s despicable and antidemocratic.””

Whistleblower Details DHS’ ‘Voter Fraud’ Push

As part of the Department of Homeland Security’s (so far, it seems, not very successful) effort to scrounge up some instances of voter fraud that the administration can tout ahead of the midterms, officers have been scouring states’ voter rolls, and plugging individual voters’ names and other information into states’ public-facing voter websites, which are meant to be used by the voter themselves to check their registration.

As part of this push, a whistleblower alleges, agents may be breaking the law.

• According to the whistleblower, officers received little training — just an instructional video, some links to states’ voter registration websites, and a power point presentation.
• With that preparation, they are expected to comb through “the personal information of tens or hundreds of thousands of individuals throughout all 50 states, including US citizens,” according to lawyers for the whistleblower. “Officers are supposed to review and determine if the information belongs to an ‘unlawful voter’ and were given a quota of at least five subjects to be reviewed per hour.”
• In a letter to DHS Secretary Markwayne Mullin, Senators Chuck Schumer (D-NY) and Alex Padilla (D-CA) demanded answers to a list of questions, including one noting that the slipshod investigation, as described, could lead to baseless criminal investigations. “It equates to approximately 12 minutes per subject – a completely inadequate timeline for investigating and reconciling multiple Alien Registration Numbers mistakenly or inadvertently issued to an individual, increasing the likelihood of error,” the senators wrote. “Individual cases identified by this initiative can then be taken up by HSI for further action, including criminal investigations.”
• The whistleblower also expressed concern that by effectively posing as a voter to plug identifying info into these state websites, officers were breaking the law. Training materials asserted that officers were “not personally liable for conducting these searches when done as part of their official duties and properly documented,” suggesting DHS was, in fact, aware of that issue.