In May 2025, Newark Mayor Ras Baraka, a Democrat, arrived at an ICE detention facility in his New Jersey city and asked for a tour. Though he was initially let inside the facility’s gate, he was soon confronted by about a dozen federal law enforcement officers and asked to leave. And so he did.

For a moment, that seemed like it would be the end of this incident, but then one of the officers had a phone call. A video, later submitted to a federal court, shows this officer turning to his fellow law enforcers after the call and informing them, “We are arresting the mayor right now, per the deputy attorney general of the United States.”

That deputy attorney general was Todd Blanche, who is now the acting leader of the Department of Justice. On Wednesday, President Donald Trump announced that he would nominate Blanche to become the Senate-confirmed attorney general of the United States.

The practical stakes of this nomination are fairly low. Federal law provides that if the attorney general’s job is vacant, “the Deputy Attorney General may exercise all the duties of that office.” And the Senate already confirmed Blanche as deputy AG (or “DAG” as the job is known within the DOJ). So, Blanche has already been leading the Justice Department since former Attorney General Pam Bondi’s exit in April, and, one way or another, he will continue to do so.

But Trump’s decision to nominate Blanche reveals the president’s confidence in a man who has distinguished himself solely by his willingness to act as Trump’s toady. If he’s officially confirmed, that is not likely to change.

Blanche is Trump’s goon

Blanche was Trump’s personal lawyer before he arrived at the Justice Department. As DAG, Blanche oversaw the Justice Department’s criminal investigations and prosecutions, including the DOJ’s 93 regional US Attorneys’ offices and law enforcement agencies such as the FBI.

That means that Blanche’s involvement in the Baraka arrest wasn’t an isolated incident — at a hearing formally dismissing the charges against Baraka, a federal magistrate judge scolded the DOJ for “using the immense power of the government to pursue weak cases or to make examples without sufficient cause.” Blanche was the senior Justice Department executive overseeing political prosecutions targeting a wide range of Trump’s perceived enemies, including former FBI Director James Comey and New York Attorney General Letitia James.

Trump reportedly decided to remove Blanche’s predecessor, Bondi, in part due to the president’s belief that Bondi “was not moving forcefully enough against the White House’s supposed political enemies.” Since taking over Bondi’s job duties, Blanche appears to have worked hard to reassure Trump that he will not make the same mistake.

Although a federal court dismissed the first round of federal charges against Comey, the Blanche-led department reindicted Comey for posting a picture of seashells arranged to form the numbers “86 47.” “86” is restaurant slang often used to say that an item should be removed or is unavailable. “47” is a reference to Trump, the 47th US president.

A message saying that the sitting president should be removed is obviously protected by the First Amendment, but Blanche’s Justice Department claims that the former FBI director was threatening Trump’s life.

Similarly, under Blanche’s leadership, the Justice Department reportedly launched a criminal investigation into E. Jean Carroll, a magazine writer who won $88.3 million in damages against Trump after a jury found Trump liable for sexual abuse and defamation.

Blanche’s primary qualification for the attorney general job, in other words, appears to be his eagerness to use the awesome power of the Department of Justice as a weapon against people who have previously slighted or fought Donald Trump.

Blanche was also the face of Trump’s $1.8 billion “slush fund”

Blanche was also a central figure in a Trump-led scheme that closely resembles embezzlement.

Last month, Blanche’s Justice Department announced the creation of a $1.776 billion “Anti-Weaponization Fund” that could be used to distribute money from the US Treasury to Trump’s allies, including participants in the January 6 insurrection at the US Capitol. The fund would have been administered by five people chosen by Blanche.

A DOJ press release announcing the fund states explicitly that the fund was “established” by the “Attorney General,” a role that is being carried out by Blanche.

One problem with this fund is that the Constitution prohibits money from being drawn from the Treasury without congressional approval. The Justice Department was apparently involved in the fund as part of a scheme to get around this constitutional requirement. 

While Congress never authorized this slush fund — indeed, the slush fund appears to have been killed due to bipartisan opposition to it in Congress — there is an existing federal law that permits the Treasury to pay plaintiffs who successfully sue the federal government. So Trump filed a fake lawsuit against the United States. His lawyers then “settled” this lawsuit with the Justice Department, which is led by Blanche, who is also Trump’s former personal lawyer.

In a different presidential administration, a Cabinet official’s involvement in such a scheme would lead to their resignation, or worse. Again, Todd Blanche effectively conspired with Trump to steal nearly $1.8 billion from the US government. He also humiliated Trump and antagonized Congress by signing off on this scheme.

But in the Trump administration, loyalty is valued far more than competence or adherence to the law. As acting AG, Blanche repeatedly targeted Trump’s perceived enemies and he helped orchestrate one of Trump’s most cockamamie schemes. So, instead of demanding his resignation, Trump wants to promote Blanche.

One open question, however, is whether Blanche will be successful as Trump’s enforcer. Bondi turned out to be a rank incompetent when she took over the Justice Department, and DOJ’s Bondi-era attempts to target Trump’s enemies largely fizzled. Blanche’s inept management of the $1.8 billion slush fund may be an early sign that he is no better.

The Supreme Court announced on Thursday that it will not decide Hamm v. Smith, a case involving a genuinely difficult constitutional question about whether an Alabama inmate may lawfully be executed.

The immediate upshot of this decision is that Joseph Clifton Smith, who’s at the heart of this case, will not be killed. Smith prevailed in the federal appeals court that previously heard his case. And the fact that the justices decided not to decide Hamm — they dismissed it “as improvidently granted,” to use the Court’s precise legal terminology — means that Smith’s victory in the lower court stands.

Though the full Court issued no opinion in Hamm, six justices joined at least one of three concurring or dissenting opinions revealing how they thought the case should have been decided. Justice Sonia Sotomayor’s concurring opinion offers a likely explanation for why her Court chose to make this case go away. Meanwhile, Justices Clarence Thomas and Samuel Alito’s dissenting opinions reveal some riffs among the Court’s Republicans.

In Atkins v. Virginia (2002), the Supreme Court held that it is unconstitutional to execute someone with an intellectual disability. The Hamm case largely turned on whether Smith’s IQ is low enough that he qualifies as intellectually disabled. But most of the justices appear to have thrown up their hands and determined that they are not well-positioned to determine Smith’s IQ.

Sotomayor’s opinion suggests that Alabama may have lost this case because of inept lawyering. Among other things, she points out that none of the expert witnesses that testified in a lower court, including Alabama’s own expert, used the same methods to determine Smith’s IQ “that Alabama now claims is necessary.” 

At least some constitutional protections against capital punishment are probably safe, for now.

Because the Supreme Court has the final word on questions of constitutional law, the justices are supposed to be reluctant to decide questions that are not fully vetted by lower courts, due to the risk that the Court could hand down an uncorrectable error if it decides a case too hastily. Thus, Sotomayor argues that her Court was right to “exercise caution” by not handing down the definitive word on a constitutional question that was not fully aired in other forums.

Meanwhile, at least some of the Republican justices appear to have backed away from more hardline positions that they took in the past. That means that at least some constitutional protections against capital punishment are probably safe, for now.

Most of the Republican justices appear to have made peace with Atkins

The Court’s right flank has historically opposed Atkins altogether. The late Justice Antonin Scalia, for example, claimed in Atkins that only “severely or profoundly” disabled people — perhaps those with an IQ of 25 or lower — are protected from execution. But, under the Atkins framework, people with an IQ of 70 or below are often ineligible for the death penalty. And people who test slightly higher than 70, such as Smith himself, may also sometimes show that they are intellectually disabled by pointing to other factors besides IQ.

But only Thomas, who wrote a dissenting opinion in Hamm that was joined by no one else, called for Atkins to be overruled.

It’s particularly surprising that Justice Neil Gorsuch, who previously has expressed very hardline views in death penalty cases, appeared to chart a more moderate course in Hamm. Gorsuch seemed to suggest in Bucklew v. Precythe (2019) that his Court should toss out the entirety of its past 60 years worth of cases interpreting the Eighth Amendment’s ban on cruel and unusual punishments, and instead adopt a new rule that would allow the government to impose very high penalties for minor crimes. 

But, of the three Hamm opinions, only Thomas cited Bucklew. And Gorsuch neither joined Thomas’s opinion nor did he join some parts of Alito’s opinion, which called for harsher rules in Atkins cases. So it appears that Gorsuch’s Bucklew opinion may be an orphan.

Alito, meanwhile, wrote a bifurcated opinion, major parts of which were joined by a total of four justices — Alito, Chief Justice John Roberts, Thomas, and Gorsuch. But only Thomas joined the part of Alito’s opinion which called for the most limits on Atkins.

The parts of Alito’s opinion that were joined by four justices largely concern the unusual facts present in Hamm. 

It’s safe to say that Smith’s claim that he is intellectually disabled is marginal. While courts consider whether a capital defendant’s IQ is below 70 in order to determine if that defendant is intellectually disabled, Smith took several tests that measured his IQ somewhere in the 70s — and none of them showed that he has an IQ of 70 or below.

Under the Court’s previous death penalty cases, the fact that a death row inmate tests slightly above 70 is not fatal to his Atkins case — in part because IQ tests have a margin of error and may overestimate a test subject’s IQ. But Alito essentially argues that someone like Smith, who took multiple tests that showed him with an IQ above 70, may be executed.

In the part of his opinion joined only by Thomas, meanwhile, Alito claims that “‘higher scores are likely to be more indicative’ of a person’s intelligence than the lower scores,” a rule that would potentially doom capital defendants with a wide range of scores, some of which are below 70.

Still, it’s notable that Alito focused his opinion so closely on the minutiae of the Hamm case, without making broader attacks on Atkins or on the general rule that intellectually disabled people may not be executed. It is tough to evaluate where the full Court stands on Atkins, as three justices — Elena Kagan, Brett Kavanaugh, and Amy Coney Barrett — were silent in Hamm. But it now appears likely that the Court’s current majority does not plan a wholesale assault on Atkins, or on the Court’s broader framework for determining which punishments are impermissible. That’s good news for inmates whose lives could be spared by Atkins and similar cases.

The Court’s Republican majority is often hostile to past precedents that were decided by more liberal justices. Indeed, at times, they appear to have been going through a checklist, overruling decisions where the Court’s right flank lost and transforming dissents by justices like Scalia or Thomas into majority opinions. But, for now, at least, it appears that Atkins is not on this Court’s checklist.

Justice Brett Kavanaugh is a Republican. He served in a Republican White House, typically votes with the Court’s other Republicans, and even sometimes sides with President Donald Trump in major cases that divide the Republican Party. He’s not the sort of person you’d expect to carry a torch for a liberal cause for nearly four full decades.

But, well, he did. In Kavanaugh’s majority opinion in Pitchford v. Cain, which was handed down on Thursday, the justice more or less implemented a proposal for how to prevent racism from infecting jury selection that he first proposed in a 1989 piece that he published when he was still a law student.

To be clear, Kavanaugh’s Pitchford opinion doesn’t really break much new ground. It involves a straightforward violation of Batson v. Kentucky (1986), the Supreme Court’s most important precedent governing race in jury selection, and rules in favor of the person on death row who brought this fairly clear-cut violation to the Supreme Court’s attention.

Still, Pitchford was a 5-4 decision, with four of Kavanaugh’s fellow Republicans joining a dissent by Justice Neil Gorsuch. So the decision could have easily come down the other way if one of the Republican justices hadn’t developed a liberal approach to Batson before he started his legal career. Sometimes, even Supreme Court justices — arguably the most highly vetted political appointees in the entire federal government — contain multitudes.

Again, Pitchford is a fairly easy case. In a less ideological Supreme Court, the incarcerated person at the heart of this case might have won unanimously. But the decision does suggest that left-leaning advocates can sometimes prevail in this Court by appealing to the idiosyncratic views of some of the Republican justices.

Kavanaugh’s long-standing approach to race in jury selection, explained

In 1989, Kavanaugh published a “note” in the Yale Law Journal. Notes are student-authored works of legal scholarship, which often examine an important recent legal development. High-achieving law students frequently choose to write these notes because it gives them a published exemplar of their own legal writing skills that they can share with potential employers.

The surprising twist is that in his 1989 note, Kavanaugh — who, of course, would go on to become one of the most powerful Republicans in the United States — chose to advocate for a cause that is ordinarily associated with liberals. Published three years after the Supreme Court handed down Batson, Kavanaugh’s note, which is titled “Defense Presence and Participation: A Procedural Minimum for Batson v. Kentucky Hearings,” argued that the Court’s recent decision protecting against racism in jury selection should be read to include certain procedural protections for criminal defendants.

In criminal trials, both the prosecution and the defense often get a limited number of “peremptory challenges,” which they can use to remove a potential juror from the jury pool for virtually any reason. These peremptory strikes may be used to remove a juror because the prosecutor doesn’t like the juror’s haircut, because the defense counsel thinks a juror looked at their client suspiciously, or because counsel doesn’t like having jurors whose name begins with the letter “M.” 

But the Constitution prohibits prosecutors from removing a juror because of that juror’s race. 

As Kavanaugh explains in his Pitchford opinion, Batson sets up a three-step process to determine whether prosecutors did, in fact, remove a juror for impermissible racial reasons. After the defense counsel objects to the removal of a particular juror or group of jurors (step one), the prosecutor typically must give a race-neutral explanation for why they wanted the juror removed (step two). At step three, Kavanaugh writes, “defense counsel has an opportunity to rebut the prosecutor’s race-neutral reason as pretextual,” and then the judge has to decide who is telling the truth.

Kavanaugh’s 1989 note argues that courts must ensure that this third step is complied with; he wrote at the time that “the defense should have an opportunity to rebut the prosecutor’s reasons before the trial judge decides whether to allow the prosecutor’s peremptories.” His opinion in Pitchford makes a very similar argument.

In Pitchford, prosecutors in a Mississippi murder case used their peremptory challenges to remove four of five potential Black jurors from defendant Terry Pitchford’s jury pool. Defense counsel objected on Batson grounds, and the prosecutor gave race-neutral explanations for targeting these jurors. (The prosecution claimed that one juror was removed because they arrived late to court, two because they had brothers convicted of violent offenses, and one because he, like the defendant, was a young father.) 

But the trial judge never gave defense counsel an opportunity to rebut these explanations. The judge simply deemed the prosecutor’s explanations acceptable and moved on.

This, Kavanaugh writes in Pitchford, is not allowed. In a sentence that mirrors the argument he made in 1989, the justice writes that “after a prosecutor asserts race-neutral reasons for a peremptory strike, the defense counsel must at least have an opportunity to argue that the asserted race-neutral reasons were not the actual reasons—that is, the reasons were pretextual.”

So how did this easy case produce a four-justice dissent?

To be clear, it’s not exactly a stretch for Kavanaugh to argue that, when Batson said that courts must use a three-step process to resolve jury discrimination claims, all three steps are mandatory. At most, Pitchford makes explicit something that was already implicit in US law.

But Pitchford was complicated by a federal law, the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), that makes it difficult for convicted offenders to challenge their convictions or sentences in federal court if they were first tried in state court. To prevail in such a federal challenge, Pitchford must show that state courts handed down a decision that “was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States” or “was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” 

Given this high bar placed in front of people who wish to challenge state-level convictions or sentences, a federal judge who wants to leave the state court’s decision in place will almost always be able to find a way to do so. And Gorsuch’s opinion does just that. 

The dissent’s primary argument is that Pitchford waived his Batson argument because, while his lawyers raised it in the trial court, they did not provide enough detail about how, specifically, the trial judge violated Batson when they raised this objection. As a general rule, lawyers may not raise an argument on appeal unless they also raised that argument in the trial court.

That’s not a very good argument, because, as Kavanaugh explains, defense counsel raised their Batson argument multiple times at trial. And, after one of these objections, the trial judge “explicitly assured Pitchford’s counsel that the Batson objection was preserved.” So it would have been odd — and could have potentially antagonized the judge — if defense counsel had elaborated further on their Batson argument after the judge effectively told them to drop the issue and take it up in the appeals courts.

But the fact remains that Pitchford barely prevailed in the Supreme Court. And, if not for the fact that Kavanaugh appears to have developed the view that all three prongs of Batson’s process are mandatory in law school, this case would have likely come out the other way.

Liberal victories aren’t exactly common in this Court, but they also aren’t so rare that they are unimaginable. In this case, one of the justices appears to have formed an opinion on a politically contentious issue before he fully embraced the broader worldview that he needed to have in order to score political appointments in a Republican administration. And that means that, at least in cases involving jury discrimination, criminal defense lawyers will sometimes find a sympathetic bench in the Supreme Court.

Here’s a familiar story. On Tuesday night, the Supreme Court handed down a decision that will almost certainly give the Republican Party an additional seat in the US House of Representatives. Not all of the justices disclosed how they voted, but the decision appears to have come down 6-3 along partisan lines — that is, the six Republican justices voted to give the GOP another House seat, while the Court’s three Democrats dissented.

In fairness, the GOP justices’ most recent decision in Allen v. Milligan fits a broader pattern in this Supreme Court’s gerrymandering cases that can be explained without accusing those Republican justices of deciding election cases solely on the basis of partisanship. The Court has spent the past seven years dismantling all federal safeguards against gerrymandering. 

Allen fits this pattern. On its face, the Republican justices’ brief opinion in the case is just the next iterative step toward a legal regime where states can draw maps however they want, regardless of whether those maps are drawn to favor one political party, or whether they are drawn to lock nonwhite voters out of power.

But the Republican justices’ new decision stands out because, while the Allen opinion is consistent with the Court’s broader trend toward redistricting anarchy, its actual legal arguments are inconsistent with things the same justices said as recently as one month ago. The decision is also inconsistent with previous orders that the Court’s Republican majority handed down in the Allen case itself.

If you want the full rundown of all of these inconsistencies, go read Justice Sonia Sotomayor’s dissent in this most recent decision. There are so many of them that it is hard to escape the conclusion that the Court’s Republicans aren’t being honest about their true motivations. The simplest explanation for Tuesday night’s decision is that the Court’s Republican majority is bending the rules because they want the Republican Party to hold a majority in the House.

The decision in Allen breaks a rule that the Supreme Court announced one month ago

At the end of April, the Court’s Republican majority handed down Louisiana v. Callais, which completed a project that at least one member of that majority began more than four decades ago.

In 1982, President Ronald Reagan signed legislation expanding the Voting Rights Act, the federal law barring race discrimination in elections. Among other things, the 1982 amendment established that many state election laws that have a negative impact on nonwhite voters are illegal, even if the plaintiff challenging that law cannot prove that the law was enacted with racist intent. 

When this bill was being debated in Congress, however, there was a conservative faction within the Reagan administration that opposed it, and which unsuccessfully urged Reagan to veto it. Future Chief Justice John Roberts was a member of this faction, and as a fairly junior lawyer wound up doing much of the granular work that is often assigned to young attorneys. Among other things, Roberts wrote about two dozen memos opposing the 1982 amendment, and he drafted speeches and talking points for senior lawyers who also opposed it.

Although Roberts’ faction failed in 1982, Roberts held onto his grudge against the Reagan amendments to the VRA, and his faction eventually took over the Republican Party. All six of the Court’s Republicans joined Callais, which repealed the 1982 amendment and imposed a new rule requiring voting rights plaintiffs challenging a gerrymandered map to show that state lawmakers acted with racist intent.

Under Callais, a plaintiff bringing such a challenge may only prevail “when the circumstances give rise to a strong inference that intentional discrimination occurred.”

In the Allen case, however, a three-judge panel that included two Trump-appointed judges determined that “we cannot understand [Alabama’s new congressional maps] as anything other than an intentional effort to dilute Black Alabamians’ voting strength.” The panel reached that conclusion in an astonishingly thorough 571-page opinion handed down in 2023. After Callais, the Supreme Court ordered that panel to reconsider its ruling, and the panel did not change its mind — concluding again that Alabama engaged in intentional race discrimination.

Among other things, the panel pointed out that the 2023 Alabama law drawing the new maps achieved its racial goals by holding together a majority-white area of the state known as the Gulf Coast, while dividing a Black-majority region known as the Black Belt. Incredibly, the 2023 state law said that the Gulf Coast “shall be kept together to the fullest extent possible,” in part because Alabama lawmakers wanted to preserve its “distinct culture stemming from its French and Spanish colonial heritage.”

The state legislature, in other words, wrote into the statute itself that it wished to preserve a European American region of the state’s ability to elect its preferred representative, while the same law also broke up an African American region of Alabama. If that doesn’t give rise to a strong inference that intentional discrimination occurred, nothing does.

The Republican justices’ latest opinion in Allen, meanwhile, is only four pages long. And it spends only a single sentence responding to the hundreds of pages of evidence the lower court compiled, which shows that Alabama engaged in intentional race discrimination. According to the Republican justices, the lower court “did not heed the presumption of legislative good faith” that judges are supposed to apply to state lawmakers who are accused of race discrimination.

So, to summarize, just over one month after the Court’s Republicans declared in Callais that racial gerrymandering plaintiffs could still prevail if they can show that a state’s legislature engaged in intentional race discrimination, those same Republicans appear to have abandoned that rule. And the upshot is that the Republican Party gets an extra seat in the US House.

The GOP justices’ Allen opinion isn’t even consistent with their previous decisions in the same case

As Sotomayor explains in her dissent, there are several other examples of the Republican justices taking one position in previous decisions, then abandoning them in order to hand a victory to Alabama Republicans.

The most galling is that, in Callais, the Republican justices explicitly stated that “we have not overruled Allen,” a reference to the Supreme Court’s 2023 ruling in this very same case, where the Court struck down Alabama’s maps and ordered it to draw new ones. It’s now clear that the Republican justices were lying when they said that in Callais. The Court’s 2023 ruling in Allen held that Alabama must draw maps with at least two Black congressional districts, while its 2026 ruling in Allen holds that Alabama does not need to do so after Callais. So Callais overruled the 2023 opinion in Allen.

Sotomayor also spends much of her opinion warning that the Court’s latest Allen decision is likely to cause “chaos” in Alabama’s upcoming congressional election, because the primaries in that election are supposed to take place on August 11, leaving the state with very little time to complete the time-consuming task of going through each voter’s record to make sure they are assigned to the correct district.

According to Sotomayor, after a federal district court first struck down an earlier version of Alabama’s maps in 2022, the state told the Supreme Court that it needed to block that decision because the district court handed it down four months before a primary election, and “four months was not enough time to change congressional maps.” Sotomayor’s Republican colleagues appear to have agreed with that claim. Indeed, when the Court agreed to block the 2022 decision, two justices warned that the lower court’s order “would require heroic efforts by . . . state and local authorities in the next few weeks—and even heroic efforts likely would not be enough to avoid chaos and confusion.” 

So, when a lower court handed down a decision that would have benefited the Democratic Party by requiring Alabama to draw a map that would elect an additional Black Democrat, the Republican justices appear to have concluded that four months wasn’t enough time for Alabama to comply with that decision. Now, however, those same justices have decided that the state can pull off the same “heroic efforts” in just two months.

In fairness, the Court’s Republicans have occasionally ruled against their political party when that party presents particularly weak arguments. In 2020, for example, the Supreme Court famously rejected President Donald Trump’s attempt to overturn his loss to former President Joe Biden. 

As I wrote at the time, handing a victory to Trump would have required herculean efforts by the justices, because Biden won by a wide enough margin that the Court would have needed to overturn the election results in three different states. That was too much even for this Supreme Court.

But this is still the same Supreme Court which held in 2024 that Trump is allowed to use the powers of the presidency to commit crimes. So the Republican justices are willing to do extraordinary favors for their political party and its leadership, even if they don’t do the GOP’s bidding in literally every case that comes before them.

It is safe to say, in other words, that the Republican justices are putting a thumb on the scales of the 2026 midterms. That’s not the same thing as putting a one-ton sack of concrete on those scales. But the most reasonable explanation for the GOP justices’ behavior is that they want to give an advantage to the Republican Party and are willing to contradict their own past decisions in order to do so.

Allen v. Milligan, an Alabama redistricting case that is now before the Supreme Court for the third time, is a face-palm, wrapped in a head-desk, wrapped in some of the most incompetent legislative draftsmanship that has ever been presented to the justices. If Alabama Republicans have any sense, they will fire all of their lawyers.

About a month ago, the Supreme Court decided Louisiana v. Callais, gutting the federal Voting Rights Act’s safeguards against legislative maps that lock voters of color out of power in the process. Callais effectively repealed a 1982 amendment to the VRA, which prohibited many state laws that have a negative impact of nonwhite voters, even if those laws were not drawn with racist intent.

After Callais, a plaintiff challenging a state’s legislative maps on racial grounds may only prevail “when the circumstances give rise to a strong inference that intentional discrimination occurred.”

As a practical matter, this is a very difficult bar for voting rights plaintiffs to overcome. Lawyers and judges are not mind readers. And state lawmakers normally aren’t foolish enough to state openly that they drew a particular map in a particular way because they wanted to maximize white power and minimize the voting power of nonwhite voters.

And yet, Alabama’s Republican-controlled legislature managed to enact congressional redistricting legislation that openly praises the European American character of much of the state.

Allen turns on congressional maps that the state enacted in a 2023 law, but which have never actually been used in an election. Much of the case turns on the law’s disparate treatment of two regions in the state: the Gulf Coast region of Alabama, and the state’s Black Belt.

While the Black Belt is actually named after the dark-colored soil in that region, it has a high African American population because many enslaved people were brought to the Black Belt prior to the Civil War. The Gulf Coast region, meanwhile, is predominantly white. As a lower court decision that struck down the 2023 maps explains, those maps keep “the Gulf Coast whole,” while simultaneously splitting the Black Belt in a way that shunts many of its Black voters into a majority-white district.

The mere fact that Alabama cracked up the Black Belt while keeping the Gulf Coast intact does not endanger its maps, at least under Callais. The decision is very favorable to gerrymandering, and permits states to draw maps that diminish Black representation so long as the state claims that it is doing so to dilute the votes of Democrats.

But here’s the rub: The 2023 law doesn’t just preserve the white-majority Gulf Coast region intact; it also praises the “shared culture” of that region which stems “from its French and Spanish colonial heritage.” France and Spain, of course, are European countries made up predominantly of white people.

The state legislature, in other words, didn’t just give the Gulf Coast more favorable treatment than it did the Black Belt. It explicitly referenced the Gulf Coast’s shared European culture when it did so. That sure gives rise to a strong inference that intentional discrimination occurred!

Will that be enough to persuade this Supreme Court to rule against Alabama’s maps? Who knows? The Court’s most recent gerrymandering decisions appear designed to permit states to draw whatever maps they want, without any federal judicial oversight whatsoever. And a decision in favor of Alabama’s 2023 maps would also benefit the Republican Party.

Six of the Supreme Court’s nine seats are held by Republicans.

But, even after Callais, one of the few things that states should not be allowed to do is draw maps for the explicit purpose of favoring European Americans, while simultaneously disfavoring African Americans. And yet Alabama’s maps may not be able to clear even this very low bar.

On Monday, the Supreme Court decided not to thrust another dagger into the nearly lifeless corpse of the Voting Rights Act.

The Voting Rights Act of 1965 is arguably the most successful civil rights law in American history. Before the Roberts Court began to dismantle it, the VRA included a web of provisions intended to prevent states from denying anyone the right to vote because of their race. And the law started to dismantle Jim Crow voter suppression almost immediately after it took effect. Just two years after it became law, Black voter registration rates in Mississippi grew from 6.7 percent to 60 percent.

But the Supreme Court’s Republican majority loathes this law. As Justice Elena Kagan wrote in a 2021 dissenting opinion, her Court “has treated no statute worse” than the Voting Rights Act. As a young White House lawyer, future Chief Justice John Roberts unsuccessfully pushed then-President Ronald Reagan to veto a 1982 amendment to the VRA that the Court recently repealed in Louisiana v. Callais (2026).

After Callais, it is unclear whether the VRA has any remaining force whatsoever.

The two orders the Court handed down on Monday, meanwhile, concerned an alternative proposal to strangle the Voting Rights Act that Justice Neil Gorsuch floated in a concurring opinion in Brnovich v. DNC (2021), the same case where Kagan said that her Court has treated no law worse than the VRA. But the Monday orders neither endorsed Gorsuch’s theory nor rejected it — it merely asked two lower courts that previously considered this theory to consider it again.

The orders came in two cases, Turtle Mountain Band v. Howe, where the lower court backed Gorsuch’s attempt to further neutralize the VRA, and Board of Election Commissioners v. NAACP, where the lower court rejected Gorsuch’s attack on the law.

It’s unclear why this Supreme Court, which has been so relentlessly hostile toward the VRA, decided to punt this latest fight until some future date. It’s also unclear whether this fight still matters, as the Court has already bled the Voting Rights Act so deeply that the law may no longer actually do anything.

Still, as it appears there is still one more big legal dispute looming over this most diminished of federal laws, let’s take stock of just how much of the Voting Rights Act remains.

Does the Voting Rights Act still do anything at all?

Before the Republican justices started to dismantle the VRA in Shelby County v. Holder (2013), the law used several mechanisms to ensure that voters of color were not locked out of power. As originally enacted in 1965, the law required states with a history of racist election practices to “preclear” any new election laws with officials in Washington, DC, to ensure that those laws did not target voters because of their race. This provision was effectively repealed by Shelby County.

Meanwhile, the 1982 amendment required some states to draw a minimal number of majority-Black or majority-Latino legislative districts. And it forbade a state election law that “results in a denial or abridgement of the right of any citizen of the United States to vote on account of race or color,” even if the plaintiffs challenging that law could not prove that it was enacted with racist intent. 

This 1982 amendment was effectively repealed by Callais.

That said, Callais does say that a Voting Rights Act plaintiff may still prevail in very limited circumstances. The law, Justice Samuel Alito claimed in his Callais opinion, “imposes liability only when the circumstances give rise to a strong inference that intentional discrimination occurred.” So a voting rights plaintiff may still win their case if they can show that a state law was motivated by racist animus.

Realistically, however, this means that the post-Callais Voting Rights Act does no independent work whatsoever. As Alito acknowledges in Callais, the Constitution already contains a voting rights provision — the 15th Amendment — that, in Alito’s words, “bars only state action ‘motivated by a discriminatory purpose.’” So state laws that intentionally discriminate on the basis of race were already illegal before the VRA became law.

Indeed, even prior to the VRA’s enactment in 1965, the Supreme Court did occasionally strike down state election laws that intentionally discriminated on the basis of race, holding that they violated the 15th Amendment. The Voting Rights Act was necessary not because Jim Crow voting laws were legal, but because Jim Crow states were creative. Whenever a court did strike down a state law intended to keep Black people from voting, Southern states would typically respond by enacting a new law that achieved the same goal in a different way — thus forcing civil rights advocates to bring another lawsuit that could take years before another judge issued a new injunction against the new law.

The whole point of preclearance was to prevent racist laws from ever taking effect, and thus prevent Jim Crow lawmakers from outrunning slow-moving courts that were struggling to enforce the 15th Amendment.

Meanwhile, while Jim Crow lawmakers were often quite explicit about their white supremacist goals, by the 1980s most lawmakers who still harbored racist beliefs were shrewd enough not to say such things out loud. The 1982 amendment, which targets state election laws that have negative racial impacts — even if the plaintiffs cannot prove racist intent — was designed to ensure that the VRA would still function even in a world where plaintiffs could not produce direct evidence that a state law was enacted for racist reasons.

The combined effect of Shelby County, Brnovich, Callais, and similar cases, in other words, is to return (or, perhaps, retvrn) US voting rights law to 1964. While some shell of the Voting Rights Act remains on the books, it does not appear to do any independent work that isn’t already done by the 15th Amendment.

And that brings us back to Gorsuch’s proposal in Brnovich, which, if taken to the extreme, could potentially leave voting rights plaintiffs even worse off than they were prior to the Voting Rights Act’s enactment.

Gorsuch wants to make it impossible to sue for violations of the Voting Rights Act

Gorsuch’s concurring opinion in Brnovich suggests that the Voting Rights Act does not include an “implied cause of action.” This means that, if Gorsuch’s view were to prevail in the Supreme Court, no private plaintiff would ever be able to bring a lawsuit alleging a violation of the VRA ever again (although the federal government would still be able to do so, assuming it was controlled by a president who supports voting rights). 

Some federal laws state explicitly that certain individuals or institutions may sue in order to enforce them. When a federal law does not contain such explicit language, however, the Supreme Court has developed a set of rules governing when private parties may sue to enforce the law.

Until last year, these cases were governed by the rule the Court most recently laid out in Health and Hospital Corporation v. Talevski (2023), which held that a federal law may be enforced by private lawsuits if it is “‘phrased in terms of the persons benefited’ and contains ‘rights-creating,’ individual-centric language with an ‘unmistakable focus on the benefited class.’”

Thus, for example, if a federal law says that “no state may prevent an athletic person from riding a bicycle,” this law would be enforceable by private lawsuits because the law’s text focuses on the people who benefit from it (athletic people). A similar statute saying that “states shall not impede access to bicycles” would be unenforceable by private lawsuits, because that hypothetical law lacks the “individual-centric language” demanded by Talevski.

Two years after Talevski, however, the Court appeared to abandon its framework. In Medina v. Planned Parenthood (2025), the Court considered whether a statute that permits “any individual eligible for medical assistance” under Medicaid to choose their own health provider could sue after a state denied Medicaid benefits to patients who choose Planned Parenthood as their health provider. 

Although this statute clearly permits Medicaid patients to file lawsuits, at least under the Talevski rule, the Court’s Republicans issued a confusing majority opinion disallowing the suit. It is unclear whether Medina was intended to overrule Talevski, or if it was merely a one-off decision that the Republican justices reached because they did not want to rule in favor of an abortion provider.

That said, Medina does include several pages suggesting that federal laws that use the word “right” in their text may be enforced through private lawsuits.

So, with these two competing frameworks in mind, consider the language of the Voting Rights Act:

No voting qualification or prerequisite to voting or standard, practice, or procedure shall be imposed or applied by any State or political subdivision in a manner which results in a denial or abridgement of the right of any citizen of the United States to vote on account of race or color…

Under Talevski, the VRA may be enforced via private lawsuits because the statute is phrased in terms of the people who benefit from it (“any citizen of the United States”). Similarly, while the Medina decision is difficult to parse, it does suggest that statutes that use the word “right” may be enforced by private lawsuits. And that word is front and center in the Voting Rights Act.

Gorsuch’s Brnovich opinion is only a paragraph long, so it does not explain how Gorsuch reached the odd conclusion that the VRA does not authorize private lawsuits. Gorsuch doesn’t even specify whether he thinks that Talevski’s framework, Medina’s framework, or some secret third thing should govern VRA lawsuits.

But he did write that opinion, and it was joined by Justice Clarence Thomas. So it appears that there are at least two votes on the Supreme Court to cut off private lawsuits under the VRA altogether.

One uncertain question is whether these two justices would still permit private plaintiffs to sue under the 15th Amendment. Like the Voting Rights Act, the 15th Amendment’s language (“The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude”) should permit suits under either Talevski or Medina. But, if Thomas and Gorsuch are willing to shut down VRA suits in the absence of any law or precedent justifying such an outcome, why wouldn’t they also shut down 15th Amendment suits?

We don’t know. But on Monday, the Court decided to delay resolving this question — the question of whether any private plaintiffs may sue under the VRA — until some future date. So we will have to wait until then to find out if Thomas, Gorsuch, or any other justice wants to make federal law even less favorable to voting rights plaintiffs than it was under Jim Crow.

President Donald Trump’s Department of Justice released an opinion on Tuesday that, in the likely event it is embraced by a Republican-controlled federal judiciary, would make it significantly harder for plaintiffs who face employment discrimination to prevail in court.

The opinion was released by the Office of Legal Counsel, an institution that interprets federal law and the Constitution for executive branch officials, and is signed by T. Elliot Gaiser, the head of that office. Gaiser is a former law clerk to Justice Samuel Alito, author of the Supreme Court’s recent decision in Louisiana v. Callais, which repealed a 1982 amendment to the federal Voting Rights Act and greenlit a new round of gerrymandering by white Southern Republican lawmakers.

Gaiser’s opinion argues that Alito’s attack on the Voting Rights Act in Callais applies with equal force to anti-discrimination law in employment. And, if you accept Alito’s opinion in Callais as legitimate, then Gaiser’s approach to employment discrimination is hardly a stretch. Indeed, it is the next logical move in the Republican Party’s broader campaign to weaken civil rights protections for racial minorities. 

Notably, one day after Gaiser released his opinion, Trump’s Department of Transportation announced that it was applying Callais to its regulations. So it appears that this administration wants to implement Alito’s views throughout the executive branch.

The 1982 law that Alito targeted in Callais provided that voting rights plaintiffs who challenged a state election law did not need to prove that state lawmakers acted with racist intent in order to prevail. Under that law, which was repealed by Callais, a state law that “results” in voters having their right to vote diminished due to their race may also be challenged.

For 40 years, the Supreme Court interpreted this “results” test to sometimes require states to draw a minimum number of legislative districts where Black or Latino voters can elect their candidates of choice. After Callais, white lawmakers are now free to draw maps that will only elect white Republicans, so long as they claim that the purpose of those maps is to lock Democrats out of power and not to target voters of color.

Gaiser’s opinion, meanwhile, concerns a 1991 federal law that sometimes permits an employment discrimination plaintiff to prevail if they can show that an employer engages in a “practice that causes a disparate impact on the basis of race, color, religion, sex, or national origin.” This framework, which is known as “disparate impact,” is similar to the one laid out in the pre-Callais Voting Rights Act, because it sometimes permits a civil rights plaintiff to prevail without proving that the employer acted with racist or otherwise impermissible intent.

Given these similarities, Gaiser’s core argument — that Callais’s framework also applies to disparate impact suits — is likely to prevail before a Republican Supreme Court. Quoting from Callais, Gaiser argues that federal employment discrimination law “imposes liability only when the circumstances give rise to a strong inference that intentional discrimination occurred.” 

There are two upshots to this conclusion. One is that it should be significantly harder for many employment discrimination plaintiffs to prevail. The other, which is potentially even more significant, is that elected officials should lose much of their power to remedy discrimination of all kinds, and the scope of civil rights law should be determined primarily by the Supreme Court.

Both the Voting Rights Act’s results test and employment discrimination’s disparate impact test, after all, were enacted into law by Congress. But the Republican Party’s consistent position on civil rights laws is that democratically enacted civil rights laws must bow to the whims of Republican justices.

Disparate impact, explained

In fairness, disparate impact lawsuits predate Congress’s decision to endorse them in 1991. The Supreme Court first embraced the idea that employment practices that have a disproportionate impact on racial minorities may be illegal in its unanimous decision in Griggs v. Duke Power (1971).

Griggs involved an employer who had historically employed both Black and white workers who did not have a high school diploma, but it restricted all Black workers to the lowest-paying jobs. Shortly after Congress banned employment discrimination in 1964, this employer instituted a new policy preventing people without a high school diploma from transferring out of the lowest paying jobs, but it grandfathered in white employees without a high school education who were already in higher paying roles.

The Court ruled against the employer. While the justices acknowledged that there are often valid reasons for an employer to require its employees to have a certain level of education, the fact that white workers without a high school diploma had historically performed well in some of this particular employer’s higher-paying roles suggested that Black workers without a high school education would also perform well in those roles. 

Griggs established that, when an education requirement or similar barrier has a disproportionate negative impact on workers of a particular race, the requirement must actually be “a reasonable measure of job performance.” 

Congress later codified this rule in the 1991 law, which forbids employment practices that have a disparate impact on certain groups of workers, unless the employer can show “that the challenged practice is job related for the position in question and consistent with business necessity.” 

Republican judges, however, have long been skeptical of these disparate impact suits. In Ricci v. DeStefano (2009), for example, five of the Court’s Republicans rejected a lawsuit challenging an exam that the city of New Haven, Connecticut, used to screen firefighters seeking a promotion, even though nearly all of the applicants who passed the test were white. In a separate concurring opinion, Justice Antonin Scalia suggested that the 1991 law endorsing these suits may be unconstitutional.

But that law, and a similar law that permits disparate impact suits in housing discrimination cases, are still technically good law today. During the Obama administration, the DOJ used disparate impact lawsuits against lenders accused of widespread housing discrimination. The mortgage lender Countrywide, for example, agreed to pay $335 million to settle a claim that it “charged higher fees and rates to more than 200,000 minority borrowers across the country than to white borrowers who posed the same credit risk.”

Disparate impact suits may also be key to preventing employers from using biased algorithms in hiring.

Suppose, for example, that an employer uses artificial intelligence to screen job applicants. The AI has a hidden bias that disproportionately screens out Black candidates, but the employer itself has no discriminatory intent. Can the employer be sued under a disparate impact theory? A California federal court is currently wrestling with this issue in a case called Mobley v. Workday.

Notably, the judge hearing the Mobley case rejected the plaintiffs’ claim that employers who use this AI engaged in intentional discrimination, but allowed the case to move forward on a disparate impact theory.

The Republican Party’s approach to civil rights law is fundamentally anti-democratic

The question of what protections racial minorities should enjoy in housing, employment, election law, and elsewhere is fraught. The United States is a much less racist place than it was in 1971, when Griggs was decided and the American South was still clawing its way out of Jim Crow, but the nation is far from a bastion of racial equality.

In 2024, according to US census data, the median white household earned $88,010 in annual income, while the median Black household earned just $56,020.

Ordinarily, when the United States faces a difficult policy question like what, if anything, should be done to close racial gaps, it leaves that question to elected officials. Congress decided, when it enacted the 1982 amendments to the Voting Rights Act, to prevent many states from locking Black and Latino voters out of power in Congress. And it decided, when it enacted the 1991 law codifying disparate impact lawsuits, to permit those lawsuits to move forward.

The fundamental premise of both the Callais decision and Gaiser’s Office of Legal Counsel opinion, however, is that these difficult policy questions should be removed from the democratic process and given to a Republican judiciary. And the Republican justices believe that America has largely solved its racism problem, and so laws like the amended Voting Rights Act or the ones enabling disparate impact suits are no longer necessary.

Setting aside whether that is the correct position, it is far from clear why six Republican lawyers in black robes have more insight into US civil rights policy than the people American voters elected to make these decisions.

About a year ago, the Supreme Court handed down a baffling decision in Medina v. Planned Parenthood (2025). In Medina, South Carolina committed an obvious violation of federal Medicaid law, but the Court’s Republican majority seemed to bend over backward to prevent the patients affected by this legal violation from suing to enforce their rights. Among other things, the Court’s opinion in Medina was at odds with a decision the justices handed down just two years earlier in Health and Hospital Corporation v. Talevski (2023).

As I wrote at the time, the best explanation for Medina was not legal; it was political. South Carolina broke federal law specifically because it illegally cut off funding to Planned Parenthood. The Republican justices appear to have bent the rules to ensure that an abortion provider would be defunded.

On Thursday, the Supreme Court handed down a new opinion in FS Credit Opportunities v. Saba Capital Master Fund, which only adds to the mystery about why Medina came down the way it did. The facts of FS Credit are quite different from the issues in Medina — FS Credit is a securities law case asking when investors may sue investment funds, while Medina concerned when patients may sue states for violating Medicaid law. But the legal issues in FS Credit and Medina are very similar. They both involve a legal doctrine known as “implied causes of action.”

Although Medina is the Court’s most recent case (prior to FS Credit) that deals with implied causes of action, the FS Credit decision does not cite Medina anywhere. Instead, it quotes heavily from decisions that the Court refused to follow in Medina. And it explicitly embraces a legal rule that the Court seemed to reject in Medina.

The rules governing implied causes of action are complicated enough to reduce even experienced lawyers to tears. But, if you bear with me, it will be difficult to avoid a simple conclusion: The Court appears to be manipulating these rules to achieve outcomes preferred by the Republican justices and the anti-abortion movement.

What is an implied cause of action?

Justice Amy Coney Barrett’s opinion in FS Credit begins with a simple declarative sentence: “Congress, not the Judiciary, decides who may enforce the law.” Not all federal laws may be enforced through lawsuits, and not all people who may want to sue under a particular federal law are allowed to do so. 

In some cases, a federal law explicitly states that it authorizes private lawsuits against violators of that law, or it states who is allowed to bring those suits. In other cases, a right to sue may be implied from statutory text that does not explicitly provide for such suits. These implicit rights to sue are known as “implied causes of action.”

Before Medina, the question of whether a particular federal law creates an implied cause of action was governed by the Court’s decision in Gonzaga University v. Doe (2002), which held that “for a statute to create private rights [to sue], its text must be phrased in terms of the persons benefited.”

Thus, for example, a hypothetical statute stating that “no sweaty person may be denied access to a shower” may be enforced through private lawsuits, because that law is phrased in terms of who benefits from it (sweaty people). A similar statute which provides that “states may not impede access to showers” would not be enforceable through private lawsuits, because that statute lacks the person-focused language demanded by Gonzaga.

Prior to the Medina decision in 2025, the Court repeatedly reaffirmed Gonzaga’s rule. It did so most recently in Talevski, which held that a federal law creates an implied cause of action when it is “‘phrased in terms of the persons benefited’ and contains ‘rights-creating,’ individual-centric language with an ‘unmistakable focus on the benefited class.’”

Under the Gonzaga framework, Medina should have been an open-and-shut case. The case involved a federal law that permits Medicaid patients to choose their health providers. South Carolina violated this law by refusing to allow Medicaid patients to choose Planned Parenthood as their health provider. Here is the relevant statutory text:

A State plan for medical assistance must … provide that … any individual eligible for medical assistance (including drugs) may obtain such assistance from any institution, agency, community pharmacy, or person, qualified to perform the service or services required (including an organization which provides such services, or arranges for their availability, on a prepayment basis), who undertakes to provide him such services.

This law contains the very kind of “individual-centric language” demanded by cases like Gonzaga and Talevski. It extends a right to “any individual,” providing that these individuals “may obtain” medical care from their chosen provider. It also concludes with a pronoun (“him”) that refers back to the individuals who benefit from the law.

And yet, in Medina, the six Republican justices rendered this statute unenforceable. And they did so in an opinion that didn’t even quote the relevant legal rule. The words “phrased in terms of the persons benefitted” appear nowhere in Justice Neil Gorsuch’s majority opinion.

Gorsuch’s Medina opinion is very difficult to parse, but it appears to create a new rule establishing that no statute may create an implied cause of action unless that statute includes the magic word “right” — as in: an individual’s rights. 

FS Credit relies on the same Gonzaga rule that the Court seemed to abandon in Medina

Barrett’s majority opinion in FS Credit, however, offers no hint that Medina even happened. Barrett does not at any point suggest that a statute must use any specific magic words in order to authorize private lawsuits. Instead, it relies on the pre-Medina framework established by cases like Gonzaga.

FS Credit holds that “to create a private right, a statute must use ‘rights-creating language’ aimed at protecting ‘a particular class of persons.’” It then quotes the key line from Gonzaga, which states that “statutes create private rights when they are ‘phrased in terms of the persons benefited.’” So Gonzaga is back, baby.

But, if the Court wanted to dispel the impression that Medina was a one-off decision that simply came up with an excuse to deny relief to abortion providers and their patients, Barrett’s FS Credit opinion needed to explain why the new rule that the Court seemed to apply in Medina does not apply in FS Credit. Instead, Barrett’s opinion does not include a single citation to Medina.

One possibility is that the two cases are different because Medina involved Medicaid, which is a federal spending program, while FS Credit involves a statute regulating private businesses. Gorsuch’s opinion in Medina says that “spending-power statutes like Medicaid are especially unlikely” to contain implied causes of action. So maybe the magic word rule that Gorsuch appeared to rely on in Medina only applies to Medicaid and other cases involving government spending programs.

But Talevski, the Supreme Court case decided two years before Medina, didn’t just reject the argument that there are different rules for federal spending programs; it outright mocked this argument. The losing party in Talevski, that decision explained, “urges us to reject decades of precedent” and to “rewrite” a key federal law to exempt federal spending programs from the Gonzaga rule. But Talevski “reject[s]” this “invitation to reimagine Congress’s handiwork (and our precedent interpreting it).”

Another possibility is that Medina is different from FS Credit because Medina involved a “Section 1983” lawsuit — a lawsuit brought under the federal law permitting individuals to bring civil rights claims against state governments and state officials — and FS Credit does not. Gorsuch’s Medina opinion describes the specific issue before his Court in that case as “whether the plaintiffs before us may maintain a § 1983 suit to enforce Medicaid’s any-qualified-provider provision “

But the problem with this distinction is that Gonzaga — the precedent behind the Court’s reasoning in FS Credit — was itself a Section 1983 case. So, for as long as Gonzaga has been the law, the Court has held that its rule applies to cases brought under Section 1983. Medina is the only exception.

Perhaps there is some other way to distinguish between Medina and FS Credit. But, again, the Court did not provide such an explanation in the FS Credit opinion. 

And, without such an explanation, it’s hard to escape the same conclusion that I reached a year ago, when Medina was first handed down. Medina was not decided in good faith. The actual holding of Medina is that abortion providers and their patients cannot enforce their rights, because the Republican justices say so. 

The central rule in any nation governed by the rule of law is that similar cases must be treated similarly, regardless of whether a group that individual judges dislike — or even view as morally repugnant — benefits from that rule. As Justice Antonin Scalia wrote in a 1989 essay, “when, in writing for the majority of the Court, I adopt a general rule. … I not only constrain lower courts, I constrain myself as well.” Because “if the next case should have such different facts that my political or policy preferences regarding the outcome are quite the opposite, I will be unable to indulge those preferences.”

Medina fails the Scalia test. There cannot be a special carve out for abortion providers or abortion patients that denies them the same right to sue enjoyed by any other litigant.

Remember DOGE, the Elon Musk-led “government efficiency” project that spread chaos during President Donald Trump’s first few months back in office, fired tens of thousands of federal employees, and then vanished almost as abruptly as it began?

If you didn’t lose your job in one of Musk’s federal employee purges, or you aren’t one of the remaining federal civil servants who has to figure out how to do your job without many of your colleagues around, DOGE is probably little more than a memory. But the legacy of this era of arbitrary firings is still being litigated in federal court, and Justice Amy Coney Barrett just handed down some very bad news for nearly every civilian who works for the federal government.

On the surface, the Supreme Court’s decision in Margolin v. National Association of Immigration Judges, which was handed down on Tuesday, is a bit removed from Elon’s brief stint as Trump’s human resources manager. The case concerns whether federal immigration judges have a First Amendment right to give public speeches about immigration law. And the full Supreme Court decided to get rid of the case using a procedural argument that has few implications for federal employees.

But Justice Clarence Thomas, in an opinion joined by Barrett, wrote a separate opinion that would allow Trump to strip all federal civil servants of employment protections that many federal workers have enjoyed since the Chester A. Arthur administration.

While Thomas often takes extreme positions, Barrett is a relative moderate who is close to the center of the GOP-controlled Supreme Court. So, if Barrett is willing to endorse Thomas’s one neat trick to abolish civil service protections, that’s a strong sign that a majority of the Court agrees with her position.

Republican judges have long backed a legal theory known as the “unitary executive,” which holds that the president must have the power to fire high-ranking government officials who lead federal agencies. But the unitary executive has not historically been understood to eliminate employment protections for civil servants and other relatively low-ranking federal employees. 

Justice Antonin Scalia’s dissent in Morrison v. Olson (1988), which is considered something akin to a holy text to proponents of the unitary executive, referred to the president’s power to “remove executive officers” — “officers” are relatively high-ranking government workers — but it did not say that the president must be able to fire every individual postal worker or Social Security clerk.

In Margolin, however, Thomas and Barrett suggest a way to collapse this distinction between agency leaders and ordinary civil servants. Trump can simply fire all of the government officials who adjudicate civil service disputes, and then civil servants will no longer have any enforceable rights.

Barrett, in other words, appears to believe that civil service protections only exist if the president wants them to exist. And if she says so, it’s likely the Court’s majority will, too.

Why civil service protections are essential to a modern government

If you watched the Netflix show Death by Lightning, which was about the brief presidency of James A. Garfield, or if you read the book the show was based on, you got a pretty good picture of what the president’s life was like before civil service reform.

As author Candice Millard wrote, when Garfield took office, the line of job seekers hoping to secure a federal job “began to form before he even sat down to breakfast.” By the time Garfield had finished his meal, “it snaked down the front walk, out the gate, and onto Pennsylvania Avenue.” As president, Garfield was expected to meet with each of these job-seekers and sort them into jobs — often based on whether they had a politically powerful patron.

This system was inefficient, as it forced the federal government to replace much of its workforce every time the White House changed hands. It diverted a simply enormous amount of the president’s attention into low-level hiring decisions. It fostered corruption, as often the only way to secure a federal job was to do favors for a senator, congressman, or some other powerful figure who could act as the job-seeker’s patron. And it made it very difficult for the government to hire highly specialized workers.

Why would someone go to the trouble of, say, getting an economics degree and becoming an expert on federal monetary policy if they knew that their job in the Treasury Department would evaporate the minute their party lost an election?

President Arthur signed the Pendleton Civil Service Reform Act in 1883, shortly after Garfield was assassinated by a disgruntled job-seeker. It was the first of several laws which ensure that the government did not have to replace every Republican postal worker or FBI agent with a Democrat if a Republican president lost an election. 

Modern civil service laws also prohibit the federal government’s political leadership from coercing civil servants into political activity. They provide protections for whistleblowers. And they generally ensure that the government will be staffed by competent professionals who provide continuity across presidential administrations.

Federal civil service laws are primarily enforced by an agency known as the Merit Systems Protection Board (MSPB). Civil servants who believe their rights as federal employees have been violated typically must file their case in the MSPB, which gets the first crack at adjudicating these sorts of disputes.

Early in his second presidency, however, Trump took several actions that appeared designed to shut down the MSPB. He fired one of the Board’s members, depriving the MSPB of the quorum it needs to operate. He also fired Special Counsel of the United States Hampton Dellinger, an official who investigates alleged violations of civil service laws and brings cases to the MSPB, and attempted to replace Dellinger with a far-right podcaster.

Since then, Trump has taken some actions to reinvigorate the MSPB. The Board now has two members, which is the minimum it needs to operate. The podcaster withdrew from consideration to replace Dellinger after Politico reported that the podcaster said he has a “Nazi streak in me from time to time.” And Trump later assigned Dellinger’s duties to US Trade Representative Jamieson Greer.

So, while there are good reasons to believe that the MSPB is significantly diminished thanks to Trump’s actions, the Board currently has the minimum amount of personnel it needs to operate. But that was not true for the first several months of the second Trump administration, when it only had one member and thus was unable to adjudicate civil service disputes.

Barrett would let Trump abolish civil service protections by firing the MSPB’s members

The most interesting issue in the Margolin case concerns what should have happened if Trump had never appointed a second MSPB member, and thus had left the Board inoperative.

A federal appeals court, the United States Court of Appeals for the Fourth Circuit, decided Margolin in June 2025, during the period when the MSPB was defunct. That court suggested that, if the MSPB is nonfunctional, then the federal judiciary must step in and hear civil service disputes that otherwise would be heard by the MSPB — because, otherwise, federal civil service laws would cease to function. 

On Tuesday, the full Supreme Court reversed the Fourth Circuit, although it did so on narrow grounds. The full Court’s opinion in Margolin states simply that the Fourth Circuit should not have opined on what happens when the MSPB is defunct, because the plaintiffs in Margolin did not raise this issue in their briefs. 

But Thomas’s concurring opinion, which was joined by Barrett, rejects the Fourth Circuit’s argument outright. He argues that federal law says that civil servants must bring employment disputes in the MSPB, and if there is no MSPB, that means that they are simply out of luck.

Thus, as a practical matter, Trump could gain the power to fire any federal worker simply by firing one of the two current members of the MSPB. If that happened, the MSPB would cease to function, and federal civil servants would be cut off from any legal remedies, even if they were illegally fired for being Democrats.

Despite the significant implications of Barrett’s decision to join Thomas’s opinion, it isn’t particularly surprising. Last July, in McMahon v. New York (2025), the Court permitted the Trump administration to fire about half of the Department of Education’s workforce. Though the Court’s three Democrats dissented in McMahon, the Republican justices in the majority did not explain their decision; it was decided on the Court’s shadow docket, and the justices often do not explain their reasoning in those cases.

Nevertheless, McMahon was an early sign that the Court’s Republican majority does not support civil service protections, or believe that those laws should be enforced. Barrett’s decision to join Thomas’s Margolin opinion also suggests that she holds that view.

It appears, in other words, that this Supreme Court wants to tear down a consensus that was reached in 1883 — that the federal government should have a professional civil service that cannot be removed simply because the Republican Party controls the White House. Barrett’s move suggests Trump has plenty of leeway to keep firing people, even if federal law is supposed to stop him from doing so.