Oh, SCOTUS...

Early in my first semester of law school, my constitutional law professor asked me this question: "Do you love the law?" At the time, I had no idea what he was talking about and thought the question ridiculous—what does it mean to "love the law?" It was only much later in my career, and especially when I began my work in government, that I understood the question and also knew the answer: a resounding and fervent "Yes, I love the law."

We often hear the expression that we're a nation of laws and not of men. But we rarely dig into that expression to understand why that must be so in a functioning democracy. Obviously, one goal is that everyone plays by the same rules and no one is above the law—though that concept is being sorely tested at the moment. But more fundamentally, the rule of law provides the framework that underpins our democracy. Democracy is messy and inefficient by design—majority rule is not neat or easy to implement. So, we need some structure and a foundation upon which the policies and goals of the majority can be built, as well as guardrails so minority rights aren't trampled in the process. The Constitution provides that basic foundation and sets the outer perimeters of the federal government's powers and then limits all governmental power when it comes to basic human rights like free speech, freedom of religion, voting rights, freedom from discrimination, etc.

The Supreme Court, in Marbury v. Madison, gave itself the power to determine which governmental actions run afoul of those Constitutional limits. But other than that, SCOTUS was really supposed to be a minor character in our democracy's story—it was meant to act in a restrained way, since it was an anti-majoritarian body of nine Justices largely unaccountable to the people. Along those lines, it created certain long-standing precedents and guardrails to prevent overreach by the courts, such as a presumption of legislative reasonableness and a reluctance to wade into constitutional issues if a case could be decided on other grounds. The Court recognized that stability and predictability in the application of the laws was critical to the judiciary's credibility and to the public's trust, whose participation and buy-in is necessary to a functional legal system.

In our nation's history, we've certainly had Supreme Courts that have abused their power. During the Lochner Era, for example, the Court was firmly aligned with wealthy industrialists and saw its role as helping them consolidate power. Any acts of Congress that attempted to regulate business practices, such as minimum wage laws or child labor laws, were struck down as beyond Congress' power under the commerce clause, or a violation of substantive due process. Ironically, in his confirmation hearings to become Chief Justice, John Roberts said: "You go to a case like the Lochner case, you can read that opinion today and it's quite clear that they're not interpreting the law, they're making the law." (Apparently, he saw that as a feature not a bug.)

And the Court has played a large and shameful role in perpetuating race discrimination in this country through the Dred Scott v. Sandford and Plessy v. Ferguson decisions. But given its decimation of basic foundations of the rule of law and civil rights guaranteed by the Constitution, particularly since Donald Trump has been in office, the Roberts court could, and very rightly should, be viewed as the most unethical, unscrupulous and arguably racist court in U.S. history. They are willing to do whatever it takes to get the political result they want.

Before getting to this latest atrocity, with more undoubtedly on the way as they continue to shred the foundations of our democracy this term, it's important to point out that the Roberts court has worked for decades to deliberately roll back the rights of certain Americans and to bestow special rights on others. To be clear, Roberts has been playing the long game—arguably, Trump is a product of these carefully calculated moves and is now merely a tool to continue the "progress" the Court has made.

Here at Electoral-Vote.com, we try to avoid hyperbole and, as much as possible, look objectively and dispassionately at court decisions, understanding that many times they are more nuanced than the headlines suggest. But this time, it's even worse than the headlines, which are hard to find in the first place and are decidedly understated. This is partly due to the fact that the Court dropped this nugget not only on the shadow docket, but also at 9:00 p.m. ET on a day when they knew the media would be otherwise occupied with primary election coverage. And it largely worked because the news was pretty well buried in most outlets, including major media like The New York Times. That's a pretty good indication that Roberts & Co. understand very well that this is all pretty sleazy.

But we will give the decision the attention it deserves, as painful as that is. To start, let's recap how we got here. The Court majority essentially teed up this outcome on May 11, when it meddled in Alabama's elections a week before their primary on May 19. The Court vacated the lower court's order enjoining Alabama from using an illegal map and directed the lower court to reconsider its decision in light of the Supreme Court's decision in Louisiana v. Callais. A 3-judge panel (consisting of two Trump appointees) had determined that the map, which Alabama drew in 2023 and which has never been used, was intentionally racially discriminatory in violation of the 14th Amendment.

The effect of the May 11 one-paragraph order on the shadow docket rewarded the state's deliberate violation of the panel's ruling in drawing the 2023 map and allowed (and even encouraged) Gov. Kay Ivey (R-AL) to postpone the Congressional primary to see if the state would be able to use the discriminatory map. Remember, this 2023 Alabama map has never been used before. A court-drawn map was used in 2024 and continued to be used in preparation for the 2026 elections. So, election officials had prepared ballots and registered voters under the court map and candidates had filed and campaigned to run in a May 19 primary in the same districts as before in 2024. One week before Election Day, the Court jumped in and threw all that into chaos. What was that again about issuing orders so close to an election? Oh right, if Republicans stand to benefit from the Court's meddling, then it's never too late to get involved.

And now we have the most recent example of the Court's hypocrisy and abuse of power. After vacating the lower court's ruling and instructing the panel to reconsider its ruling, the same panel (again, with two Trump appointees) dutifully reviewed all the evidence, which consisted of an 11-day trial with testimony from 51 witnesses and over 800 exhibits that culminated in a thoughtful and thorough 268-page opinion. After its review in light of Callais, the panel concluded that its decision was unchanged because it had found evidence of intentional discrimination under the 14th Amendment, and not just a violation of Section 2 of the VRA.

But on June 2, in yet another insulting and unsigned 4-page order, the Court's majority simply brushed all that aside, vacated the lower court's decision yet again, and admonished the panel for not following its instructions. Apparently, the panel should have known what its marching orders were and simply ignored all the evidence submitted over 11 days and its exhaustive analysis finding intentional discrimination and should have rubber-stamped Alabama's new map.

It's hard to pack so many logical inconsistencies and violations of its own rulings in a 4-page document, but somehow this Court managed to do it.

First, the Court completely ignores the fact that it upheld the lower court's ruling striking down Alabama's map just 3 years ago in this same case, Allen v. Mulligan, and agreed with its reasoning and the remedy the court ordered to draw a second majority-Black district. The 2023 map that Alabama drew in response deliberately defies that court order because, as with the illegal map, it, too, only contained one majority-Black district. But now, the Court says that this map is not a violation of the court's order but merely a "legal disagreement with the court's earlier remedial order" that the court is erroneously interpreting as "discriminatory animus." Setting aside the fact that intentionally violating a court order generally indicates some animus, the Court ignores the mountain of other evidence of "discriminatory animus" and implies the panel was simply acting in a fit of pique by striking down the 2023 map. So, apparently, one can ignore court orders if it's framed as a "legal disagreement" that can be sorted out through more litigation.

Second, in Callais, the Court did not overturn its decision in Allen v. Mulligan, which upheld the panel's decision striking down Alabama's original map. Instead, the Court has done a kind of bait-and-switch because, in the interim, it designed a test for intentional discrimination that can never be met. So, the Court has always intended that whatever map Alabama came up with in response to the lower court's order, even if it was intentionally based on fake criteria and made-up data to discriminate against non-whites, and resulted in the same type of districts that were struck down before, won't violate section 2 of the Voting Rights Act.

Third, it's even worse than that. The Court went even further than Callais, because that case didn't directly address violations of the 14th Amendment at all. As Associate Justice Sonia Sotomayor points out in her dissent, which was joined by Associate Justices Elena Kagan and Ketanji Jackson and is well worth reading (click on the link above), the remedial map Alabama devised was even worse than the original. The panel found that Alabama had not only not remedied the past violation, but had made it impossible to do so. As a result the panel concluded that "Alabama had violated the Fourteenth Amendment by entrenching racially discriminatory vote dilution and permanently enjoined Alabama's 2023 Redistricting Plan." Sotomayor points out that "Callais [did not] alter the analysis for intentional-discrimination claims under the Fourteenth Amendment." So, the standard of review should have been whether there was clear error by the district court, which is a fairly deferential standard. And there's more than enough evidence to support the finding of discriminatory intent, but the majority does not address that at all. Speaker of the Alabama House Nathaniel Ledbetter (R) understood the game, as he dismissed the court's order to draw a remedial map: "If you think about where we were, the Supreme Court ruling [in Allen] was five to four," he noted. "So there's just one judge that needed to see something different." Somehow, Alabama legislators knew that SCOTUS had their back.

Finally, in what can only be described as unmitigated gall, the Court admonishes the panel that "We have repeatedly cautioned that lower federal courts should not 'alter the election rules on the eve of an election.'" But it was the Supreme Court who altered the election rules on the eve of an election by creating this chaos in the first place! And they instructed the panel to reconsider its decision, which it did! Why did the Court put the panel through this ridiculous charade when the outcome was so obviously a foregone conclusion? If we were district court judges, we would stage a revolt. This is absolutely outrageous.

This Court has just gotten more brazen in its nakedly partisan rulings to keep Republicans in power. We'll see if it works in these midterms, but if both the House and Senate flip, the Democrats need to screw their courage to the sticking place and get serious about Supreme Court reform. The easiest path is simply to remove appellate jurisdiction for any constitutional questions from the Supreme Court and set up a separate court to hear only those issues. Enough is enough. (L)

Blanche Gets the Gig?

Yesterday, anonymous sources inside the White House told reporters that Donald Trump was planning to nominate Acting AG Todd Blanche to the permanent gig. A few hours later Trump delivered remarks at a private event, and confirmed that is the plan.

Trump could always change his mind, of course. But the President's indecisiveness is not the reason that we added a question mark to the headline for this item. No, the problem—which we've written about before, and which it does not take a "politics insider" to identify—is that Blanche has already shown himself to be a fawning lackey whose primary interest is in using the powers of the Department of Justice to advance Trump's political—and, more importantly, personal—goals. That can mean, and has meant, going after Trump's perceived enemies (e.g., E. Jean Carroll, James Comey). It can mean, and has meant, helping Trump himself commit lawless acts (e.g., the slush fund and sweetheart "Get out of Jail Free" card).

The 100 members of the United States Senate are aware of this. They are also aware that if Blanche is confirmed, and no longer has to worry about Senate oversight, he could turn up the corruption to 11 (as that is, after all, one more than 10). Some of them, the ones running for reelection in 2026 (or maybe 2028) are also aware that they could end up on the hook with voters for whatever bad acts Blanche commits. We think it's fair to say that Trump deserves most of the blame for the misdeeds of "Health" and Human Services Secretary Robert Kennedy Jr. However, whose reputation is it that will be permanently ruined? Sen. Bill Cassidy (R-LA), who knew better and voted for Kennedy anyhow.

These things being the case, we are unpersuaded that Blanche can secure Senate confirmation. If the four Reagan Republicans who will be out of a job in January—Cassidy, John Cornyn (TX), Mitch McConnell (KY), Thom Tillis (NC)—vote against confirmation, then that could be enough to kill the nomination, depending on what Sen. John Fetterman (D-PA) does. And that's before the talk about Lisa Murkowski (R-AK), who may be the one actual moderate Republican left in the Senate, Susan Collins (R-ME), who is facing a tough reelection battle, or Rand Paul (R-KY) who is hopping mad about the slush fund. Note also that Tillis and Cornyn are both members of the Senate Judiciary Committee (and Fetterman is not), so their two votes alone would be enough to block the nomination from even reaching the floor of the Senate. Anyhow, watch to see if today, or sometime over the next few days, Senate Majority Leader John Thune (R-SD) says something to reporters along the lines of "Well, I just don't know if this nomination can get over the line."

And speaking of the slush fund, Trump spoke to reporters yesterday, and was asked about it. In response, he said the quiet part out loud: "I'd have to ask the lawyers. I don't know. The weaponization fund, as far as I'm concerned, was a beautiful thing. I love it. I think it's so important."

The correct thing to do was to give the Full Sherman, and to insist that the fund is dead, dead, dead, dead, dead. We can't imagine why he wouldn't give the Full Sherman, since he's an inveterate liar who always reverses previous positions anyhow, and since the part he cares about isn't really the money, it's the "Get out of Jail Free" card. In any event, the 100 senators, and in particular the 53 Republicans, are all going to pick up on the subtext here: "As soon as the White House has what it wants from the Senate, corruption season is open again." This is not going to help with the Blanche nomination, and it's not going to help with the reconciliation bill, either. Note, incidentally, that the Senate has only about 30 workdays left before the midterms, so the strategy of "run out the clock, rather than defy Trump openly" is on the table. (Z)

House Slaps Trump's Wrist

Yesterday, the House finally managed to pass a resolution condemning the Iran War, and directing Donald Trump to bring the conflict to a resolution. The vote was 215-208, with all Democrats joining four Republicans in voting for it. The four Republicans were Tom Barrett (MI), Warren Davidson (OH), Brian Fitzpatrick (PA) and Thomas Massie (KY). Barrett and Fitzpatrick represent districts that are EVEN and D+1, respectively, Massie has already lost his primary and Davidson, while he represents a ruby-red R+12 district, is a former Army Ranger who does not like it when American troops are deployed casually and carelessly.

Either this measure, or a similar measure, is going to be taken up in the Senate, and will probably also pass there. However, none of this will carry the force of law unless the resolution is signed into law by Trump, which is obviously not going to happen. So, if you think it's important that a few Republicans are defying Trump these days, on some things, then that's really the main story here.

That said, there has been some movement on the war front. Earlier this week, it was reported that Trump had a screaming match on the phone with Israeli PM Benjamin Netanyahu. Trump's anger was a product of the ongoing conflict in Lebanon, between Israel and Hezbollah. The President reportedly told Netanyahu that he (Trump) has single-handedly kept the PM out of prison, and that he (Trump) is sick of the PM's lack of gratitude, and that everyone hates Israel these days and that Netanyahu is "fu**ing crazy." Presumably as a result of this phone call, Israel and Lebanon announced a ceasefire yesterday.

This may seem like progress toward peace, and it certainly could be. However, we must point out the many reasons for caution. The ceasefire is predicated on certain steps being taken by Hezbollah; Hezbollah is not known for doing what they've been told to do by the Lebanese government. Further, the ceasefires in this war seem to be curiously thin on, you know, actual cessations of fire. Also, even if the Israel-Lebanon peace is for real, that only removes one of several obstacles to peace. Most obviously, Trump still wants a 20-year moratorium on Iranian nukes, a commitment from the entire Middle East to join the Abraham Accords and, more broadly, a "better deal" than the one Barack Obama hammered out. So, don't make your Tehran travel plans quite yet. (Z)

Trump to Attend NBA Finals Game

This is not a major news story, and yet it's such a microcosm for this administration, we though we should mention it. On Monday, the NBA Finals will return to Madison Square Garden for the first time in nearly 30 years. And yesterday, Trump announced that he will be in attendance.

Trump will be the first sitting president to attend an NBA Finals game, and the first president to attend an NBA game of any sort since Barack Obama attended a regular-season Bulls game back in October of 2015. There is a reason presidents have not attended NBA Finals games, even those presidents who were huge basketball fans (as Obama was), and that is because it's a jerk move.

Dealing with presidential-level security at a football stadium, while a pain in the rear, is at least reasonably manageable because of the size of the venue. It's much harder in a basketball arena, which is considerably smaller. And it's an extra jerk-ish move here, because of how important this game is to New Yorkers. The get-in price for a single ticket, on StubHub, is about $4,500. The courtside seats, which are obviously where Trump will be sitting, and his security detail will be standing, are selling for $200,000 each. It's just not cool to take away from an experience that most of these people have been waiting for all their lives.

At the moment, Trump is cosplaying as a Knicks fan, something he's often done to promote his business prospects or his political prospects. But anytime someone asks Trump about the team and its history, he knows nothing. We doubt he could name two members of the Knicks' current starting lineup. And when the team is doing poorly, he's nowhwere to be found. If he was a lifelong, hardcore fan, then maybe Trump's attendance would be tolerable, if not optimal. But this is just sportswashing, meant to distract from the Iran War, the Epstein Files, the slush fund, and the myriad other political crises he's created for himself. (Z)

Democratic Presidential Candidate of the Week: The Return

We are ready to re-launch our weekly series of items on potential 2028 Democratic presidential candidates. As readers will recall, one element of that series is reader comments on each candidate.

We're doing 25 ranked candidates (and then a few bonus candidates), and the person who finished 25th in the vote we held last week is Sen. Tammy Duckworth (D-IL). If you have any comments on her as a presidential candidate, good or bad, please send them to us at comments@electoral-vote.com, preferably with subject line "Tammy Duckworth." (Z)

In Old California

In yesterday's election wrap-up, we wrote that we would do a follow-up on the results, particularly in California, once they are finalized.

When we wrote that, 51% of the votes in the gubernatorial race had been reported. As we write this, roughly 24 hours later, that number has climbed to... 55.8%. To give another example, when we wrote that, 53% of the votes in the L.A. mayoral race had been reported. As we write this, roughly 24 hours later, that number has climbed to... 62%.

The reason, of course, is that the people who run California are a bunch of mamby-pamby pinkos operating under the crazy understanding that every eligible voter should have every opportunity to vote. That means that everyone who is registered to vote automatically gets a vote-by-mail ballot. Further, any ballots postmarked by Election Day must, by state law, be counted if they are received within 7 days of the election.

There are a little over 23 million voters in California, and that's... a lot. And in most of the races, the contest for second place, and thus the right to advance to the general, is just too close to call. To be more specific, in many races, including the two names in the above paragraph, there is a Republican in second place and a Democrat 3-5 points behind them. Normally speaking, that would be a tough gap to overcome. But since mail-in ballots skew Democratic, and since the uncounted ballots are all mail-in, it's definitely within the realm of possibility here.

Nobody is entirely sure when the process will complete; you can find sources that say "a few days" and sources that say "up to 2 weeks." It would be helpful to know if the state will process ballots over the weekend, but there is nothing online that clarifies whether that is the case, and we were unable to get an answer from the office of California Secretary of State Shirley Weber. Our guess is that the final results will be available will come mid-week, very possibly on the same day we run down next week's elections in Maine, Nevada, North Dakota and South Carolina.

For now, however, we will direct our attention to a think piece that is blindingly obvious, and that we've already seen variants of in many places (e.g., here, here, and here). The thesis of this blindingly obvious think piece is: "Spencer Pratt is an amateur and a dope, and yet he has built a movement. Democrats should be paying attention."

As readers can probably guess, we hate this entire, lazy argument. Pratt's main (and close to only) campaign plank is: "We have to do something about these homeless people." It takes ZERO insight to figure out that is a big issue for Californians in particular, and for Angelenos in particular. It is the local issue that EVERY politician, on both sides of the aisle, talks about. Go look at the issues page for Mayor Karen Bass (I, but really D), who is the current frontrunner. The very first issue she talks about is homelessness. Then go look at the issues page for Nithya Raman (I, but really D), who is in third place trying to move into second. The very first issue she talks about is homelessness, too.

It is true that Pratt is full of grand promises about solving the homelessness issue. But these grand promises are empty blather. In the past 5 years, California has spent a staggering $24 billion on homelessness, only to see the problem get worse. It is entirely possible that there are different ideas to be tried, and that those ideas could have a positive impact. Indeed, we have a couple of readers who have extensive expertise when it comes to those ideas. But Pratt knows none of those ideas, and he also knows nothing about how to implement policy in Los Angeles (which is extra difficult, because power is diffused across the mayor's office, the City Council and the Board of Supervisors).

In short, even if Pratt becomes mayor (not happening), he's not going to improve on the homelessness situation one iota. And if the lesson of his "career" is "Make big promises that cause the voters to feel heard, even if you have absolutely no idea how to deliver on those promises," then the Democrats don't need him to provide an object lesson. They can just watch a different reality TV star, the fellow in the Oval Office, who has turned meaningless promises into an art form.

Also, the notion that Pratt has started a "movement" is laughable. Take a look at the current vote percentages for the top four candidates in this year's mayoral race:

1. Karen Bass: 35%
2. Spencer Pratt: 29.9%
3. Nithya Raman: 22.8%
4. Adam Miller: 3.9%

Now, take a look at the vote percentages for the top four candidates after the first round of the 2022 L.A. mayoral race:

1. Karen Bass: 43.1%
2. Rick Caruso: 36%
3. Kevin de León: 7.8%
4. Gina Viola: 6.9%

Caruso was 2022's "candidate for people who don't want to vote Democratic." He was also the 2022 poke-the-establishment-in-the-eye candidate. And, as you can see, he did considerably better in the first round then than Pratt is doing now (before getting beaten by 10 points in the general). Nobody is talking about the "lessons of Rick Caruso" or about "Rick Caruso's movement," because those things did not, and do not, exist. The candidate in that slot always gets around a third of the vote in the primary and 40% or so in the general; the only thing that is different this year is that there was also a viable poke-the-establishment-in-the-eye candidate on the left, and she took some chunk of votes from the (current) top two.

So yeah, lazy, clickbait-y analysis that is a waste of everyone's time. As we said, we hate that stuff. (Z)

Never Forget: Boompsie

Today's account is from reader J.E. in Gilbertsville, PA:

"Never Forget." The true meaning of that phrase has been a slow-building burn for me, much like a firework. I will explain.

My grandfather died of a massive heart attack in June of 1983, the very week I turned 11 years old. 11 year olds take the world around them at face value, including their grandfathers. My grandfather George was a man who sat in the shadows. He drove the car when my grandmother, a very short and extremely chatty woman (my mother describes her as "4'11", half of it hair and the other half mouth") wanted to take me to the store. He was the man who sat on the sofa while my grandmother bustled about. He was practically a piece of furniture. He was the man who was the butt of so many jokes. Everyone spoke dismissively of him.

We knew he was "shell shocked," but none of us really questioned what that meant. Certainly not an 11 year old. Not his son, who was born after the war and had only known that version of his father. Possibly not even my grandmother. She was more the "ignore it and it will go away" type.

I never questioned this version of my grandfather, until one day I finally did. I forget what prompted it, but by that point I was in my 30s or 40s. Probably it was the phase where I became obsessed with our family tree and would spend hours researching on websites. I'm not sure. But whatever the prompt, one day I asked my father what branch of the service his father had been in during World War II. And the answer led us all down a path that changed our view forever.

It turns out my grandfather was in the 899th Tank Destroyer Battalion. He was born in 1917, so he was already 24 when Pearl Harbor happened. He enlisted in June of 1942. I'm not sure what my grandfather did as a military role, but apparently he spent the early parts of the war getting promoted and then demoted, repeatedly. He was a prankster apparently, and prone to highjinks.

But the war would change all that. His batallion started off in '43 in North Africa. From there they landed on Utah Beach in Normandy, attached to the 82nd Airborne Division, and supported the push to capture Cherbourg. Then engaged in intense combat in the Hürtgen Forest, his was among the first units deployed to halt the German advance during the opening days of the Battle of the Bulge. (The constant night bombings, intense artillery shellings, and nonstop, heavy direct fire from the Germans must have come as quite the culture shock.) Somehow, shortly thereafter, my grandfather found himself with a unit crossing the Ludendorff Bridge at Remagen Germany. This was one of the last remaining bridges left intact by the Germans. American forces captured the bridge on March 7, and began crossing as many forces and supplies across the bridge as quickly as possible, while under heavy fire from the Germans the entire time. The bridge collapsed on March 17th.

I don't know what day my grandfather crossed, and he rarely spoke about the war, but we do know that he made it across the bridge and into a railroad tunnel on the other side, but that is as far as his mind allowed him to go:

From there, he was hospitalized for shell shock. At the time, this was considered shameful. My grandfather was discharged in October 1945, a completely different man than he'd been before the war. (I've since been able to visit Remagen and I've stood where that bridge once stood. Not much remains.)

After discovering his military service, one day I found myself at a wedding of a distant friend. She rushed me over to meet her ancient grandparents, because they remembered my grandfather. (This was probably 30 years after he'd passed.) "Oh you're BOOMPSIE'S GRANDDAUGHTER!!" they gushed. "Who the heck is Boompsie?", I wondered. I never knew this man you describe, this man who was the life of the party, so full of puckish fun. I'll never know that man.

He's not the butt of anyone's jokes anymore, though. It's literally the least we can do for him.

In the below photo, my grandmother is the one standing. She has her hands on my grandfather's shoulders. I'm not sure, but I think this may have been taken during the "Boompsie" years:

Thanks, J.E.

We are, of course, still accepting submissions at comments@electoral-vote.com; please use subject line "Never Forget." (Z)

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