Sotomayor’s dissent: A president should not be a ‘king above the law’
By Lindsay Whitehurst – July 1, 2024
Supreme Court Justice Sonia Sotomayor attends a panel discussion, Feb. 23, 2024 in Washington. The Supreme Court allowed a president to become a “king above the law,” in the use of official power, Sotomayor said in a biting dissent Monday, July 1, that called the majority opinion on immunity for former President Donald Trump “utterly indefensible.” Joined by the court’s two other liberals, Sotomayor said the opinion would have disastrous consequences for the presidency and the nation’s democracy by creating a “law-free zone around the president.” (AP Photo/Mark Schiefelbein, File)
Members of the Supreme Court sit for a group portrait in Washington, Oct. 7, 2022. Bottom row, from left, Justice Sonia Sotomayor, Justice Clarence Thomas, Chief Justice John Roberts, Justice Samuel Alito and Justice Elena Kagan. Top row, from left, Justice Amy Coney Barrett, Justice Neil Gorsuch, Justice Brett Kavanaugh, and Justice Ketanji Brown Jackson. The Supreme Court justices will take the bench Monday, July 1, 2024, to release their last few opinions of the term, including their most closely watched case: whether former President Donald Trump has immunity from criminal prosecution. (AP Photo/J. Scott Applewhite)Read More
People protest outside the Supreme Court Monday, July 1, 2024, in Washington. (AP Photo/Mariam Zuhaib)
The Supreme Court building is seen on June 27, 2024, in Washington. Supreme Court justices will take the bench Monday, July 1, to release their last few opinions of the term, including their most closely watched case: whether former President Donald Trump has immunity from criminal prosecution. (AP Photo/Mark Schiefelbein, File)
The Supreme Court opinion in former President Donald Trump’s immunity case is photographed Monday, July 1, 2024. In a historic ruling the justices said for the first time former presidents can be shielded from prosecution for at least some of what they do in the Oval Office. (AP Photo/Jon Elswick)
Republican presidential candidate former President Donald Trump speaks at a campaign rally in Chesapeake, Va., Friday, June 28, 2024. (AP Photo/Steve Helber)
WASHINGTON (AP) — In an unsparing dissent, Justice Sonia Sotomayor said the Supreme Court allowed a president to become a “king above the law” in its ruling that limited the scope of criminal charges against former President Donald Trump for his role in the Jan. 6, 2021 riot at the U.S. Capitol and efforts to overturn the election.
She called the decision, which likely ended the prospect of a trial for Trump before the November election, “utterly indefensible.”
“The court effectively creates a law-free zone around the president, upsetting the status quo that has existed since the founding,” she wrote. She was joined by liberal justices Elena Kagan and Ketanji Brown Jackson, who wrote another dissent referring to the ruling’s consequences as a “five alarm fire.”
Sotomayor read her dissent aloud in the courtroom, with a weighty delivery that underscored her criticism of the majority. She strongly pronounced each word, pausing at certain moments and gritting her teeth at others.
“Ironic isn’t it? The man in charge of enforcing laws can now just break them,” Sotomayor said.
Chief Justice John Roberts accused the liberal justices of fearmongering in the 6-3 majority opinion. It found that presidents aren’t above the law but must be entitled to presumptive immunity to allow them to forcefully exercise the office’s far-reaching powers and avoid a vicious cycle of politically motivated prosecutions.
While the opinion allows for the possibility of prosecutions for private acts, Sotomayor said it “deprives these prosecutions of any teeth” by excluding any evidence that related to official acts where the president is immune.
“This majority’s project will have disastrous consequences for the presidency and for our democracy,” she said. She ended by saying, “With fear for our democracy, I dissent.”
Trump, for his part, has denied doing anything wrong and has said this prosecution and three others are politically motivated to try to keep him from returning to the White House.
The other justices looked on in silence and largely remained still as Sotomayor spoke, with Justice Samuel Alito shuffling through papers and appearing to study them.
Sotomayor pointed to historical evidence, from the founding fathers to Watergate, that presidents could potentially face prosecution. She took a jab at the conservative majority that has made the nation’s history a guiding principle on issues like guns and abortion. “Interesting, history matters, right?”
Then she looked at the courtroom audience and concluded, “Except here.”
The majority feared that the threat of potential prosecution could constrain a president or create a “cycle of factional strife,” that the founders intended to avoid.
Sotomayor, on the other handed, pointed out that presidents have access to extensive legal advice about their actions and that criminal cases typically face high bars in court to proceed.
“It is a far greater danger if the president feels empowered to violate federal criminal law, buoyed by the knowledge of future immunity,” she said. “I am deeply troubled by the idea … that our nation loses something valuable when the president is forced to operate within the confines of federal criminal law.”
Associated Press writer Stephen Groves contributed to this story.
Lindsay Whitehurst is a national criminal justice reporter for The Associated Press, based in Washington, D.C. She covers the Justice Department, public safety and legal issues.
Liberal justices say Trump immunity decision ‘will have disastrous consequences’ for the U.S.
The Supreme Court ruled that the former president has some immunity from prosecution in his federal election interference case, further delaying the trial.
Rebecca Shabad – July 1, 2024
Justice Sonia Sotomayor said the majority had invented an “unjustifiable” immunity that puts a president above the law. Jahi Chikwendiu / The Washington Post via Getty Images
WASHINGTON — The Supreme Court’s liberal bloc issued blistering dissents Monday in the Trump immunity ruling, arguing that it “reshapes the institution of the presidency” and “makes a mockery” of the constitutional principle that no man is above the law.
Justice Sonia Sotomayor, reading her dissent from the bench, said that “relying on little more than its own misguided wisdom … the Court gives former President Trump all the immunity he asked for and more.”
She added that “because our Constitution does not shield a former President from answering for criminal and treasonous acts, I dissent.”
The Supreme Court ruled 6-3 on ideological lines that former President Donald Trump has immunity for some of his conduct as president but not unofficial acts in the federal election interference case. The court did not determine what constitutes an “official” act in this case, leaving that to the lower court.
The decision adds another hurdle and further delay to special counsel Jack Smith’s prosecution of the former president. Trump was indicted last year on charges he conspired to “overturn the legitimate results of the 2020 presidential election.”
Sotomayor said that the majority opinion, written by Chief Justice John Roberts, invents “an atextual, ahistorical, and unjustifiable immunity that puts the President above the law.”
Their ruling, she went on, makes three moves that she said “completely insulate Presidents from criminal liability.” Sotomayor said the court creates absolute immunity for the president’s exercise of “core constitutional powers,” creates “expansive immunity for all ‘official acts,'” and “declares that evidence concerning acts for which the President is immune can play no role in any criminal prosecution against him.”
Sotomayor warned that the ruling “will have disastrous consequences for the Presidency and for our democracy” and that it sends the message: “Let the President violate the law, let him exploit the trappings of his office for personal gain, let him use his official power for evil ends.”
She added, “Even if these nightmare scenarios never play out, and I pray they never do, the damage has been done. The relationship between the President and the people he serves has shifted irrevocably. In every use of official power, the President is now a king above the law.”
In her own written dissent, Justice Ketanji Brown Jackson said that the majority’s ruling “breaks new and dangerous ground.”
“Departing from the traditional model of individual accountability, the majority has concocted something entirely different: a Presidential accountability model that creates immunity—an exemption from criminal law — applicable only to the most powerful official in our Government,” she wrote.
Jackson warned that under the majority’s “new Presidential accountability mode,” a hypothetical president “who admits to having ordered the assassinations of his political rivals or critics…or one who indisputably instigates an unsuccessful coup…has a fair shot at getting immunity.”
The chief justice dismissed the dissents, suggesting that his three liberal colleagues had misinterpreted the majority’s opinion and were engaging in “fear mongering.” Roberts argued that they “strike a tone of chilling doom that is wholly disproportionate to what the Court actually does today.” He wrote that “like everyone else, the President is subject to prosecution in his unofficial capacity.”
He also appeared to scoff at Sotomayor for what she included in her dissent, saying that her “most compelling piece of evidence consists of excerpted statements of Charles Pinckney from an 1800 Senate debate.” He continued, “But those statements reflect only the now-discredited argument that any immunity not expressly mentioned in the Constitution must not exist.”
Justice Amy Coney Barrett wrote in a concurring opinion that she agreed with some of the majority opinion but not all of it. Notably, she said she agreed with Sotomayor that Trump’s immune conduct should still be allowed to be used as evidence in his trial.
“The Constitution does not require blinding juries to the circumstances surrounding conduct for which Presidents can be held liable,” she said.
Soon after the court issued the ruling, Trump celebrated the decision on his Truth Social account, writing in all caps: “Big win for our Constitution and democracy. Proud to be an American!”
A Biden campaign adviser, on the other hand, said that the ruling doesn’t change what happened on Jan. 6, 2021.
“Donald Trump snapped after he lost the 2020 election and encouraged a mob to overthrow the results of a free and fair election,” the adviser said. “Trump is already running for president as a convicted felon for the very same reason he sat idly by while the mob violently attacked the Capitol: he thinks he’s above the law and is willing to do anything to gain and hold onto power for himself.”
A John Wayne flop has been linked to high cancer rates. A new documentary aims to tell the community’s story.
Zack Budryk – June 30, 2024
A John Wayne flop has been linked to high cancer rates. A new documentary aims to tell the community’s story.
The 1956 movie “The Conqueror” is infamous among cinephiles, both for its casting of John Wayne as the Mongolian warlord Genghis Khan and for a suspicious number of deaths that followed its filming downwind of a nuclear test site. Nearly 70 years later, the makers of the documentary “The Conqueror: Hollywood Fallout” hope to tell the story of the affected “downwinder” community in St. George, Utah, near where the film shot as their federal compensation for radiation exposure is on the line.
At the time “The Conqueror” filmed in the Utah desert just outside the town, St. George was 137 miles downwind from the Nevada Test Site, where the federal government conducted more than 900 nuclear tests.
The Atomic Energy Commission (AEC) for years insisted to locals there was no danger, and when ranchers’ sheep began mysteriously dying, the federal government blamed it on the ranchers’ negligence.
But after the movie was shot, observers noted the high rate of cancer among people involved with the filming: 91 of 220 crew members developed the illness, and 46 died. Director Dick Powell and stars Wayne, Susan Hayward and Agnes Moorehead all eventually died of cancer as well, while Pedro Armendáriz Sr., an accomplished Mexican actor and the only nonwhite member of the film’s main cast, died by suicide when his cancer became terminal.
Local Paiute Native Americans were used as extras for crowd and battle scenes, but no records were kept of cancer rates among them.
“The Conqueror: Hollywood Fallout” director Will Nunez said at a panel discussion Wednesday that he had the idea for the documentary in 2020 during COVID-19 lockdowns, and that at the time, he was only aware of the movie’s infamy and the alleged cancer connection.
“What started as a lark about this terrible movie became something else as I was researching about atomic testing and all that, and my goal was to see how I can try and do this in the most entertaining way possible so that a general audience can understand what had happened,” he said.
He noted that many of the most absurd features of the 1956 movie — such as flowery, pseudo-Shakespearean dialogue written with Marlon Brando in mind that sounds extra ridiculous in the mouth of the Duke — added some levity to what could otherwise be a straightforwardly depressing story.
The movie notes that eccentric billionaire Howard Hughes, who produced “The Conqueror,” may have exacerbated radiation exposure during filming by having 60 tons of the irradiated desert sands delivered to the RKO Pictures soundstage in Hollywood to film interior scenes.
Epidemiologists have warned of the difficulty of definitively identifying a single cause for one cancer. Wayne himself was skeptical of a connection between the filming and the disease striking the cast and crew, noting late in life that he, Powell and Armendáriz were heavy smokers.
But Hayward and Powell both died in their 50s — a notably young age to develop cancer — and, as the documentary makes clear, the residents of St. George who developed cancer during the same period included young children.
Hughes would later say he felt “guilty as hell” about the production of the movie, and as he became increasingly reclusive, he bought every print of it and watched it on a loop in his hotel suite.
Ultimately, questions surrounding Wayne’s death that first surfaced in People magazine led Utahns to begin investigating a potential connection to their medical histories. The declassification of internal AEC documents followed, and strenuous lobbying by downwinders won former Utah Sen. Orrin Hatch (R) to their cause, culminating in the 1990 passage of the Radiation Exposure Compensation Act (RECA), which recently expired.
The documentary incorporates a variety of perspectives on the movie and its legacy, from Wayne’s and Hayward’s sons to conservative talk radio host Michael Medved, who began his career as a film critic specializing in “so bad they’re good” movies. Its most emotional voices, however, are those of downwinders themselves, many of whom remember the movie production coming to town and continue their lobbying over the radiation to which it helped draw attention to this day.
In the film, Mary Dickson, a downwinder activist and thyroid cancer survivor, notes that the effects of the nuclear testing fallout were not considered an emergency until the Defense Department began to worry that they may have, as an internal document put it, “killed John Wayne.”
RECA was reauthorized in 2022, but its authorization formally expired earlier this year after lawmakers failed to agree on a further extension. A bipartisan bill sponsored by Sens. Josh Hawley (R-Mo.) and Ben Ray Luján (D-N.M.), which would reauthorize the law and expand it beyond the 20 counties covered, as well as to children of downwinders, passed the Senate with 69 votes in March. However, Speaker Mike Johnson (R-La.) has declined to bring it to the House floor thus far, citing concerns about cost and whether it has the votes to pass in the GOP-controlled chamber.
Nunez’s documentary comes weeks after the authorization for RECA officially expired. Almost exactly a year ago, sponsors of the expansion bill hoped to take advantage of the buzz surrounding “Oppenheimer,” Christopher Nolan’s biopic of the physicist who helped develop the atomic bomb. Nunez told The Hill he hopes his movie, while much smaller, can similarly help drive conversation about downwinders’ plight.
“What I’m hoping is, now that RECA’s expired and the downwinders want to expand it to beyond the 20 counties, that this movie will help spread the word,” Nunez said.
Ultimately, however, he credited the dedication of affected locals for both the original law and for any breakthrough on reauthorization.
Nunez compared the downwinder community to the locals in Love Canal, N.Y., who pushed for a federal cleanup after the neighborhood became the site of an environmental disaster in the 1970s.
“If you notice, it’s all the women that raise hell,” he said.
Kagan, liberal Supreme Court justices issue scathing dissent in Chevron ruling
Rachel Frazin – June 28, 2024
Supreme Court Justice Elena Kagan offered a scathing dissent Friday as her conservative colleagues transferred the power of federal agencies to the courts in a major decision overturning the Chevron deference.
In overruling that doctrine, Kagan argued that “the majority turns itself into the country’s administrative czar.”
Joined by fellow liberal Justices Sonia Sotomayor and Ketanji Brown Jackson, she wrote that the majority replaced a rule of “judicial humility” with one of “judicial hubris.”
“In one fell swoop, the majority today gives itself exclusive power over every open issue—no matter how expertise-driven or policy-laden—involving the meaning of regulatory law,” Kagan wrote.
She added that the decision puts the courts at the center of a wide variety of policy issues, ranging from climate change to artificial intelligence.
“The Court has substituted its own judgment on workplace health for that of the Occupational Safety and Health Administration; its own judgment on climate change for that of the Environmental Protection Agency; and its own judgment on student loans for that of the Department of Education,” Kagan wrote.
The 6-3 decision by the court upended a 40-year administrative law precedent in which federal agencies were given leeway to interpret ambiguous laws through rulemaking.
Now, judges will substitute their own best interpretation of the law, instead of deferring to the agencies — effectively making it easier to overturn regulations that govern wide-ranging aspects of American life.
“Chevron is overruled,” Chief Justice John Roberts wrote in his decision, which was joined by his five conservative colleagues.
Roberts argued that “courts must exercise their independent judgment in deciding whether an agency has acted within its statutory authority.”
Mr. Bruni is a contributing Opinion writer who was on the staff of The Times for more than 25 years.
I’m not sure I’d ever watched Donald Trump lie so incessantly, extravagantly and unabashedly, and that’s saying something. On Thursday night he lied about the attack on the Capitol on Jan. 6, 2021. He lied about the violence in Charlottesville, Va., in 2017. He lied about his relationship with the military, about his concern for the environment — about pretty much any and every subject that came up. He lied with a smile. He lied with a shrug. He lied with a sneer.
That should have been the main, maybe even the only, story of the debate, and it should have made him easy, pitiable prey for his opponent. But President Biden failed to take advantage of it. He seemed — there’s no getting around this — incapable of doing so. And that’s its own big story, one that will only grow over the hours and days ahead.
Biden, 81, came into his face-off with Trump knowing that many voters were concerned about his age and had doubts about his sharpness. His aides knew that, too. And he and they spent much of the past week devoted to preparation, preparation, preparation, pausing occasionally to assure nervous Democrats that Biden had this thing under control.
But from the moment the debate began, he seemed unsteady. Off. His expression was often frozen. His voice was often flat. He garbled words. He corrected himself midsentence, over and over again. He’d clearly memorized key talking points — key phrases — but he repeatedly used them without providing adequate context, swerved from one to another without any transition, halted sentences before they reached their destination, started sentences without giving them any bearings.
Ten minutes in, I had a knot in my stomach. Twenty minutes in, the knot was so tight, it hurt. “We finally beat Medicare,” he said early on, and I had no idea what he was talking about.
He got somewhat clearer as the night wore on. He found more animation. But the damage was done, and it may be significant. I shudder to type that, but there’s no sense in pretending. That’s perhaps what too many of his advisers have been doing up until now — ignoring or wishing away the obvious.
Then again, maybe Biden just had an uncharacteristically bad night. It’s possible. And even if this is now the diminished truth of him, it’s still preferable to the Big Lie of Trump, whose own sentences can be (and on Thursday frequently were) inscrutable, whose behavior is reliably unscrupulous and whose second administration would be stocked with corrupt, vengeful lackeys and would sully our democracy in ways from which we might never recover. As I’ve written before about the signs that Biden is past his peak, the presidency is more than the president: It’s the crew that the president assembles, the culture that the president creates. Biden at his least focused would establish a better crew and culture than Trump at his most.
But can Biden beat Trump? That question predated the debate and will be asked with even more urgency and panic in its aftermath. As will this one: Is it really too late for another Democrat to take Biden’s place? With stakes this high, mustn’t that be discussed one more time before the convention?
Again, I feel a bit sick saying that, because I believe that Biden is a decent man who, as president, has done a better than decent job. In both of those respects, he outpaces Trump by many miles, and if Republican politicians and voters had any decency of their own, they would have sidelined Trump long ago. (They had their chance. He was impeached twice, after all.)
But I’m not weighing in on Biden’s record. I’m evaluating his prospects. And I’m acknowledging that performances as shaky as the one he delivered on Thursday may hurt him badly with the small group of uncommitted voters who will decide what is almost guaranteed to be a very close election. Anyone and everyone who correctly understands the stakes of a Trump victory must grapple with that — and fast.
The best measure of Biden’s ineffectiveness on Thursday night was the dormant Vesuvius of Trump. He never even came close to erupting. Just as many people tuned in to the debate to see how much command Biden could muster and how much confidence he could project, many were curious about Trump’s degree of control. Would he rant, rave and remind voters of how dangerously erratic and fundamentally unpresidential he is?
He didn’t, at least not to the extent that he might have. Sure, he was pouty, petty and promiscuous with superlatives: Everything about him was the very best ever, while everything about Biden was the very worst. It was wholly unnuanced and utterly absurd. But he didn’t interrupt Biden. Didn’t shout. Didn’t scale the pinnacles of nastiness and mockery that he did in past debates.
And the reason was obvious in his bemused, pleased expression as Biden staggered through more than a few of his remarks. Trump realized that Biden was sabotaging himself. Trump reveled in that, at one point expressing puzzlement over some assertion that Biden had just made. “I really don’t know what he said at the end of that sentence,” Trump scoffed. “I don’t think he knows what he said, either.”
The astounding part was that Trump didn’t revel even more. The heartbreaking part was how Biden bungled what were clearly intended to be devastating lines. He connected the death of his son Beau, who did duty in Iraq as a major in the Delaware National Guard, to derogatory comments that Trump reportedly made about Americans who’d served in the military.
“My son was not a loser, not a sucker,” Biden proclaimed, but words that should have been immeasurably poignant just sort of hung there. “You’re the sucker,” Biden added. “You’re the loser.” I cringed. That’s Trump talk, not Biden talk, and its delivery was disjointed, unsettling, odd.
For most of the mere 90 minutes of the debate, Biden seemed to be grasping for something he couldn’t reach. I fear that’s a metaphor. I’m sure it’s a warning.
Frank Bruni is a professor of journalism and public policy at Duke University, the author of the book “The Age of Grievance” and a contributing Opinion writer.
Team Trump Has a Ukraine Plan—and It’s a Total Nightmare
Ellie Quinlan Houghtaling – June 25, 2024
Donald Trump’s advisers have revealed their new plan for resolving the war between Russia and Ukraine—and it involves Ukraine’s immediate submission.
The plan effectively promises an increase in U.S. weapons aid to Ukraine so long as it shows up for peace talks with Russia, reported Reuters. And while that deal may not sound so bad, the writing between the lines isn’t so simple. Trump’s advisers envision that the peace talks—which Trump would facilitate should he win the November election—would also quietly include Ukraine ceding part of its territory that is currently occupied by Russian forces.
The concept was drawn up by retired Lieutenant General Keith Kellogg and Fred Fleitz, both former chiefs of staff on Trump’s National Security Council. Trump did not immediately sign on to “every word” of the plan, but Fleitz told Reuters that they were “pleased to get the feedback we did.”
The Kremlin told Reuters that Russian President Vladimir Putin is open to peace talks, but that any proposal by a possible future Trump administration would have to reflect the “reality on the ground.”
When pressed on the details of the plan, Fleitz explained that Ukraine would not formally need to relinquish its land to Russian forces. He did concede, however, that Ukraine was unlikely to regain control of all of its territory in the near future.
Ukrainian presidential adviser Mykhailo Podolyak said that ending the war on the borders of its current front lines—where Russia has gained a foothold in the southeast portion of Ukraine—would be “strange,” pointing to the fact that Russia had violated international law by invading it in the first place.
“Ukraine has an absolutely clear understanding and it is spelled out in the peace formula proposed by President [Volodymyr] Zelenskiy, it is clearly stated there—peace can only be fair and peace can only be based on international law,” Podolyak told Reuters.
The plan’s promise to send more military aid to Ukraine only if it admits defeat and ends the war seems a bit counterintuitive—and disingenuous, considering that Trump and his advisers have done practically everything within their power to undermine sending more military aid to the embattled nation since the beginning of the year. And the plan’s obvious benefit to Russia also raises further concerns over Trump’s notoriouslycushy—and sometimes subservient—relationship with Putin.
By Ben Rhodes – July – August, Published on June 18, 2024
Álvaro Bernis
“America is back.” In the early days of his presidency, Joe Biden repeated those words as a starting point for his foreign policy. The phrase offered a bumper-sticker slogan to pivot away from Donald Trump’s chaotic leadership. It also suggested that the United States could reclaim its self-conception as a virtuous hegemon, that it could make the rules-based international order great again. Yet even though a return to competent normalcy was in order, the Biden administration’s mindset of restoration has occasionally struggled against the currents of our disordered times. An updated conception of U.S. leadership—one tailored to a world that has moved on from American primacy and the eccentricities of American politics—is necessary to minimize enormous risks and pursue new opportunities.
To be sure, Biden’s initial pledge was a balm to many after Trump’s presidency ended in the dual catastrophes of COVID-19 and the January 6 insurrection. Yet two challenges largely beyond the Biden administration’s control shadowed the message of superpower restoration. First was the specter of Trump’s return. Allies watched nervously as the former president maintained his grip on the Republican Party and Washington remained mired in dysfunction. Autocratic adversaries, most notably Russian President Vladimir Putin, bet on Washington’s lack of staying power. New multilateral agreements akin to the Iran nuclear deal, the Paris agreement on climate change, or the Trans-Pacific Partnership were impossible, given the vertiginous swings in U.S. foreign policy.
Second, the old rules-based international order doesn’t really exist anymore. Sure, the laws, structures, and summits remain in place. But core institutions such as the UN Security Council and the World Trade Organization are tied in knots by disagreements among their members. Russia is committed to disrupting U.S.-fortified norms. China is committed to building its own alternative order. On trade and industrial policy, even Washington is moving away from core tenets of post–Cold War globalization. Regional powers such as Brazil, India, Turkey, and the Gulf states pick and choose which partner to plug into depending on the issue. Even the high-water mark for multilateral action in the Biden years—support for Ukraine in its fight against Russia—remains a largely Western initiative. As the old order unravels, these overlapping blocs are competing over what will replace it.
A Biden victory in this fall’s election would offer reassurance that the particular risk of another Trump presidency has passed, but that will not vanquish the forces of disorder. To date, Washington has failed to do the necessary audit of the ways its post–Cold War foreign policy discredited U.S. leadership. The “war on terror” emboldened autocrats, misallocated resources, fueled a global migration crisis, and contributed to an arc of instability from South Asia through North Africa. The free-market prescriptions of the so-called Washington consensus ended in a financial crisis that opened the door to populists railing against out-of-touch elites. The overuse of sanctions led to increased workarounds and global fatigue with Washington’s weaponization of the dollar’s dominance. Over the last two decades, American lectures on democracy have increasingly been tuned out.
Indeed, after Hamas’s October 7 attack on Israel and the Israeli military campaign in Gaza, American rhetoric about the rules-based international order has been seen around the world on a split screen of hypocrisy, as Washington has supplied the Israeli government with weapons used to bombard Palestinian civilians with impunity. The war has created a policy challenge for an administration that criticizes Russia for the same indiscriminate tactics that Israel has used in Gaza, a political challenge for a Democratic Party with core constituencies who don’t understand why the president has supported a far-right government that ignores the United States’ advice, and a moral crisis for a country whose foreign policy purports to be driven by universal values. Put simply: Gaza should shock Washington out of the muscle memory that guides too many of its actions.
If Biden does win a second term, he should use it to build on those of his policies that have accounted for shifting global realities, while pivoting away from the political considerations, maximalism, and Western-centric view that have caused his administration to make some of the same mistakes as its predecessors. The stakes are high. Whoever is president in the coming years will have to avoid global war, respond to the escalating climate crisis, and grapple with the rise of new technologies such as artificial intelligence. Meeting the moment requires abandoning a mindset of American primacy and recognizing that the world will be a turbulent place for years to come. Above all, it requires building a bridge to the future—not the past.
THE TRUMP THREAT
One of Biden’s mantras is “Don’t compare me to the Almighty; compare me to the alternative.” As the presidential campaign heats up, it is worth heeding this advice. But to properly outline the dangers of a second Trump term, it is necessary to take Trump’s arguments seriously, despite the unserious form they often take. Much of what Trump says resonates broadly. Americans are tired of wars; indeed, his takeover of the Republican Party would have been impossible without the Iraq war, which discredited the GOP establishment. Americans also no longer trust their elites. Although Trump’s rhetoric about a “deep state” moves quickly into baseless conspiracy theory, it strikes a chord with voters who wonder why so many of the politicians who promised victories in Afghanistan and Iraq were never held to account. And although Trump’s willingness to cut off assistance to Ukraine is abhorrent to many, there is a potent populism to it. How long will the United States spend tens of billions of dollars helping a country whose stated aim—the recapture of all Ukrainian territory—seems unachievable?
Trump has also harnessed a populist backlash to globalization from both the right and the left. Particularly since the 2008 financial crisis, large swaths of the public in democracies have simmered with discontent over widening inequality, deindustrialization, and a perceived loss of control and lack of meaning. It is no wonder that the exemplars of post–Cold War globalization—free trade agreements, the U.S.-Chinese relationship, and the instruments of international economic cooperation itself—have become ripe targets for Trump. When Trump’s more punitive approaches to rivals, such as his trade war with China, didn’t precipitate all the calamities that some had predicted, his taboo-breaking approach appeared to be validated. The United States, it turned out, did have leverage.
But offering a potent critique of problems should not be confused with having the right solutions to them. To begin with, Trump’s own presidency seeded much of the chaos that Biden has faced. Time and again, Trump pursued politically motivated shortcuts that made things worse. To end the war in Afghanistan, he cut a deal with the Taliban over the heads of the Afghan people, setting a timeline for withdrawal that was shorter than the one Biden eventually adopted. Trump pulled out of the Iran nuclear deal despite Iranian compliance, unshackling the country’s nuclear program, escalating a proxy war across the Middle East, and sowing doubt across the world about whether the United States keeps its word. By moving the U.S. embassy in Israel from Tel Aviv to Jerusalem, recognizing the annexation of the Golan Heights, and pursuing the Abraham Accords, he cut the Palestinians out of Arab-Israeli normalization and emboldened Israel’s far right, lighting a fuse that detonated in the current war.
Although Trump’s tougher line with China demonstrated the United States’ leverage, it was episodic and uncoordinated with allies. As a result, Beijing was able to cast itself as a more predictable partner to much of the world, while the supply chain disruptions caused by trade disputes and decoupling created new inefficiencies—and drove up costs—in the global economy. Trump’s lurch from confronting to embracing Kim Jong Un enabled the North Korean leader to advance his nuclear and missile programs under reduced pressure. Closer to home, Trump’s recognition of an alternative Venezuelan government under the opposition leader Juan Guaidó managed to strengthen the incumbent Nicolás Maduro’s hold on power. The “maximum pressure” policy toward Venezuela and Cuba, which sought to promote regime change through crippling sanctions and diplomatic isolation, fueled humanitarian crises that have sent hundreds of thousands of people to the United States’ southern border.
Biden in Washington, D.C., May 2024Evelyn Hockstein / Reuters
A second Trump term would start amid a more volatile global environment than his first, and there would be fewer guardrails constraining a president who would be in command of his party, surrounded by loyalists, and freed from ever having to face voters again. Although there are many risks, three stand out. First, Trump’s blend of strongman nationalism and isolationism could create a permission structure for aggression. A withdrawal of U.S. support for Ukraine—and, perhaps, for NATO itself—would embolden Putin to push deeper into the country. Were Washington to abandon its European allies and promote right-wing nationalism, it could exacerbate political fissures within Europe, emboldening Russian-aligned nationalists in such places as Hungary and Serbia who have echoed Putin in seeking to reunite ethnic populations in neighboring states.
Despite U.S.-Chinese tensions, East Asia has avoided the outright conflict of Europe and the Middle East. But consider the opportunity that a Trump victory would present to North Korea. Fortified by increased Russian technological assistance, Kim could ratchet up military provocations on the Korean Peninsula, believing that he has a friend in the White House. Meanwhile, according to U.S. assessments, China’s military will be ready for an invasion of Taiwan by 2027. If Chinese leader Xi Jinping truly wishes to forcibly bring Taiwan under Beijing’s sovereignty, the twilight of a Trump presidency—by which point the United States would likely be alienated from its traditional allies—could present an opening.
Second, if given the chance, Trump has made it clear that he would almost certainly roll back American democracy, a move that would reverberate globally. If his first election represented a one-off disruption to the democratic world, his second would more definitively validate an international trend toward ethnonationalism and authoritarian populism. Momentum could swing further in the direction of far-right parties in Europe, performative populists in the Americas, and nepotistic and transactional corruption in Asia and Africa. Consider for a moment the aging roster of strongmen who will likely still be leading other powers—not just Xi and Putin but also Narendra Modi in India, Benjamin Netanyahu in Israel, Ali Khamenei in Iran, and Recep Tayyip Erdogan in Turkey. To say the least, this cast of characters is unlikely to promote respect for democratic norms within borders or conciliation beyond them.
This leads to the third danger. In the coming years, leaders will increasingly be confronted with global problems that can be managed or solved only through cooperation. As the climate crisis worsens, a Trump presidency would make a coordinated international response much harder and validate the backlash against environmental policies that has been building within advanced economies. At the same time, artificial intelligence is poised to take off, creating both valuable opportunities and enormous risks. At a moment when the United States should be turning to diplomacy to avoid wars, establish new norms, and promote greater international cooperation, the country would be led by an “America first” strongman.
A TIME TO HEAL
In any administration, national security policy is a peculiar mix of long-standing commitments, old political interests, new presidential initiatives, and improvised responses to sudden crises. Navigating the rough currents of the world, the Biden administration has often seemed to embody the contradictions of this dynamic, with one foot in the past, yearning nostalgically for American primacy, and one foot in the future, adjusting to the emerging world as it is.
Through its affirmative agenda, the administration has reacted well to changing realities. Biden linked domestic and foreign policy through his legislative agenda. The CHIPS Act made substantial investments in science and innovation, including the domestic manufacturing of semiconductors. The act worked in parallel with ramped-up export and investment controls on China’s high-tech sector, which have buttressed the United States’ lead in the development of new technologies such as AI and quantum computing. Although this story is more complicated to tell than one about a tariff-based trade war, Biden’s policy is in fact more coherent: revitalize U.S. innovation and advanced manufacturing, disentangle critical supply chains from China, and maintain a lead for U.S. companies in developing new and potentially transformative technologies.
Gaza should shock Washington out of the muscle memory that guides too many of its actions.
Biden’s most significant piece of legislation, the Inflation Reduction Act, made enormous investments in clean energy technology. These investments will allow the United States to raise its ambition in meeting climate goals by pushing domestic industry and global markets to shift away from fossil fuels faster. Although this breakthrough enhanced U.S. credibility on climate change, it also created new challenges, as even allies have complained that Washington resorted to subsidies instead of pursuing coordinated cross-border approaches to reduce emissions. In this respect, however, the Biden administration was dealing with the world as it is. Congress cannot pass complex reforms such as putting a price on carbon; what it can do is pass large spending bills that invest in the United States.
Despite tensions over U.S. industrial policy, the Biden administration has effectively reinvested in alliances that frayed under Trump. That effort has tacitly acknowledged that the world now features competing blocs, which makes it harder for the United States to pursue major initiatives by working through large international institutions or with other members of the great-power club. Instead, Washington has prioritized groupings of like-minded countries that are, to use a catch phrase, “fit for purpose.” Collaboration with the United Kingdom and Australia on nuclear submarine technology. New infrastructure and AI initiatives through the G-7. Structured efforts to create more consultation among U.S. allies in the Indo-Pacific. This approach involves a dizzying number of parts; one can lose track of the number of regional consultative groups that now exist. But in the context of an unraveled international order, it makes sense to thread together cooperation where possible, while trying to turn new habits of cooperation into enduring arrangements.
Most notably, Biden’s reinvestment in European alliances paid off when Washington was able to swiftly mobilize support for Ukraine in 2022. This task was made easier by the administration’s innovative release of intelligence on Russia’s intentions to invade, an overdue reform of the way that Washington manages information. Although the war has reached a tenuous stalemate, the effort to fortify transatlantic institutions continues to advance. NATO has grown in size, relevance, and resourcing. European Union institutions have taken a more proactive role in foreign policy, most notably in coordinating support for Ukraine and accelerating its candidacy for EU membership. For all the understandable consternation about Washington’s struggle to pass a recent aid bill for Ukraine, Europe’s focus on its own institutions and capabilities was long overdue.
SLOW TO CHANGE
Yet there are three important ways in which the Biden administration has yet to recalibrate its approach to the world of post-American primacy. The first has to do with American politics. On several issues that engender controversy in Congress, the administration has constrained or distorted its options by preemptively deferring to outdated hard-liners. Even as Trump has demonstrated how the left-right axis has been scrambled on foreign policy, Biden at times feels trapped in the national security politics of the immediate post-9/11 era. Yet what once allowed a politician to appear tough to appease hawks in Washington was rarely good policy; now, it is no longer necessarily good politics.
In Latin America, the Biden administration was slow to pivot away from Trump’s “maximum pressure” campaigns on Venezuela and Cuba. Biden maintained, for example, the avalanche of sanctions that Trump imposed on Cuba, including the cynical return of that country to the State Department’s list of state sponsors of terrorism just before leaving office, in January 2021. The result has been an acute humanitarian crisis in which U.S. sanctions exacerbated shortages of basic staples such as food and fuel, contributing to widespread suffering and migration. In the Middle East, the administration failed to move swiftly to reenter the politically contested Iran nuclear deal, opting instead to pursue what Biden called a “longer and stronger” agreement, even though Trump was the one who violated the deal’s terms. Instead,the administration embraced Trump’s Abraham Accords as central to its Middle East policy while reverting to confrontation with Iran. This effectively embraced Netanyahu’s preferred course: a shift away from pursuing a two-state solution to the Israeli-Palestinian conflict and toward an open-ended proxy war with Tehran.
Anyone who has worked at the nexus of U.S. politics and national security knows that avoiding friction with anti-Cuban and pro-Israeli hard-liners in Congress can feel like the path of least resistance. But that logic has turned into a trap. After October 7, Biden decided to pursue a strategy of fully embracing Netanyahu—insisting (for a time) that any criticism would be issued in private and that U.S. military assistance would not be conditioned on the actions of the Israeli government. This engendered immediate goodwill in Israel, but it preemptively eliminated U.S. leverage. It also overlooked the far-right nature of Netanyahu’s governing coalition, which offered warning signs about the indiscriminate way in which it planned to prosecute its military campaign, as Israeli officials cut off food and water flowing into Gaza within days of Hamas’s attack. In the months that followed, the administration has been trying to catch up to a deteriorating situation, evolving from a strategy of embracing Netanyahu, to one of issuing rhetorical demands that were largely ignored, to one of partial restrictions on offensive military assistance. Ironically, by being mindful of the political risks of breaking with Netanyahu, Biden invited greater political risks from within the Democratic coalition and around the world.
The temptation to succumb to Washington’s outdated instincts has contributed to a second liability: the pursuit of maximalist objectives. The administration has shown some prudence in this area. Even as competition ramped up with China, Biden has worked over the last year to rebuild lines of communication with Beijing and has largely avoided provocative pronouncements on Taiwan. And even as he committed the United States to helping Ukraine defend itself, Biden set the objective of avoiding a direct war between the United States and Russia (although his rhetoric did drift into endorsing regime change in Moscow). The bigger challenge has at times come from outside the administration, as some supporters of Ukraine indulged in a premature triumphalism that raised impossible expectations for last year’s Ukrainian counteroffensive. Paradoxically, this impulse ended up hurting Ukraine: when the campaign inevitably came up short, it made the broader U.S. policy toward Ukraine look like a failure. Sustaining support for Ukraine will require greater transparency about what is achievable in the near term and an openness to negotiations in the medium term.
Biden and U.S. officials meeting with a Chinese delegation in Woodside, California, November 2023 Kevin Lamarque / Reuters
Gaza also showcases the danger of maximalist aims. Israel’s stated objective of destroying Hamas has never been achievable. Since Hamas would never announce its own surrender, pursuing this goal would require a perpetual Israeli occupation of Gaza or the mass displacement of its people. That outcome may be what some Israeli officials really want, as evidenced by right-wing ministers’ own statements. It is certainly what many people around the world, horrified by the campaign in Gaza, believe the Israeli government really wants. These critics wonder why Washington would support such a campaign, even as its own rhetoric opposes it. Instead of seeking to moderate Israel’s unsustainable course, Washington needs to use its leverage to press for negotiated agreements, Palestinian state building, and a conception of Israeli security that is not beholden to expansionism or permanent occupation.
Indeed, too many prescriptions sound good in Washington but fail to account for simple realities. Even with the United States’ military advantage, China will develop advanced technologies and maintain its claim over Taiwan. Even with sustained U.S. support, Ukraine will have to live next to a large, nationalist, nuclear-armed Russia. Even with its military dominance, Israel cannot eliminate the Palestinian demand for self-determination. If Washington allows foreign policy to be driven by zero-sum maximalist demands, it risks a choice between open-ended conflict and embarrassment.
This leads to the third way in which Washington must change its approach. Too often, the United States has appeared unable or unwilling to see itself through the eyes of most of the world’s population, particularly people in the global South who feel that the international order is not designed for their benefit. The Biden administration has made laudable efforts to change this perception—for instance, delivering COVID-19 vaccines across the developing world, mediating conflicts from Ethiopia to Sudan, and sending food aid to places hit hard by shortages exacerbated by the war in Ukraine. Yet the overuse of sanctions, along with the prioritization of Ukraine and other U.S. geopolitical interests, misreads the room. To build better ties with developing countries, Washington needs to consistently prioritize the issues they care about: investment, technology, and clean energy.
Once again, Gaza interacts with this challenge. To be blunt: for much of the world, it appears that Washington doesn’t value the lives of Palestinian children as much as it values the lives of Israelis or Ukrainians. Unconditional military aid to Israel, questioning the Palestinian death toll, vetoing cease-fire resolutions at the UN Security Council, and criticizing investigations into alleged Israeli war crimes may all feel like autopilot in Washington—but that’s precisely the problem. Much of the world now hears U.S. rhetoric about human rights and the rule of law as cynical rather than aspirational, particularly when it fails to wrestle with double standards. Total consistency is unattainable in foreign policy. But by listening and responding to more diverse voices from around the world, Washington could begin to build a reservoir of goodwill.
A FAREWELL TO PRIMACY
In its more affirmative agenda, the Biden administration is repositioning the United States for a changing world by focusing on the resilience of its own democracy and economy while rebooting alliances in Europe and Asia. To extend that regeneration into something more global and lasting, it should abandon the pursuit of primacy while embracing an agenda that can resonate with more of the world’s governments and people.
As was the case in the Cold War, the most important foreign policy achievement will simply be avoiding World War III. Washington must recognize that all three fault lines of global conflict today—Russia-Ukraine, Iran-Israel, and China-Taiwan—run across territories just beyond the reach of U.S. treaty obligations. In other words, these are not areas where the American people have been prepared to go to war directly. With little public support and no legal obligation to do that, Washington should not count on bluffing or military buildups alone to resolve these issues; instead, it will have to focus relentlessly on diplomacy, buttressed by reassurance to frontline partners that there are alternative pathways to achieving security.
Avoiding friction with anti-Cuban and pro-Israeli hard-liners in Congress can feel like the path of least resistance.
In Ukraine, the United States and Europe should focus on protecting and investing in the territory controlled by the Ukrainian government—drawing Ukraine into European institutions, sustaining its economy, and fortifying it for lengthy negotiations with Moscow so that time works in Kyiv’s favor. In the Middle East, Washington should join with Arab and European partners to work directly with Palestinians on the development of new leadership and toward the recognition of a Palestinian state, while supporting Israel’s security. Regional de-escalation with Iran should, as it did during the Obama administration, begin with negotiated restrictions on its nuclear program. In Taiwan, the United States should try to preserve the status quo by investing in Taiwanese military capabilities while avoiding saber rattling, by structuring engagement with Beijing to avoid miscalculation, and by mobilizing international support for a negotiated, peaceful resolution to Taiwan’s status.
Hawks will inevitably attack diplomacy on each of these issues with tired charges of appeasement, but consider the alternative of seeking the total defeat of Russia, regime change in Iran, and Taiwanese independence. Can Washington, or the world, risk a drift into global conflagration? Moreover, the reality is that sanctions and military aid alone will not stop war from spreading or somehow cause the governments of Russia, Iran, and China to collapse. Better outcomes, including within those countries, will be more attainable if Washington takes a longer view. Ultimately, the health of the United States’ own political model and society is a more powerful force for change than purely punitive measures. Indeed, one lesson that is lost on today’s hawks is that the civil rights movement did far more to win the Cold War than the war in Vietnam did.
None of this will be easy, and success is not preordained, since unreliable adversaries also have agency. But given the stakes, it is worth exploring how a world of competing superpower blocs could be knitted into coexistence and negotiation on issues that cannot be dealt with in isolation. For instance, AI presents one area in which nascent dialogue between Washington and Beijing should evolve into the pursuit of shared international norms. Laudable U.S. efforts to pursue collaborative research on AI safety with like-minded countries will inevitably have to expand to further include China in higher-level and more consequential talks. These efforts should seek agreement on the mitigation of extreme harms, from the use of AI in developing nuclear and biological weapons to the arrival of artificial general intelligence, an advanced form of AI that risks surpassing human capacities and controls. At the same time,as AI moves out into the world, the United States can use its leadership to work with countries that are eager to harness the technology for positive ends, particularly in the developing world. The United States could offer incentives for countries to cooperate with Washington on both AI safety and affirmative uses of new technologies.
Biden and Saudi Crown Prince Mohammed bin Salman in Jeddah, Saudi Arabia, July 2022 Mandel Ngan / Reuters
A similar dynamic is required on clean energy. If there is a second Biden administration, most of its efforts to combat climate change will likely shift from domestic action to international cooperation, particularly if there is divided government in Washington. As the United States works to secure supply chains for critical minerals used for clean energy, it will need to avoid constantly working at cross-purposes with Beijing. At the same time, it has an opportunity—through “de-risking” supply chains, forging public-private partnerships, and starting multilateral initiatives—to invest more in parts of Africa, Latin America, and Southeast Asia that have not always been an attractive destination for American capital. In a sense, the Inflation Reduction Act has to be globalized.
Finally, the United States should focus its support for democracy on the health of existing open societies and offering lifelines to besieged civil society groups around the world. As someone who has made the case for putting support for democracy at the center of U.S. foreign policy, I must acknowledge that the calcification of the democratic recession in much of the world requires Washington to recalibrate. Instead of framing the battle between democracy and autocracy as a confrontation with a handful of geopolitical adversaries, policymakers in democracies must recognize that it is first and foremost a clash of values that must be won within their own societies. From that self-corrective vantage point, the United States should methodically invest in the building blocks of democratic ecosystems: anticorruption and accountability initiatives, independent journalism, civil society, digital literacy campaigns, and counter-disinformation efforts. The willingness to share sensitive information, on display in the run-up to war in Ukraine, should be applied to other cases where human rights can be defended through transparency. Outside government, democratic movements and political parties across the world should become more invested in one another’s success, mirroring what the far right has done over the last decade by sharing best practices, holding regular meetings, and forming transnational coalitions.
Ultimately, the most important thing that America can do in the world is detoxify its own democracy, which is the main reason a Trump victory would be so dangerous. In the United States, as elsewhere, people are craving a renewed sense of belonging, meaning, and solidarity. These are not concepts that usually find their way into foreign policy discussions, but if officials do not take that longing seriously, they risk fueling the brand of nationalism that leads to autocracy and conflict. The simple and repeated affirmation that all human life matters equally, and that people everywhere are entitled to live with dignity, should be America’s basic proposition to the world—a story it must commit to in word and deed.
BEN RHODES is a co-host of the podcast Pod Save the World and the author of After the Fall: Being American in the World We’ve Made. From 2009 to 2017, he served as U.S. Deputy National Security Adviser for Strategic Communications and Speechwriting in the Obama administration.
Clarence Thomas and John Roberts Are at a Fork in the Road
David French – June 23, 2024
Credit…Tasos Katopodis/Getty Images
Two years ago, when the Supreme Court decided New York State Rifle and Pistol Association Inc. v. Bruen, it created a jurisprudential mess that scrambled American gun laws. On Friday not only did the cleanup begin, but the Supreme Court also cleared the way for one of the most promising legal innovations for preventing gun violence: red flag laws.
The Bruen ruling did two things. First, it rendered a sensible and, in my view, correct decision that the “right of the people to keep and bear arms,” as articulated in the Second Amendment, includes a right to bear arms outside the home for self-defense. But the right isn’t unlimited. As Justice Brett Kavanaugh wrote in his concurrence in Bruen, the court did not “prohibit states from imposing licensing requirements for carrying a handgun for self-defense” and that “properly interpreted, the Second Amendment allows a ‘variety’ of gun regulations.”
At the same time, the court articulated a “text, history and tradition” test for evaluating gun restrictions in future federal cases. Under this test, gun control measures were constitutional only if the government could demonstrate those restrictions were “consistent with the nation’s historical tradition of firearm regulation.” That was the most significant element of the Bruen case. Before Bruen, lower courts had struggled to establish a uniform legal test for evaluating gun restrictions, and the Supreme Court hadn’t provided any clarity.
Justice Clarence Thomas wrote the majority opinion in a 6-to-3 decision split along ideological lines. He applied the text, history and tradition test by walking through the very complex, often contradictory, history of American gun laws to determine whether New York’s restrictions had analogies with the colonial period or the periods after ratification of the Second Amendment and the Fourteenth Amendment, which applied the Second Amendment to the states. Under a fair reading of Thomas’s opinion, lower courts would be hard pressed to uphold any gun restriction unless they could point to an obvious historical match.
Not only was the history messy, but judicial reliance on founding-era legislation suffers from an additional conceptual flaw: State legislatures are hardly stuffed with constitutional scholars. Then and now, our state legislatures are prone to enact wildly unconstitutional legislation.
Our courts exist in part to check legislatures when they go astray. The courts do not rely on legislatures to establish constitutional doctrine. In our divided system of government, legislators are not tasked with interpreting constitutional law. Yes, they should take the Constitution into account when they draft laws, but the laws they draft aren’t precedent. They do not and should not bind the courts.
United States v. Rahimi, the case the Supreme Court decided on Friday, is a product of Bruen’s confusion. And the outcome is fascinating. Five of the six justices who voted in the majority in Bruen backed away from the clear implications of the decision. Thomas, by contrast, doubled down.
The case involves a man from Texas named Zackey Rahimi who was convicted of violating a federal law that prohibits individuals subject to domestic violence restraining orders from possessing firearms. He had threatened his girlfriend and another woman with a gun, and he was a suspect in a spate of additional shootings. After he threatened his girlfriend, he entered into an agreed domestic violence restraining order prohibiting him from threatening his girlfriend or from contacting her unless they were discussing their child. He promptly violated that order by approaching her home and contacting her on social media.
As Chief Justice John Roberts recounts in his majority opinion, when the police obtained a search warrant of Rahimi’s home to investigate the additional shootings, “they discovered a pistol, a rifle, ammunition — and a copy of the restraining order.”
Rahimi was indicted on one count of possessing a firearm while subject to a domestic violence restraining order. He challenged the indictment, arguing that Section 922(g)(8), the law he was charged under, violated the Second Amendment. The trial court and the court of appeals initially rejected the argument, but while the Fifth Circuit was considering his petition for a rehearing with the entire court, the Supreme Court decided Bruen.
The appeals court then took a fresh look at his case, applying the Thomas test. It searched for clear historical matches and — unable to find any — held that the government failed “to demonstrate that § 922(g)(8)’s restriction of the Second Amendment right fits within our nation’s historical tradition of firearm regulation.” If this ruling held, every person subject to a domestic violence restraining order could have immediate access to firearms, assuming no other legal restrictions applied.
Even worse, if the Fifth Circuit’s ruling had stood, lawmakers seeking to justify virtually any gun regulation would have to be prepared to find colonial or early-American analogies for their proposed restriction or watch it fail in court. This would have meant that lawmakers facing modern gun violence problems involving modern weapons would have been constrained into essentially colonial and founding-era legal solutions.
In essence, that is the exact reverse of an argument that some gun control proponents make, that the Second Amendment protects only possession of colonial-era weapons. Under the Thomas test, the Second Amendment would permit only colonial-era restrictions.
On Friday, eight justices of the Supreme Court not only ruled against Rahimi. They clarified their approach to text, history and tradition in a way that freed lower courts from the straitjacket of finding precise historical analogies. Roberts declared that “some courts have misunderstood the methodology of our recent Second Amendment cases.” The court’s precedents “were not meant to suggest a law trapped in amber.” Or, as Justice Amy Coney Barrett wrote in her concurrence, “Historical regulations reveal a principle, not a mold.”
As a practical matter, this means, as Roberts wrote, that “when a challenged regulation does not precisely match its historical precursors, ‘it still may be analogous enough to pass constitutional muster.’” Applying this more flexible framework, the court reached a holding that will echo beyond Rahimi’s case: “An individual found by a court to pose a credible threat to the physical safety of another may be temporarily disarmed consistent with the Second Amendment.”
That holding is relevant not just to domestic violence restraining orders; it’s also relevant to so-called red-flag laws or extreme risk protective orders. Those laws, adopted in 21 states, empower specific individuals (like law enforcement or, in some cases, family members) to petition a court to order a person to surrender his guns if he exhibits dangerous or threatening behavior.
The reason for red-flag laws is clear: Research has demonstrated that mass shooters tend to broadcast violent intentions before they act. A National Institute of Justice-funded study of more than 50 years of mass killings, for example, found that “in most cases” mass shooters “engaged in leaking their plans before opening fire.” In 2018 the Republican governor of Arizona, Doug Ducey, commissioned a “Safe Arizona Schools” report, which found that in every one of the most recent and severe school shootings, a red-flag law could have prevented tragedy.
Thomas was the lone dissenter in Rahimi. Five justices wrote their own concurrences, many of them arguing that the Fifth Circuit misunderstood and misapplied Bruen. But Thomas argued that the Fifth Circuit got the analysis right because the founding generation “addressed the same societal problem as §922(g)(8) through the ‘materially different means’ of surety laws.”
Surety laws required a person who was suspected of threatening “future misbehavior” to post a bond, a sum of money that he’d forfeit if he broke the law. If he didn’t post a bond, he’d be jailed. But such reliance on a specific, narrow past legislative approach isn’t required by originalism. It is, itself, a policy choice.
Barrett put her objections well. “Imposing a test that demands overly specific analogues has serious problems,” she wrote. “It forces 21st-century regulations to follow late-18th-century policy choices, giving us ‘a law trapped in amber.’ And it assumes that founding-era legislatures maximally exercised their power to regulate, thereby adopting a ‘use it or lose it’ view of legislative authority.”
“Such assumptions are flawed,” Barrett said, “and originalism does not require them.”
But that doesn’t mean history is useless. As Roberts wrote in the majority opinion, surety laws help confirm “what common sense suggests: When an individual poses a clear threat of physical violence to another, the threatening individual may be disarmed.”
The difference between Roberts and Thomas is clear. Roberts looks to past practice to establish a principle. Thomas looks to past practice as essentially establishing precedent.
Roberts gets it right. When we consider new policies in the present, the acts of the past are instructive but not binding. Modern American lawmakers are not limited by the colonial imagination.
Serge Schmemann is a member of the editorial board and the author of a book about Russia, “Echoes of a Native Land.”Want to stay updated on what’s happening in Russia? Sign up for Your Places: Global Update, and we’ll send our latest coverage to your inbox.
Many years ago, in the 1980s, I went to Brighton Beach, then in its heyday as a district of newly arrived Soviet Jews, to celebrate the first year (there would not be many more) of the lively local Russian-language weekly, The New American. It was a grand event, rich in humor and tinged with nostalgia. I asked a middle-aged partygoer for his thoughts on his lost homeland, and his reply has stayed with me: “I hate Russia, for forcing me to leave her.”
It was an apt summary of what waves of émigrés from Russia and the Soviet Union since the early 20th century have felt: a sorrowful sense of loss for a motherland — what Russians call “toska po rodine” — coupled with resentment at the autocratic powers that forced them out. My grandparents were among the “White” Russians who fled the Revolution and moved to Paris in the 1920s. A second wave of emigrants left in World War II. The third, Soviet Jews, started leaving in the 1970s. Vladimir Putin has now created another wave of people fleeing Russia, and many of them may still believe, as my forebears did, that they will one day return to the homeland.
Most probably will not.
It’s hard to say precisely where Russian exiles stand, politically or in their sense of attachment to Russia. The waves of emigrants differ widely one from another, and in the United States, they have not behaved like immigrants from Italy, China or Poland who formed hyphenated-American communities and organizations that have persisted over generations. Russian immigrants to America have, by comparison, melded quickly into the general population. Brighton Beach is one of the few places with any Russian flavor in the United States.
Still, the prevailing attitude I’ve encountered among Russian émigrés is the love-hate expressed by my interlocutor in Brighton Beach. It’s the love of an extraordinary culture, a deep attachment to the expanse of steppes and taiga, along with contempt for the chronic misrule, adventurism, imperial illusions and corruption of the leaders.
At least, that was the attitude before Feb. 24, 2022, when Mr. Putin ordered the full-scale invasion of Ukraine. Now, I more often encounter, and feel, a new attitude: shame.Sign up for the Opinion Today newsletter Get expert analysis of the news and a guide to the big ideas shaping the world every weekday morning. Get it sent to your inbox.
The émigrés I grew up with, and those I came to know in America and as a reporter in Israel, rarely felt troubled by the sins of their motherland. Why would they? There were no politics in the usual sense in the Russia they came from, no sense among the vast majority of the population that they had any say in what their self-perpetuating leaders did for them or to them from behind the Kremlin ramparts. The Gulag was not their doing; their Russia was the culture, the scramble for scarce goods, the anecdotes told around vodka in steamy kitchens, the shashlik by a lazy river. Most Russians concentrated on protecting their lives from “them,” as people in the Soviet Union would refer to the leadership and its secret police, a finger pointed to the ceiling, and to survive. Or leave.
The Russian invasion of Ukraine — so cruel, so pointless, so devastating — has changed all this, at least for those not mesmerized by Mr. Putin’s recidivist claptrap. It’s hard not to feel shame at theevidence of Russians killing and raping people who did them no wrong, people who share so much of their history and culture.
And it has become difficult to feel pride in all the things that Russians can genuinely boast about — the great books, the Bolshoi, the hockey stars, the spirituality — when Mr. Putin is dispatching waves of boys to kill and die for his false version of Russia’s manifest destiny and his personal grievances against the West.
This is not necessarily a logical reaction. Tolstoy or Tchaikovsky are not to blame for Mariupol. And most Russians are not directly complicit in Mr. Putin’s malice. But Mr. Putin rose to power pledging to restore greatness to Russia, and the key to that is the desire among ordinary Russians to feel, again, a sense of belonging to a globally respected power. Russians may have been too caught up in Mr. Putin’s chimera to recognize that the seizure of Crimea or the incursions into Donetsk and Luhansk were a precursor of much worse.
When the Russian tanks began their grim parade toward Kyiv on Feb. 24, 2022, Russians, too, were in shock. “We, the Russians living inside and outside of the country, will have to bear the shame of this situation for years to come,” wrote Anastasia Piatakhina Giré, a psychotherapist in Paris, shortly after the invasion. She grew up in the Soviet Union, and many of her patients are displaced Russians. “We can do very little to turn down the volume of this feeling, no matter how many Ukrainian flags we display on our social media feeds or either publicly or privately in our daily lives.”
A year later, another expatriate, Anastasia Edel, the author of “Russia: Putin’s Playground: Empire, Revolution and the New Tsar,” wrote a syndicated column about trying to come to grips with the shame and confusion: “As someone who was shaped by Russian and Soviet literature, I have been made to feel like an unwilling partner to Russian crimes. That is why, since last February, I have abandoned any pretense of being a cultural envoy. I have been an envoy of nothing — just another immigrant who came to America in search of a better life.”
That is the tragic irony of Mr. Putin’s war. His attempt to “restore Russian greatness” through violence and hatred has tainted Russia’s real greatness for years to come, just as his attempt to quash Ukrainian nationhood has steeled its foundations. We know from the Germans’ postwar history that restoring a battered national identity is a project of decades, maybe more.
In the end, Tolstoy and Tchaikovsky will survive, as did Goethe and Bach, and Ukraine will be rebuilt and incorporated more closely in the West. But for Russians and those of us who identify even a little bit as Russian, something elemental has been destroyed, and a lot of painful soul-searching lies ahead.
Serge Schmemann joined The Times in 1980 and worked as the bureau chief in Moscow, Bonn and Jerusalem and at the United Nations. He was editorial page editor of The International Herald Tribune in Paris from 2003 to 2013.
How the US supreme court could be a key election issue: ‘They’ve grown too powerful’
David Smith in Washington – June 15, 2024
Activists call for the passage of a binding code of ethics for Supreme Court justices in front of the supreme court in Washington DC on 30 October 2023.Photograph: Shawn Thew/EPA-EFE
“Look at me, look at me,” said Martha-Ann Alito. “I’m German, from Germany. My heritage is German. You come after me, I’m gonna give it back to you.”
It was a bizarre outburst from the wife of a justice on America’s highest court. Secretly recorded by a liberal activist, Martha-Ann Alito complained about a neighbour’s gay pride flag and expressed a desire to fly a Sacred Heart of Jesus flag in protest.
This, along with audio clips of Justice Samuel Alito himself and a stream of ethics violations, have deepened public concerns that the supreme court is playing by its own rules. The Democratic representative Jamie Raskin has described a “national clamour over this crisis of legitimacy” at the court.
A poll last month for the progressive advocacy organisation Stand Up America suggests that the supreme court will now play a crucial role in voters’ choices in the 2024 election. Nearly three in four voters said the selection and confirmation of justices will be an important consideration for them in voting for both president and senator in November.
Reed Galen, a co-founder of the Lincoln Project, a pro-democracy group, said: “The idea that these guys act as if they are kings ruling from above, to me, should absolutely be an issue. It was always Republicans who said we hate unelected judges legislating from the bench and we hate judicial activism. That’s all this stuff is.”
Public trust in the court is at an all-time low amid concerns over bias and corruption. Alito has rejected demands that he recuse himself from a case considering presidential immunity after flags similar to those carried by 6 January 2021 rioters flew over his homes in Virginia and New Jersey. Justice Clarence Thomas has ignored calls to step aside because of the role his wife, Ginni, played in supporting efforts to overturn Donald Trump’s loss to Joe Biden in 2020.
Ethical standards have been under scrutiny following revelations that some justices failed to report luxury trips, including on private jets, and property deals. Last week Thomas, who has come under criticism for failing to disclose gifts from the businessman and Republican donor Harlan Crow, revised his 2019 form to acknowledge he accepted “food and lodging” at a Bali hotel and at a California club.
These controversies have been compounded by historic and hugely divisive decisions. The fall of Roe v Wade, ending the nationwide right to abortion after half a century, was seen by many Democrats as a gamechanger in terms of people making a connection between the court and their everyday lives.
Even though debate among members of Congress would lead you to believe that court reform is a polarising issue, it really isn’t
Maggie Jo Buchanan, managing director of Demand Justice
There are further signs of the debate moving beyond the Washington bubble. Last week, the editorial board of the Chicago Sun-Times newspaper argued that, since the court’s own ethics code proved toothless, Congress should enact legislation that holds supreme court justices to higher ethical standards. The paper called for the local senator Dick Durbin of Illinois, who is chair of the Senate judiciary committee, to hold a hearing on the issue.
Maggie Jo Buchanan, managing director of the pressure group Demand Justice, said: “It’s important to keep in mind that, even though debate among members of Congress would lead you to believe that court reform is a polarising issue, it really isn’t. For years we have seen broad bipartisan support for basic supreme court reforms such as ethics.
“A broad bipartisan consensus exists that they’ve grown too powerful, that they have too much power over laws and regulations. That’s shared among nearly three-fourths of Americans, including 80% of independents, so the demand is there and this isn’t something where it’s Democrats versus Republicans in the sense of real people. The American people want change and want to check the judiciary.”
Congressional Democrats have introduced various bills including one to create an independent ethics office and internal investigations counsel within the supreme court. Broader progressive ideas include expanding the number of seats on the court or limiting the justices to 18-year terms rather than lifetime appointments.
But such efforts have been repeatedly thwarted by Republicans, who over decades impressed on their base the importance of the court, ultimately leading to a 6-3 conservative majority including three Trump appointees.
This week Senate Republicans blocked the Supreme Court Ethics, Recusal, and Transparency Act, legislation that would require the court to adopt a binding code of conduct for all justices, establish procedures to investigate complaints of judicial misconduct and adopt rules to disclose gifts, travel and income received by them that are at least as rigorous as congressional disclosure rules.
In response, Christina Harvey, executive director of Stand Up America, said its “nearly 2 million members are fired up and ready to continue advocating for supreme court reform – in Congress and at the ballot box”.
But Galen of the Lincoln Project worries that Democrats lack the necessary aggression to capitalise on the issue. “[Senate majority leader Chuck] Schumer and Durbin are not change agents. They consider themselves institutionalists and they continue to call themselves that. They’re in a place where they can’t possibly conceive of something like that. Democrats are just afraid of their own shadow.”
That principle might apply to the US president himself. The 81-year-old, who served in the Senate for 36 years, is reluctant to call out justices by name or call for sweeping reforms of the court, although he is making its decision to end the constitutional right to abortion a centrepiece of his campaign.
Ed Fallone, an associate law professor at Marquette University Law School said: “I don’t know that Joe Biden is the politician to try and benefit from this issue. Biden has always presented himself as an institutionalist and more of a centrist than many segments of the Democratic party.
“There’s a real risk here for Biden because, if he does try to get political advantage from the public’s growing concern about the supreme court, it seems to conflict with his message that we should all respect the court system and the judicial system and the Trump prosecutions and the various legal problems of former Trump advisers. It seems difficult to reconcile telling the public to respect the judicial system with also embracing the idea that the very top of the system is flawed and needs reform.”
Fallone added: “You will see other Democrats seize on this issue and start to push it, in particular those who are are going to try to energise the left side of the base, maybe not necessarily for this election, but maybe anticipating Biden might lose and starting already to look ahead to the following election.”
Other argue that, competing for voter attention with the cost of living, immigration and other issues, the supreme court will ultimately fade into background noise.
Henry Olsen, a senior fellow at the Ethics and Public Policy Center think-tank in Washington DC, said: “The middle of the country, the independents and the swing voters do not care about the supreme court, and I don’t think any effort by Democrats or the media bringing up these things about Alito or Thomas is going to register or motivate those people. It motivates partisans. It doesn’t motivate swing voters on either side.”
