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Tag: Supreme Court justices

  • Who sits where at Trump’s State of the Union address: A visual guide

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    President Donald Trump will address a joint session of the 119th Congress on Tuesday, after accepting House Speaker Mike Johnson’s formal invitation in January to speak.It’s an opportunity for the president to outline his administration’s goals and address the nation’s most pressing issues.Related video above: Massachusetts teen once detained by ICE will attend State of the UnionWhen Trump takes the dais Tuesday night, Vice President JD Vance and Johnson are expected to be seated behind him on either side.In front of the president, Cabinet members, Supreme Court justices, Joint Chiefs of Staff, former members of Congress and members of the diplomatic corps will be seated. Seats in the rest of the chamber are not assigned, according to the Congressional Research Service. Senators and House members are seated on a first-come, first-served basis.The president and first lady also typically invite about two dozen guests to sit in the gallery, to help put a human face to the president’s message for both policymakers and viewers at home.One person will be absent during the speech: the designated survivor. The designated survivor is a member of the Cabinet chosen to remain in a secure location during the speech in case of catastrophe, to ensure continuity of government. Doug Collins, the secretary of the Department Veterans Affairs, was assigned the role during the president’s address in 2025.

    President Donald Trump will address a joint session of the 119th Congress on Tuesday, after accepting House Speaker Mike Johnson’s formal invitation in January to speak.

    It’s an opportunity for the president to outline his administration’s goals and address the nation’s most pressing issues.

    Related video above: Massachusetts teen once detained by ICE will attend State of the Union

    When Trump takes the dais Tuesday night, Vice President JD Vance and Johnson are expected to be seated behind him on either side.

    In front of the president, Cabinet members, Supreme Court justices, Joint Chiefs of Staff, former members of Congress and members of the diplomatic corps will be seated. Seats in the rest of the chamber are not assigned, according to the Congressional Research Service. Senators and House members are seated on a first-come, first-served basis.

    The president and first lady also typically invite about two dozen guests to sit in the gallery, to help put a human face to the president’s message for both policymakers and viewers at home.

    One person will be absent during the speech: the designated survivor. The designated survivor is a member of the Cabinet chosen to remain in a secure location during the speech in case of catastrophe, to ensure continuity of government. Doug Collins, the secretary of the Department Veterans Affairs, was assigned the role during the president’s address in 2025.

    CNN, AP, Getty Images, Government Publishing Office, US House of Representatives via CNN Newsource

    When Trump takes the dais Tuesday night, Vice President JD Vance and Johnson are expected to be seated behind him on either side.

    state of the union seating chart

    CNN via CNN Newsource

    Each House member may invite one guest, with seating available on a first-come, first-served basis. The president’s guests sit with the first lady in her box on stage left.

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  • The Supreme Court’s Complicated Takedown of Trump’s Tariffs

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    The case that the Court decided, Learning Resources, Inc. v. Trump and Trump v. V.O.S. Selections, was the consolidation of two lawsuits, brought by small businesses and states, challenging Trump’s use of IEEPA. IEEPA is a powerful tool; its provisions include a long list of commerce-related actions, such as imposing export restrictions and quotas, that a President can take in the case of a national emergency. The problem for Trump is that “tariffs” is not on the list. Neither are related terms, like “duties” or “customs.” The entire world-market-upsetting tariff scheme—under which, Roberts wrote in the majority decision, Trump asserted that “the independent power to impose tariffs on imports from any country, of any product, at any rate, for any amount of time”—was built on nothing more than the awkward placement of the word “regulate” a couple of lines away from the word “importation.” And, as Roberts stated and a six-Justice majority found, “Those words cannot bear such weight.”

    Justice Elena Kagan, in a concurrence joined by Justices Sonia Sotomayor and Ketanji Brown Jackson, tallied up nine verbs in IEEPA (such as “investigate,” “block,” “direct”) and eleven objects related to foreign commerce (“acquisition,” “withdrawal,” “transfer”), meaning that there are “99 actions a President can take to address a foreign threat.” But, if the action in question, “regulate . . . importation,” really meant “impose tariffs,” it would be the “the odd man out,” in Kagan’s words, because “exactly none of the other 98 involves raising revenues.” IEEPA has been used, by various Presidents, more than seventy times, for example, to impose sanctions on Iran and Cuba; none has used it for tariffs.

    This question of revenue was highly significant to the Justices, because tariffs are a kind of tax, and, in our constitutional system, the power to tax is a central aspect of Congress’s power, not the President’s. (In 2012, the statute creating Obamacare survived a major constitutional challenge because the Court decided, in a landmark decision also written by Roberts, that the individual mandate to acquire health care was a form of tax.) The presumption is that, if Congress gave the President the ability to impose tariffs, as it sometimes does, it would make it reasonably clear that it was doing so. But IEEPA does not look like any kind of a tax law. In the oral arguments for the case, D. John Sauer, Trump’s Solicitor General, tried to get around the problem by contending that Trump’s tariffs shouldn’t really be thought of as taxes at all—a position that was met with near-mockery from even some of the conservative Justices.

    And Trump’s new tariffs have raised a great deal of revenue—almost two hundred billion dollars’ worth, according to an estimate by economists at the Penn-Wharton Budget Model for Reuters. But Roberts’s opinion says nothing about whether or how that money might be refunded. “While the Supreme Court’s decision was pending, hundreds of importers filed suit at the Court of International Trade, seeking refunds of the tariffs paid,” Mark Wu, a professor of international trade law at Harvard Law School, told me. “Those cases were stayed, but with the decision handed down, those cases can now proceed.” Trump, on Friday, wondered why the Court hadn’t put in a sentence telling him whether to “keep the money or don’t keep the money.” He added, “I guess it has to get litigated for the next two years.” A moment later, Trump upped that estimate to five years.

    The lack of guidance on refunds may be an indication that Learning Resources, Inc. v. Trump was not a simple case for the Justices, despite the lopsided outcome. There are seven separate opinions, adding up to a hundred and seventy pages. The principal dissent, by Brett Kavanaugh—whom Trump, on Friday, thanked for “his genius”—is more than sixty pages. Justices Samuel Alito and Clarence Thomas joined Kavanaugh; Thomas also wrote a dissent in support of broad tariff powers for Presidents. And even the Justices who agree with one another are in some ways at odds. Roberts only mustered a majority for part of his opinion; midway through, the three liberals peeled off, meaning that, although there is a 6–3 majority on striking down the tariffs, there is no full consensus on the reasoning or its implications. Specifically, the liberals declined to join the section in which Roberts wrote that Trump’s tariffs are unlawful because they do not meet the demands of something called the “major questions doctrine.”

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    Amy Davidson Sorkin

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  • Murky outlook for businesses after tariff ruling prompts countermoves by Trump

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    NEW YORK — Businesses face a new wave of uncertainty after the Supreme Court struck down tariffs imposed by President Donald Trump under an emergency powers law and Trump vowed to work around the ruling to keep his tariffs in place.

    The Trump administration says its tariffs help boost American manufacturers and reduce the trade gap. But many U.S. businesses have had to raise prices and adjust in other ways to offset higher costs spurred by the tariffs.

    It remains to be seen how much relief businesses and consumers will actually get from Friday’s ruling. Within hours of the court’s decision, Trump pledged to use a different law to impose a 10% tariff on all imports that would last 150 days, and to explore other ways to impose additional tariffs on countries he says engage in unfair trade practices.

    “Any boost to the economy from lowering tariffs in the near-term is likely to be partly offset by a prolonged period of uncertainty,” said Michael Pearce, an economist at Oxford Economics. “With the administration likely to rebuild tariffs through other, more durable, means, the overall tariffs rate may yet end up settling close to current levels.”

    Efforts to claw back the estimated $133 billion to $175 billion of previously collected tariffs now deemed illegal are bound to be complicated, and will likely favor larger companies with more resources. Consumers hoping for a refund are unlikely to be compensated.

    The fight against tariffs continues

    With Trump’s unyielding position on tariffs, many business are braced for years of court battles.

    Basic Fun, a Florida-based maker of toys such as Lincoln Logs and Tonka trucks, last week joined a slew of other businesses in a lawsuit seeking to claw back tariffs paid to the government.

    While company CEO Jay Foreman is concerned about any new tariffs Trump may impose, he doesn’t think they will affect toys. Still, he said, “I do worry about some type of perpetual fight over this, at least for the next three years.”

    The new 10% tariff Trump announced Friday immediately raised questions for Daniel Posner, the owner of Grapes The Wine Co., in White Plains, New York. Since wine shipments take about two weeks to cross the Atlantic, he wonders if a shipment arriving Monday will be affected.

    “We’re reactive to what’s become a very unstable situation,” Posner said.

    Ron Kurnik owns Superior Coffee Roasting Co. in Sault Ste. Marie, Michigan, across the border from Canada. In addition to U.S. tariffs, Kurnik faced retaliatory tariffs from Canada for much of last year when he exported his coffee.

    “It’s like a nightmare we just want to wake up from,” said Kurnik, whose company has raised prices by 6% twice since the tariffs went into effect. While he’s pleased with the Supreme Court’s ruling, he doesn’t think he will ever see a refund.

    Industries pine for more stability

    A wide array of industries, including retail, tech and the agricultural sector, used the Supreme Court ruling as an opportunity to remind Trump of how his trade policies have affected their businesses.

    The Business Roundtable, a group that lobbies on behalf of more than 200 U.S. companies, released a statement encouraging the administration to limit the focus of tariffs going forward to specific unfair trade practices and national security concerns.

    In the retail industry, stores of all stripes have embraced different ways to offset the effects of tariffs – from absorbing some of the costs themselves, to cutting expenses and diversifying their supply network. Still, they have had to pass on some price increases at a time when shoppers have been particularly sensitive to inflationary pressures.

    Dave French, executive vice president of government relations for The National Retail Federation, the nation’s largest retail industry trade group, said he hoped lower courts would ensure “a seamless process” to refund tariffs. That issue wasn’t addressed in Friday’s ruling.

    For the technology sector, Trump’s tariffs caused major headaches. Many of its products are either built overseas or depend on imports of key components. The Computer & Communications Industry Association, which represents a spectrum of technology companies employing more than 1.6 million people, expressed hope that the decision will ease the trade tensions.

    “With this decision behind us, we look forward to bringing more stability to trade policy,” said Jonathan McHale, the association’s vice president for digital trade.

    Farmers, who have been stung by higher prices for equipment and fertilizer since the tariffs went into effect, and reduced demand for their exports, also spoke out.

    “We strongly encourage the president to avoid using any other available authorities to impose tariffs on agricultural inputs that would further increase costs,” said American Farm Bureau Federation President Zippy Duvall.

    Industries that aren’t feeling any relief

    The Supreme Court ruled 6-3 that the International Emergency Economic Powers Act did not give the president authority to tax imports, a power that belongs to Congress. But the decision only affects tariffs imposed under that law, so some industries will see no relief at all.

    The decision leaves in effect tariffs on steel, upholstered furniture, kitchen cabinets and bathroom vanities, according to the Home Furnishings Association, which represents 15,000 furniture stores in North America.

    At Revolution Brewing in Chicago, the aluminum they use for cans costs as much as the ingredients that go inside them because of tariffs Trump has placed on metals that are not affected by the Supreme Court ruling. While the cans are made in Chicago, the aluminum comes from Canada, said Josh Deth, managing partner at the brewery.

    Tariffs have been just one challenge for his business, which is also affected by volatile barley prices and a slowdown in demand for craft beer.

    “Everything kind of adds up,” he said. “The beverage industry needs relief here. We’re getting crushed by the prices of aluminum.”

    Reaction overseas

    Italian winemakers hard-hit by the tariffs greeted the Supreme Court decision with skepticism, warning that the decision may just deepen uncertainty around trade with the U.S.

    The U.S. is Italy’s largest wine market, with sales having tripled in value over the past 20 years. New tariffs on the EU, which the Trump administration initially threatened would be 200%, had sent fear throughout the industry, which remained even after the U.S. reduced, delayed and negotiated down.

    “There is a more than likely risk that tariffs will be reimposed through alternative legal channels, compounded by the uncertainty this ruling may generate in commercial relations between Europe and the United States,” said Lamberto Frescobaldi, president of UIV, a trade association that represents more than 800 winemakers.

    Elsewhere in Europe, initial reaction focused on renewed upheaval and confusion regarding costs facing businesses exporting to the US.

    Trump’s tariffs could hit pharmaceuticals, chemicals and auto parts, said Carsten Brzeski, an economist at ING bank. “Europe should not be mistaken, this ruling will not bring relief,” he said. “The legal authority may be different, but the economic impact could be identical or worse.”

    ___

    Anne D’Innocenzio in New York; Dee-Ann Durbin in Detroit; Michael Liedtke in San Francisco; David McHugh in Frankfurt, Germany; Jonathan Matisse in Nashville, Tennessee; Adrian Sainz in Memphis, Tennessee; and Nicole Winfield in Rome contributed to this report.

    Copyright © 2026 by The Associated Press. All Rights Reserved.

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    AP

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  • Can states ban transgender athletes from school sports? Supreme Court takes up cases

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    The Supreme Court will hear two cases Tuesday that address whether state laws restricting transgender women and girls from participating in sports are constitutional. The first case involves 25-year-old Lindsay Hecox who transitioned from male to female and sued over Idaho’s ban to try out for the women’s track and cross country teams at Boise State University. She did not make either team and is no longer looking to do so, but competed in club-level soccer and running while she studied in Idaho. The second case centers around 15-year-old Becky Pepper-Jackson. She has been taking puberty-blocking medication, has identified as a girl since age 8, and was issued a West Virginia birth certificate recognizing her as female. Pepper-Jackson is the only transgender person who has attempted to compete in girls’ sports in West Virginia. The lower courts in both cases ruled in favor of the transgender athletes who challenged the state bans. More than two dozen Republican-led states, including Idaho and West Virginia, have enacted bans on transgender athletes from girls’ and women’s teams. Today, the mainly conservative justices are expected to focus on whether these sports bans violate the Constitution or Title IX, which prohibits sex discrimination in education. A decision in both cases is expected to be released by early summer. In the past year, the Supreme Court ruled in favor of state bans on gender-affirming care for transgender youth and allowed restrictions on transgender people to be enforced. Keep watching for the latest from the Washington News Bureau:

    WASHINGTON —

    The Supreme Court will hear two cases Tuesday that address whether state laws restricting transgender women and girls from participating in sports are constitutional.

    The first case involves 25-year-old Lindsay Hecox who transitioned from male to female and sued over Idaho’s ban to try out for the women’s track and cross country teams at Boise State University.

    She did not make either team and is no longer looking to do so, but competed in club-level soccer and running while she studied in Idaho.

    The second case centers around 15-year-old Becky Pepper-Jackson. She has been taking puberty-blocking medication, has identified as a girl since age 8, and was issued a West Virginia birth certificate recognizing her as female.

    Pepper-Jackson is the only transgender person who has attempted to compete in girls’ sports in West Virginia.

    The lower courts in both cases ruled in favor of the transgender athletes who challenged the state bans.

    More than two dozen Republican-led states, including Idaho and West Virginia, have enacted bans on transgender athletes from girls’ and women’s teams.

    Today, the mainly conservative justices are expected to focus on whether these sports bans violate the Constitution or Title IX, which prohibits sex discrimination in education.

    A decision in both cases is expected to be released by early summer.

    In the past year, the Supreme Court ruled in favor of state bans on gender-affirming care for transgender youth and allowed restrictions on transgender people to be enforced.

    Keep watching for the latest from the Washington News Bureau:


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  • Cheney to be honored during funeral at Washington National Cathedral

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    Past presidents and politicians of both parties will gather Thursday in Washington, D.C., for former Vice President Dick Cheney’s funeral.Neither President Donald Trump nor Vice President JD Vance were invited to Cheney’s funeral, according to a source familiar with the matter.Cheney will receive full military honors at the memorial service, which is expected to be a bipartisan who’s who of Washington dignitaries.More than 1,000 guests are expected at the invitation-only funeral Thursday morning at Washington’s National Cathedral — including all four living former vice presidents and two former presidents.Former Presidents George W. Bush and Joe Biden will pay their respects, along with former Vice Presidents Kamala Harris, Mike Pence, Al Gore and Dan Quayle. There are also expected to be a number of Supreme Court Justices, including Chief Justice John Roberts and Justices Brett Kavanaugh and Elena Kagan. A large number of past and present Cabinet members from both Republican and Democratic administrations will also attend, as well as congressional leaders from both sides of the aisle.Speaker Emerita Nancy Pelosi is expected to attend along with Senate Majority Leader John Thune and former leader Mitch McConnell.CNN has reached out to the White House for comment. Axios was first to report that Trump was not invited to the funeral.The funeral’s guest list itself is a nod to a time when Washington was not so polarized and politicians from both sides of the aisle paid their respects when a dignitary passed away.Cheney’s funeral will be held at 11 a.m. ET. Speakers will include Bush, Cheney’s daughter former Rep. Liz Cheney and some of his grandchildren.Cheney, who served as Bush’s vice president from 2001 to 2009, died on November 3 at the age of 84. Prior to being elected vice president, Cheney served as defense secretary, White House chief of staff and as a congressman representing Wyoming.He was considered one of the most powerful and influential vice presidents in history, but his role as the architect of the Iraq War saw him leave office deeply unpopular and cemented a polarizing legacy.While official Washington funerals usually include invites to the White House, excluding Trump should not be a surprise.Cheney was a lifetime hardline conservative who endorsed Trump’s 2016 campaign. But he spent the last years of his life speaking out against Trump, particularly after his daughter then-Rep. Liz Cheney drew the president’s ire for her prominent role in a congressional committee investigating the Jan. 6, 2021, insurrection at the Capitol.In 2022, Cheney described Trump as a coward and said no one was a “greater threat to our republic.”Trump has not publicly expressed his condolences or commented on Cheney’s death.The White House offered a muted reaction after Cheney’s death with press secretary Karoline Leavitt telling reporters that Trump was “aware” the former vice president had died and noting that flags had been lowered to half-staff.Honorary pallbearers at Cheney’s funeral will include members of his Secret Service detail; his former chiefs of staff, David Addington and Scooter Libby; and photographer David Hume Kennerly.On one of the last pages of the service leaflet is a quote from the writer and naturalist John Muir, saying: “The mountains are calling and I must go.”

    WASHINGTON —

    Past presidents and politicians of both parties will gather Thursday in Washington, D.C., for former Vice President Dick Cheney’s funeral.

    Neither President Donald Trump nor Vice President JD Vance were invited to Cheney’s funeral, according to a source familiar with the matter.

    Cheney will receive full military honors at the memorial service, which is expected to be a bipartisan who’s who of Washington dignitaries.

    More than 1,000 guests are expected at the invitation-only funeral Thursday morning at Washington’s National Cathedral — including all four living former vice presidents and two former presidents.

    Former Presidents George W. Bush and Joe Biden will pay their respects, along with former Vice Presidents Kamala Harris, Mike Pence, Al Gore and Dan Quayle. There are also expected to be a number of Supreme Court Justices, including Chief Justice John Roberts and Justices Brett Kavanaugh and Elena Kagan. A large number of past and present Cabinet members from both Republican and Democratic administrations will also attend, as well as congressional leaders from both sides of the aisle.

    Speaker Emerita Nancy Pelosi is expected to attend along with Senate Majority Leader John Thune and former leader Mitch McConnell.

    CNN has reached out to the White House for comment. Axios was first to report that Trump was not invited to the funeral.

    The funeral’s guest list itself is a nod to a time when Washington was not so polarized and politicians from both sides of the aisle paid their respects when a dignitary passed away.

    Cheney’s funeral will be held at 11 a.m. ET. Speakers will include Bush, Cheney’s daughter former Rep. Liz Cheney and some of his grandchildren.

    Cheney, who served as Bush’s vice president from 2001 to 2009, died on November 3 at the age of 84. Prior to being elected vice president, Cheney served as defense secretary, White House chief of staff and as a congressman representing Wyoming.

    He was considered one of the most powerful and influential vice presidents in history, but his role as the architect of the Iraq War saw him leave office deeply unpopular and cemented a polarizing legacy.

    While official Washington funerals usually include invites to the White House, excluding Trump should not be a surprise.

    Cheney was a lifetime hardline conservative who endorsed Trump’s 2016 campaign. But he spent the last years of his life speaking out against Trump, particularly after his daughter then-Rep. Liz Cheney drew the president’s ire for her prominent role in a congressional committee investigating the Jan. 6, 2021, insurrection at the Capitol.

    In 2022, Cheney described Trump as a coward and said no one was a “greater threat to our republic.”

    Trump has not publicly expressed his condolences or commented on Cheney’s death.

    The White House offered a muted reaction after Cheney’s death with press secretary Karoline Leavitt telling reporters that Trump was “aware” the former vice president had died and noting that flags had been lowered to half-staff.

    Honorary pallbearers at Cheney’s funeral will include members of his Secret Service detail; his former chiefs of staff, David Addington and Scooter Libby; and photographer David Hume Kennerly.

    On one of the last pages of the service leaflet is a quote from the writer and naturalist John Muir, saying: “The mountains are calling and I must go.”

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  • Trump asks Supreme Court to uphold restrictions he wants to impose on birthright citizenship

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    WASHINGTON — President Donald Trump ‘s administration is asking the Supreme Court to uphold his birthright citizenship order declaring that children born to parents who are in the United States illegally or temporarily are not American citizens.

    The appeal, shared with The Associated Press on Saturday, sets in motion a process at the high court that could lead to a definitive ruling from the justices by early summer on whether the citizenship restrictions are constitutional.

    Lower-court judges have so far blocked them from taking effect anywhere. The Republican administration is not asking the court to let the restrictions take effect before it rules.

    The Justice Department’s petition has been shared with lawyers for parties challenging the order, but is not yet docketed at the Supreme Court.

    Any decision on whether to take up the case probably is months away and arguments probably would not take place until the late winter or early spring.

    “The lower court’s decisions invalidated a policy of prime importance to the president and his administration in a manner that undermines our border security,” Solicitor General D. John Sauer wrote. “Those decisions confer, without lawful justification, the privilege of American citizenship on hundreds of thousands of unqualified people.”

    Cody Wofsy, an American Civil Liberties Union lawyer who represents children who would be affected by Trump’s restrictions, said the administration’s plan is plainly unconstitutional.

    “This executive order is illegal, full stop, and no amount of maneuvering from the administration is going to change that. We will continue to ensure that no baby’s citizenship is ever stripped away by this cruel and senseless order,” Wofsy said in an email.

    Trump signed an executive order on the first day of his second term in the White House that would upend more than 125 years of understanding that the Constitution’s 14th Amendment confers citizenship on everyone born on American soil, with narrow exceptions for the children of foreign diplomats and those born to a foreign occupying force.

    In a series of decisions, lower courts have struck down the executive order as unconstitutional, or likely so, even after a Supreme Court ruling in late June that limited judges’ use of nationwide injunctions.

    While the Supreme Court curbed the use of nationwide injunctions, it did not rule out other court orders that could have nationwide effects, including in class-action lawsuits and those brought by states. The justices did not decide at that time whether the underlying citizenship order is constitutional.

    But every lower court that has looked at the issue has concluded that Trump’s order violates or likely violates the 14th Amendment, which was intended to ensure that Black people, including former slaves, had citizenship.

    The administration is appealing two cases.

    The U.S. Court of Appeals for the 9th Circuit in San Francisco ruled in July that a group of states that sued over the order needed a nationwide injunction to prevent the problems that would be caused by birthright citizenship being in effect in some states and not others.

    Also in July, a federal judge in New Hampshire blocked the citizenship order in a class-action lawsuit including all children who would be affected.

    Birthright citizenship automatically makes anyone born in the United States an American citizen, including children born to mothers who are in the country illegally, under long-standing rules. The right was enshrined soon after the Civil War in the first sentence of the 14th Amendment.

    The administration has asserted that children of noncitizens are not “subject to the jurisdiction” of the United States and therefore not entitled to citizenship.

    Copyright © 2025 by The Associated Press. All Rights Reserved.

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  • Sonia Sotomayor Should Retire Now

    Sonia Sotomayor Should Retire Now

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    On Election Day in 2006, Justice Antonin Scalia was 70 years old and had been serving on the Supreme Court for 20 years. That year would have been an opportune time for him to retire—Republicans held the White House and the Senate, and they could have confirmed a young conservative justice who likely would have held the seat for decades to come. Instead, he tried to stay on the Court until the next time a Republican president would have a clear shot to nominate and confirm a conservative successor.

    He didn’t make it—he died unexpectedly in February 2016, at the age of 79, while Barack Obama was president. Conservatives nevertheless engineered some good fortune: There was divided control of government, and then–Senate Majority Leader Mitch McConnell refused to even hold confirmation hearings for Merrick Garland, Obama’s nominee to the seat. Donald Trump won that fall’s election and named Neil Gorsuch to the seat that McConnell had held open.

    But imagine for a moment that Hillary Clinton had won the 2016 election, as many expected. By running a few points stronger, she might have taken Democratic candidates across the finish line in close races in Pennsylvania and Missouri, resulting in Democratic control of the Senate. In that scenario, Clinton would have named a liberal successor to Scalia—more liberal than Garland—and conservatives would have lost control of the Court, all because of Scalia’s failure to retire at the opportune moment.

    Justice Sonia Sotomayor will turn 70 in June. If she retires this year, President Joe Biden will nominate a young and reliably liberal judge to replace her. Republicans do not control the Senate floor and cannot force the seat to be held open like they did when Scalia died. Confirmation of the new justice will be a slam dunk, and liberals will have successfully shored up one of their seats on the Court—playing the kind of defense that is smart and prudent when your only hope of controlling the Court again relies on both the timing of the death or retirement of conservative judges and not losing your grip on the three seats you already hold.

    But if Sotomayor does not retire this year, we don’t know when she will next be able to retire with a likely liberal replacement. It’s possible that Democrats will retain the presidency and the Senate in this year’s elections, in which case the insurance created by a Sotomayor retirement won’t have been necessary. But if Democrats lose the presidency or the Senate this fall—or both—she’ll need to stay on the bench until the party once again controls them. That could be just a few years, or it could be longer. Democrats have previously had to wait as long as 14 years (1995 to 2009). In other words, if Sotomayor doesn’t retire this year, she’ll be making a bet that she will remain fit to serve until possibly age 78 or even 82 or 84—and she’ll be forcing the whole Democratic Party to make that high-stakes bet with her.

    Steven Mazie: The Supreme Court justices do not seem to be getting along

    If Democrats lose the bet, the Court’s 6–3 conservative majority will turn into a 7–2 majority at some point within the next decade. If they win the bet, what do they win? They win the opportunity to read dissents written by Sotomayor instead of some other liberal justice. This is obviously an insane trade. Democrats talk a lot about the importance of the Court and the damage that has been done since it has swung in a more conservative direction, most obviously including the end of constitutional protections for abortion rights. So why aren’t Democrats demanding Sotomayor’s retirement?

    Well, they are whispering about it. Politico reported in January:

    Some Democrats close to the Biden administration and high-profile lawyers with past White House experience spoke to West Wing Playbook on condition of anonymity about their support for Sotomayor’s retirement. But none would go on the record about it. They worried that publicly calling for the first Latina justice to step down would appear gauche or insensitive. Privately, they say Sotomayor has provided an important liberal voice on the court, even as they concede that it would be smart for the party if she stepped down before the 2024 election.

    This is incredibly gutless. You’re worried about putting control of the Court completely out of reach for more than a generation, but because she is Latina, you can’t hurry along an official who’s putting your entire policy project at risk? If this is how the Democratic Party operates, it deserves to lose.

    The cowardice in speaking up about Sotomayor—a diabetic who has in some instances traveled with a medic—is part of a broader insanity in the way that the Democratic Party thinks about diversity and representation. Representation is supposed to be important because the presence of different sorts of people in positions of power helps ensure that the interests and preferences of various communities are taken into account when making policy. But in practice, Democratic Party actions regarding diversity tend to be taken for the benefit of officials rather than demographic groups. What’s more important for ordinary Latina women who support Democrats—that there not be one more vote against abortion rights on the Supreme Court, or that Sotomayor is personally there to write dissenting opinions? The answer is obvious, unless you work in Democratic politics for a living, in which case it apparently becomes a difficult call.

    I thought Democrats had learned a lesson from the Ruth Bader Ginsburg episode about the importance of playing defense on a Court where you don’t hold the majority. Building a cult of personality around one particular justice served to reinforce the idea that it was reasonable for her to stay on the bench far into old age, and her unfortunate choice to do so ultimately led to Amy Coney Barrett’s appointment and a string of conservative policy victories. All liberals have to show for this stubbornness is a bunch of dissents and kitsch home decor. In 2021, it seemed that liberals had indeed learned their lesson—not only was there a well-organized effort to hound the elderly Stephen Breyer out of office, but the effort was quite rude. (I’m not sure screaming “Retire, bitch” at Stephen Breyer was strictly necessary, but I wasn’t bothered by it either—he was a big boy, and he could take it.) But I guess maybe the lesson was learned only for instances where the justice in question is a white man.

    One obvious response to this argument is that the president is also old—much older, indeed, than Sonia Sotomayor. I am aware, and I consider this to be a serious problem. But Democrats are unlikely to find a way to replace Biden with a younger candidate who enhances their odds of winning the election. The Sotomayor situation is different. Her age problem can be dealt with very simply by her retiring and the president picking a candidate to replace her who is young and broadly acceptable (maybe even exciting) to Democratic Party insiders. And if Democrats want to increase the odds of getting there, they should be saying in public that she should step down. In order to do that, they’ll have to get over their fear of being called racist or sexist or ageist.

    This article was adapted from a post on Josh Barro’s Substack, Very Serious.

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    Josh Barro

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  • Four Lessons Republicans Must Learn Before 2024

    Four Lessons Republicans Must Learn Before 2024

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    The Republican Party swaggered into Tuesday’s midterm elections with full confidence that it would clobber President Joe Biden and his Democratic Party, capitalizing on voters’ concerns over inflation and the economy to retake majorities in both chambers of Congress. The question, party officials believed, was one only of scale: Would it be a red wave, or a red tsunami?

    The answer, it turns out, is neither.

    As of this morning, Republicans had yet to secure a majority in either the House or the Senate. Across the country, Democrats won races that many in the party expected to lose. Millions of votes are still to be counted, particularly in western states, but this much is clear: Even if Republicans eke out narrow congressional majorities, 2022 will be remembered as a triumph for Democrats, easily the best midterm cycle for an incumbent president’s party since 2002, when the country rallied around George W. Bush and his GOP in the aftermath of the September 11 terrorist attacks.

    Given the tailwinds they rode into Election Day—a fragile economic outlook, an unpopular president, a pervasive sense that our democracy is dysfunctional—Republicans spent yesterday trying to make sense of how things went so wrong. There was a particular focus on Michigan, Pennsylvania, and Wisconsin, three battleground states that went from red to blue on Election Day 2020, and states where Democrats won major victories on Tuesday.

    Based on my reporting throughout the year, as well as data from Tuesday’s exit polling and conversations with Republican officials in the immediate aftermath of Election Day, here are four lessons I believe the party must learn before the next election in 2024.

    1. Democratic turnout is going to boom in the post-Dobbs era.

    For 50 years, Republicans raged against the Supreme Court decision in Roe v. Wade that established a constitutional right to an abortion, arguing that the ruling should be struck down and abortion policies should be determined by individual states. When it finally happened—when Politico in early May published a leaked draft of the majority opinion in Dobbs v. Jackson Women’s Health Organization striking down Roe v. Wade—I warned the evangelical leader Russell Moore on his podcast that Republicans, and especially conservative Christians, were about to deal with some devastating unintended consequences.

    Up until the 2022 election, most voters had engaged with the abortion issue as an every-four-years, very-top-of-the-ticket decision. Presidents appoint Supreme Court justices, after all, and only a Supreme Court ruling could fundamentally change abortion policies in the country. (This was essential to Donald Trump’s victory in 2016: Nearly a quarter of his voters said the Supreme Court was their top issue in the election, after he’d promised to appoint “pro-life judges.”) Given that abortion rights were protected by Roe, the voters who identified abortion as their top priority always skewed Republican, and they were primarily mobilized by presidential campaigns and the prospect of Supreme Court vacancies.

    We have now entered a different political universe.

    More than a quarter of all voters named abortion as their top priority in this election. That number would be astonishing in any cycle, much less in a midterm campaign being waged against a backdrop of historic inflation and a looming recession. (The only issue of greater salience to voters overall—and not by much—was the economy, which 31 percent named as their top priority.) Even more surprising was the gap in partisan enthusiasm: Among the 27 percent of voters who prioritized abortion in this election, 76 percent supported Democratic candidates, according to exit polling, while just 23 percent backed Republicans.

    This is a direct result of the Dobbs ruling, which left individual states scrambling to figure out their own abortion regulations. With Republicans pushing a menu of restrictive measures across the nation, Democrats running for office at every level—Congress, state legislature, governor, attorney general—suddenly had ammunition to mobilize a party base that was, until that time, looking complacent. (When Republican Glenn Youngkin won the governor’s race in deep-blue Virginia last year, only 8 percent of voters named abortion as their top priority.) At the same time, Dobbs gave Democrats a tool to reach moderates and independents, particularly suburban women, who’d rejected the Republican Party in 2020 but were beginning to drift back toward the GOP because of concerns about inflation and crime.

    Democrats I spoke with throughout the summer and fall were hopeful that the abortion issue would be sufficient to prevent a Republican rout. It did that and much, much more. The Dobbs effect on this election is almost impossible to exaggerate. All five states that featured a ballot referendum on questions of abortion saw the pro-choice side win. (This includes Kentucky and Montana, states that President Joe Biden lost by 26 points and 16 points, respectively.) In those states alone, dozens of Democrats, from the top of the ballot to the bottom, received a potentially race-deciding boost from the abortion referendum. Even in the 45 states where abortion wasn’t literally on the ballot, it was clearly the issue that carried the day for a host of vulnerable Democrats.

    By every metric available—turnout, exit polling, individual races, and referendum results—abortion was the dominant motivator for Democrats, particularly younger Democrats, who have historically skipped midterm elections. It was also the dominant motivator for moderates and independents to stick with an unpopular president. The story of this election was that millions of voters who registered dissatisfaction with Biden and his economic policies voted for his party anyway. Why? Because they were more concerned about Republicans’ approach to abortion than Democrats’ approach to inflation.

    This is very bad news for the GOP. Democrats now have a blueprint for turning out the vote in a punishing political environment. In each of the two midterm elections under President Barack Obama, Democrats hemorrhaged congressional and state legislative seats because the party lacked a base-turnout mechanism—not to mention a persuasion tactic—to compensate for voters’ concerns over a sluggish economy. Politics is a copycat business. Now that Democrats have found a winning formula, you can expect to see entire field programs, messaging campaigns, microtargeting exercises, and ballot-initiative drives built around abortion access.

    A winning issue today is not necessarily a winning issue tomorrow. Abortion rights will rise and fall in terms of resonance, depending on the place, the party in control, and the policies that govern the issue locally. We’ve seen Democrats overplay their hand on abortion in the past, as in 2014, when Republicans flipped a U.S. Senate seat because the Democratic incumbent, Mark Udall, campaigned so myopically on abortion rights that even the liberal Denver Post editorial board ridiculed him as “Senator Uterus.” If Democrats rely too much on the issue—or, maybe the greater temptation, if they use their legislative power to advance abortion policies that are just as unpopular with moderates and independents as some of what Republicans campaigned on this cycle—their advantage could evaporate quickly.

    Still, the “Senator Uterus” episode came in the pre-Dobbs era, back when Americans still viewed the Supreme Court as the most immediate arbiter of abortion rights, and local candidates didn’t have nearly the reason (or incentive) to engage with the issue. This is now the post-Dobbs era. Voters who care about abortion are thinking less about Supreme Court justices and more about state legislators. The political advantage, at least for now, belongs to a Democratic Party that just weaponized the issue to turn out its base in a major and unexpected way.

    2. Bad candidates are an incurable (and fast-spreading) cancer.

    In Michigan, “Prop 3,” the ballot proposal enshrining abortion rights into the state constitution, drove enormous voter participation. Democrats were the clear beneficiary: They won all three statewide campaigns as well as the state’s most competitive congressional races. But Democrats did even more damage at the local level, ambushing Republicans in a number of off-the-radar local contests and winning back control of both state legislative chambers for the first time since 1983.

    But if you ask Republicans in the state, Prop 3 wasn’t the biggest contributor to the down-ballot massacre. Instead, they blame the terrible GOP candidates at the top of the ticket.

    Whereas Republicans in other states nominated one or perhaps even two far-right candidates to run in marquee statewide races, Michigan Republicans went for the trifecta. Tudor Dixon, the gubernatorial nominee, was a political novice who had made extreme statements about abortion and gun control in addition to casting doubts on Trump’s 2020 defeat. Matt DePerno, the nominee for attorney general, was best known for leading a crusade to investigate and overturn Biden’s 2020 victory in the state. Kristen Karamo, the nominee for secretary of state, was a like-minded conspiracy theorist who manifestly knew nothing about the way Michigan’s elections are administered, and even less about the other duties of the job she was seeking.

    “You just can’t ignore the question of candidate quality,” Jason Roe, who ran Republican Tom Barrett’s campaign against Elissa Slotkin, one of the nation’s premier congressional contests, in Michigan’s Seventh District, told me. “We had a fundraising disadvantage, we had Prop 3 to overcome, but candidate quality—that was our biggest headwind. Tom ran about seven points ahead of the statewide ticket. I’m not sure what else he’s supposed to do.”

    The same pattern was visible in different parts of the country. In Pennsylvania, Democrats seized back control of the state House chamber for the first time in more than a decade. How? Two words: Doug Mastriano.

    In the campaign to become Pennsylvania’s next governor—what was once expected to be one of the nation’s tightest races—Mastriano, the GOP nominee, proved particularly unpalatable. It wasn’t just Mehmet Oz, the Republican nominee for U.S. Senate in that state, who stayed away; most GOP state lawmakers, even those who shared some of Mastriano’s fringe worldview as it pertains to election legitimacy or Christian nationalism, kept their distance.

    But it hardly mattered. The smoldering crater left by Mastriano’s implosion (he trailed by nearly 14 points as of yesterday evening) swallowed up Republicans all around him. Not only did Democrats improbably win back control of the state House; they also won all three of the state’s contested congressional races.

    Time and again on Tuesday, bad candidates sabotaged both their own chances of victory and also the electoral prospects of their fellow partisans on the ticket. And for most of these bad candidates, a common quality stood out: their views on the legitimacy of our elections.

    3. Voters prefer “out of touch”  to “out of their mind.”

    For Republicans, a central charge against Democrats throughout 2022 has been that Biden and his party are out of touch with ordinary Americans. A distilled version of the argument went like this: Democrats, the party of social and cultural elites, can’t relate to the economic pain being felt by millions of working people.

    That message penetrated—to a point.

    According to exit polls, 20 percent of voters said inflation has caused their families “severe hardship” over the past year. Among those respondents, 71 percent supported Republicans, and 28 percent supported Democrats. This is broadly consistent with other findings in the exit polling, as well as public-opinion research we saw throughout the summer and fall, showing disapproval of Biden and his stewardship of the economy. This would seem damning for Democrats—that is, until you consider the numbers in reverse and ask the obvious question: Why did three in 10 people who said they’ve experienced “severe hardship” decide to vote for the party that controls Congress and the White House?

    The simplest explanation is that although many of these voters think Democrats are out of touch, they also think Republicans are out of their minds. And it seems they prefer the former to the latter.

    “This is what I would see in our focus groups all summer, and it makes more sense now in retrospect,” says Sarah Longwell, a Republican strategist who produced a podcast series this year narrating her sessions with undecided voters. “We would have these swing voters who would say things are going bad: inflation, crime, Biden’s doing a bad job, all of it. And then you say, ‘Okay, Gretchen Whitmer versus Tudor Dixon. Who are you voting for?’ And even though they’re pissed at Whitmer—she hasn’t fixed the roads, she did a bad job with COVID—they were voting for her. Because they all thought Dixon was crazy.”

    It was the same thing, Longwell told me, in her focus groups all over the country—but particularly in the Midwest. She said that Tony Evers, the Democratic governor of Wisconsin, kept getting the same benefit of the doubt as Whitmer: “They didn’t like a lot of his policies, but they thought Tim Michels”—his Republican challenger—“was an extremist, a Trumplike extremist.” Her conclusion: “A lot of these people wanted to vote for a Republican; they just didn’t want to vote for the individual Republican who was running.”

    For many voters, the one position that rendered a candidate unacceptable was the continued crusade against our elections system. In Pennsylvania, for instance, 34 percent of voters supported Democrats despite experiencing “severe hardship,” significantly higher than the national average. The reason: 57 percent of Pennsylvanians said they did not “trust” Mastriano to oversee the state’s elections.

    Another strategy Republicans used to portray Democrats as “out of touch” was to focus on rising crime rates in Democratic-governed cities and states. This was an unqualified success: Exit polling, both nationally and in key states, showed that clear majorities of voters believe Republicans are better suited to handle crime. In Michigan, 53 percent of voters said they trusted Dixon to deal with crime, as opposed to just 42 percent for Whitmer. But it barely made a difference in the outcome: Despite trailing by 11 points on that question, Whitmer actually won the race by 11 points. To understand why, consider that 56 percent of Michigan voters characterized Dixon as “too extreme.” Only 38 percent said the same about Whitmer.

    In the exit polls, perhaps the most provocative question was about society’s changing values relative to gender identity and sexual orientation. Half of all voters—exactly 50 percent—said those values are changing for the worse. Only 26 percent, meanwhile, said those values are changing for the better. (The remaining 24 percent did not have a strong opinion either way.) This is another data point to suggest that Democrats, by championing an ultraprogressive approach to LGBTQ issues, come across as out of touch to many Americans. And yet, even among the voters who expressed alarm over America’s values in this context, 20 percent voted for Democrats. This is a revelation: Given the ferocity of rhetoric in this campaign about drag shows, transgender athletes, and sexualized public-school curricula, one might have predicted virtually zero people would both decry the LGBTQ agenda and vote Democratic. But two in 10 voters—more than enough to tip any close election—did exactly that. Why?

    Again, the simplest explanation is probably best: Plenty of voters are worried about unchecked progressivism on the left, but they’re even more worried about unchecked extremism on the right.

    That extremism takes many forms: delegitimizing our elections system, endorsing the January 6 assault on the Capitol, cracking jokes and spreading lies about the assault on House Speaker Nancy Pelosi’s husband. And all of this extremism, which so many swing voters spurned on Tuesday, is embodied by one person: Donald Trump.

    4. Trumpism is toxic to the middle of the electorate.

    Here’s the scenario many of us were expecting on Election Day: The president, still the titular head of his party despite a growing chorus of questions about his age and competence, suffers a series of humiliating defeats that reflect the weakness of his personal brand and cast doubt on his ability to lead the party moving forward.

    And that’s precisely what happened—to the former president.

    If Tuesday felt strange—“the craziest Election Night I’ve ever seen,” as the elections-analyst Dave Wasserman tweeted—it’s because so many races revolved around someone who wasn’t running for anything. The reason that practically every first-term president in modern history has gotten pummeled in the midterms is that the opposition party typically cedes the stage and makes it all about him. The idea is to force the party in power to own everything that’s unsatisfactory about the country—its economic performance, military failures, policy misfires. It’s a time-honored tradition: Make the election a referendum on the new guy in charge.

    Until now.

    In each of the three states that saw major Democratic victories—Michigan, Pennsylvania, and Wisconsin—25 to 30 percent of voters said they had cast their vote in opposition to Trump. To reiterate: This is a quarter of the total electorate, consistently across three of the nation’s most polarized battleground states, acknowledging that they were motivated by the idea of defeating someone who wasn’t on the ballot, and who currently holds no office. It’s easy to see why they succeeded: In these states, as well as nationally, the only thing worse than Biden’s approval rating was Trump’s. In state after state, congressional district after congressional district, voters rejected the Trump-approved candidate, for many of the same reasons they rejected Trump himself two years ago.

    Looking to 2024, GOP leaders will attempt to address the missed opportunities of this election. They will, no doubt, redouble their efforts to recruit strong candidates for statewide races; they will prioritize proven winners with mainstream views on abortion and democratic norms and the other issues by which moderates and independents will assess them. Whatever success party officials might find on a case-by-case basis, they will be treating the symptoms and ignoring the sickness. The manifest reality is that Trumpism has become toxic—not just to the Never Trumpers or the RINOs or the members of the Resistance, but to the immense, restless middle of the American electorate.

    We’ve long known that Trumpism without Trump doesn’t really sell; the man himself has proved far more compelling, and far more competitive, than any of his MAGA imitators. But what we saw Tuesday wasn’t voters selectively declining certain decaffeinated versions of Trump; it was voters actively (and perhaps universally, pending the result in Arizona’s gubernatorial race) repudiating the core elements of Trump’s political being.

    This trouncing, on its own, might have done little to loosen Trump’s chokehold on American conservatism. But because it coincided with Florida Governor Ron DeSantis’s virtuoso performance—winning reelection by an astonishing 1.5 million votes; carrying by double digits Miami-Dade County, which Hillary Clinton won by 30 points; defeating his Democratic opponent by nearly 20 points statewide—there is reason to believe, for the first time in six and a half years, that the Republican Party does not belong to Donald Trump.

    “I’ll tell you why Tuesday was a bad night for Trump: Ron DeSantis now has 100 percent name ID with the Republican base. Every single Republican voter in the country knows who he is now,” says Jeff Roe, who managed Ted Cruz’s 2016 campaign and runs the nation’s largest political-consulting firm. “A lot of these people are gonna say, ‘All these other Republicans lost. This is the only guy that can win.’ That’s really bad for Trump. Republicans haven’t had a choice in a long time. Now they have a choice.”

    Trump’s intraparty critics have long complained that his brutally effective takeover of the GOP obscures his win-loss record. This is someone, after all, who earned the 2016 nomination by securing a string of plurality victories against a huge and fragmented field; who lost the popular vote to Hillary Clinton by nearly 3 million; who gave away the House in 2018 and the Senate in 2020; who lost the popular vote to Biden by 7 million and handed over the White House; and who just sabotaged the party’s chances of winning key contests in a number of battleground states.

    Earlier this week, Trump pushed back the expected launch of his 2024 presidential campaign. This was done, in part, so that he could appropriate the narrative of a grand Republican victory against Biden and the Democrats. Given his humiliating defeats, and how they’re being juxtaposed against the victories of his emerging young rival from Florida, Trump might want to move the announcement back up before a very different narrative begins to take hold.

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    Tim Alberta

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