Ian Millhiser Archive

The state of Michigan does not hold free and fair legislative elections. In 2018, Democratic state house and senate candidates received tens of thousands more votes than their Republican counterparts. Yet Republicans have solid majorities in both houses.

Meanwhile, the state’s congressional districts are so aggressively gerrymandered that, in 2012, when President Obama won the state by over nine points, Republicans still captured nine of Michigan’s 14 U.S. House seats.

All of this is supposed to change, however, and soon. In 2018, voters approved a state constitutional amendment providing that future legislative maps will be drawn by an independent commission. The members of this commission are chosen largely at random from a pool of applicants, in order to minimize either party’s ability to capture the commission. People who recently served as partisan officials, party leaders, lobbyists, or other forms of political insiders may not serve on this commission.

That is, of course, unless the Republican Party gets its way in a lawsuit filed on Tuesday. The case is Daunt v. Benson.

Ignoring corruption

Daunt rests on two interlocking arguments. The first is novel but all-too-plausible in a world where cases like Citizens United v. FEC prevent election laws intended to fight corruption, except in truly egregious cases. The second argument, however, is both extraordinarily aggressive and reminiscent of the argument a Republican federal judge in Texas recently used to order the entire Affordable Care Act repealed.

Senator and presidential candidate Elizabeth Warren (D-MA) released a “plan to strengthen our democracy” on Tuesday.

Much of Warren’s plan tracks the For the People Act of 2019, the legislation commonly referred to as “H.R. 1,” which House Democrats passed last March. What sets Warren’s plan apart is the sophisticated mechanisms she uses to insulate voting reforms from state officials hostile to voting rights.

Warren’s plan is not a perfect solution to the problem of anti-democratic state officials, and, like nearly all laws, it is defenseless against a rogue Supreme Court that is determined to give an electoral advantage to Republicans. Nevertheless, it’s a thoughtful effort at least, to mitigate red states’ ability to sabotage pro-democratic reforms.

The Warren plan includes many of the same reforms included in H.R. 1, a bill which represents the consensus among congressional Democrats and voting rights groups. Like H.R. 1, Warren pushes for enhanced election security, automatic voter registration, early voting at least 15 days before the election, and independent redistricting commissions to thwart gerrymandering, among other things.

Yet, what makes Warren’s plan interesting is the safeguards she layers onto H.R. 1 in order to work around a constitutional quirk that limits Congress’ power to regulate elections.

The Constitution permits states to determine the “times, places and manner of holding elections for Senators and Representatives,” but it also permits Congress to “at any time by law make or alter such regulations, except as to the places of choosing Senators.” Thus, for congressional elections, Congress has virtually unlimited power to tell states how to run elections, so long as Congress does not violate some other provision of the Constitution.

Let’s talk about a few datapoints that, on the surface, have nothing to do with the Supreme Court — but that in reality could determine whose ox is gored by two upcoming partisan gerrymandering decisions.

The first is a recent Ipsos poll showing that President Donald Trump only receives between 36 and 38 percent of the vote against any of the Democrats named in that poll. Against former Vice President Joe Biden, the current frontrunner in the Democratic primary, Trump loses 50-36. And, while the Ipsos poll shows Trump performing worse than some others, the Real Clear Politics polling average shows Biden winning by more than eight points.

Meanwhile, 3-month U.S. Treasury bonds recently started producing a higher yield than 10-year bonds. This phenomenon, known as a “yield curve inversion,” occurs when investors believe that the economy’s long term prospects bode ill, and so are willing to accept a lower rate of return for one of the safest investments on the planet — a long-term U.S. government bond.

Yield curve inversions are often harbingers of recession.

Trump, in other words, could have to campaign with no major policy accomplishments besides a tax giveaway to the very rich, and he may need to do so while the economy is falling apart. Meanwhile, polls already suggest he’s an underdog, even with a fairly strong economy at the moment.

Which brings us back to Rucho v. Common Cause and Lamone v. Benisek, the two Supreme Court cases challenging partisan gerrymandering.

Hit by a wave

The thing about gerrymandering is that, barring a well-timed electoral wave, it tends to perpetuate itself. Virginia’s House of Delegates is so rigidly gerrymandered to benefit Republicans that Democratic candidates won the statewide popular vote by more than 9 percentage points in 2017, yet Republicans kept a narrow majority in the statehouse. In Wisconsin, Democratic candidates won 54% of the popular vote in the 2018 state assembly races, yet Republicans control an astounding 63% of the assembly seats.

Thus, unless Democrats win the states of Virginia and Wisconsin in a crushing tidal wave that washes Republicans into the sea, the GOP will likely control the Virginia House of Delegates and the Wisconsin state assembly in 2020, when new maps must be drawn.

But early polling data suggests that such a wave is possible in 2020, as under-performing presidential candidates tend to drag down their entire party. And if 2020 is a recession year, a Democratic wave might be inevitable.

The Supreme Court held on Monday that antitrust plaintiffs may sue Apple for allegedly using its monopoly over iPhone app sales to jack up prices. The decision itself is a minor one, as it largely turns on who is allowed to sue the tech giant for its alleged antitrust violations, not whether Apple broke the law.

Nevertheless, Apple Inc. v. Pepper is significant for an unexpected reason. It is the first case where Trump judge Brett Kavanaugh crossed over to vote with his four liberal colleagues in a 5-4 decision.

The iPhone’s app store, as Kavanaugh notes in his opinion, “is the only place where iPhone owners may lawfully buy apps” for their phone. Apple permits developers to set the prices of these apps, but it also takes a 30% commission on all app sales, regardless of what price the developer sets.

The theory of the plaintiffs’ case is that, were iPhone apps sold in a competitive market with multiple sellers, Apple would have to lower its 30% commission in order to compete with those other sellers. Thus, Apple effectively uses its monopoly on app sales to drive up prices and jack up its own profits.

So it’s a fairly straightforward antitrust case, but there is one hitch. More than four decades ago, in Illinois Brick Co. v. Illinois, the Supreme Court held that only “direct purchasers” may bring antitrust suits against an alleged monopolist.

Illinois Brick involved an alleged price-fixing scheme by a brick company that sold those bricks to masonry contractors, who in turn sold pre-assembled structures to general contractors, who in turn sold construction services to the state of Illinois. Illinois sued the brick company, alleging that it paid higher construction costs because of the price fixing scheme. The Supreme Court held that Illinois could not sue the brick company because, in Kavanaugh’s words, “the State had not purchased concrete blocks directly from Illinois Brick.”

But, as Kavanaugh explains in his Apple opinion, this more recent case is not Illinois Brick. That is, Apple is not a case where a company sold a product to a contractor, who sold it to another contractor, who sold it to an antitrust plaintiff. Apple is a case where a tech company sold a product directly to consumers. Thus, under Illinois Brick, Apple may be sued by those consumers.

Indeed, Apple is such a straightforward case that the most surprising aspect of Monday’s decision is that it produced a dissent — much less a four person dissent. Had Apple prevailed, that decision could have had negative consequences for consumers. As Kavanaugh explains, “Apple’s theory would provide a roadmap for monopolistic retailers to structure transactions with manufacturers or suppliers so as to evade antitrust claims by consumers and thereby thwart effective antitrust enforcement.”

Nevertheless, the most important question arising from Apple is what we should make of Kavanaugh’s apostasy. As I wrote last January, Kavanaugh is not Neil Gorsuch — the nihilist conservative that President Donald Trump placed on the Supreme Court after Senate Republicans held a seat on that court open for more than a year. While Gorsuch embraces “a will-to-power approach to judging” which demands that he seize as much power as he can, and as fast as he can, Kavanaugh and Chief Justice John Roberts “appear to prefer a slower, more incremental approach.”

Last week, the Trump administration asked a federal appeals court to repeal the Affordable Care Act in its entirety. Their argument is fundamentally flawed in numerous ways, not the least of which is the fact that it relies on a dissenting opinion that is explicitly at odds with a binding decision by the Supreme Court’s majority.

On Wednesday, a handful of conservative groups weighed in with amicus briefs supporting this attack on Obamacare. They include an organization founded by failed U.S. Senate candidate Roy Moore (R), Citizens United (yes, that Citizens United), a very short brief authored by one of Trump’s personal lawyers, and two anti-vaxxer groups.

The case is Texas v. United States.

Last month, a very different mix of groups filed briefs urging the court not to repeal Obamacare. That, much longer list of organizations, includes many of the major players in health care — such as the American Medical Association, the American Academy of Pediatrics, the American Hospital Association, the Catholic Health Association of the United States, the American Cancer Society, the American Heart Association, AARP, the Blue Cross Blue Shield Association, and a number of economists and legal scholars.

An opinion handed down Wednesday by three Republican judges could chill the First Amendment rights of protesters — and potentially allow police to shut down political movements by filing lawsuits harassing movement leaders.

The United States Court of Appeals for the Fifth Circuit’s decision in Doe v. McKesson effectively strips First Amendment protections from protest leaders who commit minor offenses, ignoring longstanding Supreme Court precedents in the process.

The “Doe” in Doe v. McKesson is an anonymous police officer who was allegedly injured by an unknown protester who is not DeRay McKesson. McKesson is a prominent racial justice advocate closely associated with the Black Lives Matter movement who, according to Doe’s complaint, helped organize a protest near the Baton Rouge Police Department building.

Doe alleges that the unknown person — who, again, is not DeRay McKesson — “picked up a piece of concrete or similar rock like substance and hurled [it] into the police” that were arresting protesters. Officer Doe claims he was hit by the rock and suffered serious injuries. If true, this rock-thrower’s actions are reprehensible, and whoever threw the rock belongs in prison.

Last December, a Republican judge named Reed O’Connor handed down an opinion purporting to strike down the entire Affordable Care Act. The case, Texas v. United States, was brought by several Republican officials who manipulated the process used to assign judges to cases in order to get this case into O’Connor’s courtroom.

O’Connor, a former Republican Capitol Hill staffer, has a history of striking down policies supported by Democrats on highly dubious grounds. His opinion in Texas was no exception.

Nevertheless, on Monday evening, the Trump administration filed a brief letter in the conservative United States Court of Appeals for the Fifth Circuit informing the appeals court that it agrees with O’Connor’s opinion and will file a brief asking the court to repeal Obamacare in its entirety.

As a general rule, the Justice Department has a duty to defend any federal statute challenged in court, regardless of whether the incumbent administration agrees with that statute. The Justice Department will disregard this duty in rare cases, such as when no reasonable arguments can be made in favor of a law. But, in this case, no reasonable argument can be made in favor of O’Connor’s position.

As originally enacted, the Affordable Care Act required most Americans to either carry health insurance or pay slightly higher income taxes. In the 2017 Trump tax law, Congress effectively repealed this requirement by zeroing out the tax penalty for not having insurance.

The premise of O’Connor’s Texas opinion is that, when Congress repealed this one provision of the law, it rendered the rest of Obamacare invalid. O’Connor’s logic is convoluted, but it rests upon two points.

Somewhere, in an alternative universe where the winner of the 2016 presidential election lives in the White House, partisan gerrymandering is unconstitutional. Justice Merrick Garland provided the key fifth vote in Gill v. Whitford to strike down the Wisconsin Republican Party’s aggressive effort to immunize itself from elections. Lower courts are busy dismantling gerrymanders in states like North Carolina, Ohio, and Maryland. And in 2018, Wisconsin held its first competitive state assembly elections in years.

Meanwhile, here in this universe, the picture is much more grim. In 2018, Democratic Wisconsin state assembly candidates won 54 percent of the two-party popular vote, beating their Republican counterparts by 8 percentage points. Yet Republicans won 63 of the state’s 99 assembly seats.

With Republicans in firm control of the Supreme Court in 2018, the high court decided not to decide Gill, leaving Wisconsin’s gerrymander in place. Then Republicans gained an even tighter grip on the Supreme Court when Justice Anthony Kennedy — the court’s occasional swing vote and the only member of its Republican majority who appeared open to striking down partisan gerrymandering — left the bench.

All of which is a long way of saying that the outcomes in Rucho v. Common Cause and Lamone v. Benisek, two partisan gerrymandering cases that the Supreme Court will hear next Tuesday, are practically preordained. The Court will almost certainly vote 5-4 to hold that such gerrymanders cannot be dismantled by federal courts. Republicans will keep the profound advantages they gained in 2010, thanks to the coincidence of the fact that the GOP had a strong electoral year immediately before a redistricting cycle. States like Wisconsin will remain sham democracies.

Virginia has not held a democratic election for its House of Delegates for many years — though unless the Supreme Court intervenes in a case known as Virginia House of Delegates v. Bethune-Hill, that’s about to change.

To be sure, the commonwealth goes through the motions of permitting its citizens to cast ballots and then counting those ballots every two years. But Virginia’s gerrymandered maps preordain Republican control of the state house. In 2013, Republicans won a 67-33 supermajority in the House of Delegates, despite the fact that Democrats swept Virginia’s statewide races in the very same election. After the 2017 elections, the GOP majority shrunk to 51-49 — but that’s after Democrats won the statewide popular vote by more than nine points.

Last January, a federal court ordered enough of the state house maps redrawn to give Democrats a very good shot of gaining a majority in the 2019 elections. The fate of this court’s decision that Virginia’s legislatively drawn maps constituted an illegal racial gerrymander is now before the Supreme Court — which will hear oral arguments next Monday.

Ordinarily, the Roberts Court is where voting rights go to die. Just last term, in Abbott v. Perez, the Supreme Court effectively held that white Republicans enjoy such an extraordinarily strong presumption of racial innocence that it is virtually impossible for voting rights plaintiffs to prevail when they accuse lawmakers of drawing district lines with racist intent. And that was before Justice Anthony Kennedy allowed President Donald Trump to choose his successor.

The Trump administration’s ongoing efforts to weaken or dismantle climate efforts would increase CO2 emissions by more than 200 million tons annually, taking a severe toll on public health, according to a new report released Tuesday by the nonpartisan State Energy & Environmental Impact Center at New York University’s (NYU) law school.

Sectors responsible for nearly half of all U.S. greenhouse gas emissions are benefiting from rollbacks and weakened regulations at the expense of U.S. residents, according to the report. But state attorneys general across the country have played a key role in countering the the president’s quest to repeal or weaken several key environmental regulations.

“Donald Trump ran for president saying he was going to be a change agent and unfortunately he has. He has become an agent of climate change,” said Maryland Attorney General Brian Frosh during a Tuesday press conference to discuss the report and long-term impacts of the Trump administration’s environmental rollbacks.

“He has targeted fossil fuels not to decrease their emissions or their threat to society but to increase their emissions — it’s extraordinarily dangerous.”

If you have a cell phone, a credit card, or even if you just have a job, there’s a very good chance that you’ve been forced to sign away your right to sue your cell phone company, bank, or boss. Indeed, under the Supreme Court’s forced arbitration cases, your boss may order you to sign away your rights under penalty of termination.

On Thursday, Rep. Hank Johnson (D-GA) and Sen. Richard Blumenthal (D-CT) introduced legislation called the Forced Arbitration Injustice Repeal (FAIR) Act, which seeks to eliminate many forms of forced arbitration. Though versions of this bill have kicked around Congress for more than a decade — often under the name “Arbitration Fairness Act” — the FAIR Act stands out because of the broad coalition of lawmakers who now support it.

The House version of the legislation has 147 cosponsors, while 34 senators cosponsored their version of the FAIR Act.

Nearly a century ago, Congress passed the Federal Arbitration Act to, in Justice Ruth Bader Ginsburg’s words, allow “merchants with relatively equal bargaining power” to agree to resolve disputes through private arbitration — rather than through potentially more expensive litigation. In recent decades, however, the Supreme Court expanded the Arbitration Act — often ignoring the act’s explicit text in the process — to allow businesses to force workers and consumers into arbitration agreements, often stripping them of their ability to effectively sue the enterprise.

The Arbitration Act, for example, exempts “workers engaged in foreign or interstate commerce.” Nevertheless, in Circuit City v. Adams, the Supreme Court held that workers engaged in foreign or interstate commerce could be forced into arbitration. Similarly, the Arbitration Act says nothing whatsoever about class action lawsuits. Nevertheless, in AT&T Mobility v. Concepcion, the Supreme Court held that companies may add language to forced arbitration agreements that immunize the company from class actions.

The consequences of these decisions are severe. According to the Economic Policy Institute, workers and consumers are significantly less likely to prevail before an arbitrator than before a real judge, and they are awarded significantly less money when they do prevail.

A perennial problem in gerrymandering cases is that, even when an illegal map is eventually struck down by the courts, the state will often administer one or more elections using the deficient map before the courts can intervene.

That effectively means illegally elected lawmakers will make new laws — sometimes for years. It also means partisans have little incentive not to gerrymander, because their illegal maps are likely to be in effect for at least one election.

On Friday, a North Carolina state court offered a radical and creative solution to this problem, invalidating two state constitutional amendments that were proposed by an illegally gerrymandered legislature after the state’s legislative maps were invalidated — but before a new election could remove lawmakers in gerrymandered seats from office.

The case is North Carolina State Conference of the NAACP v. Moore.

Under the North Carolina Constitution, the state legislature may propose constitutional amendments with a 3/5s supermajority vote in both chambers. Such proposed amendments must then be ratified by a majority of the voters.

In June of 2018, about a year after the Supreme Court affirmed a lower court decision striking down many of North Carolina’s legislative districts as unconstitutional racial gerrymanders, state lawmakers proposed six amendments to the state’s constitution. Two of these amendments, a cap on income taxation and a voter ID requirement, were later ratified by voters.

Let’s start this column off with a bold assertion. Paying lawmakers good salaries is one of our country’s most important progressive reforms because it means that they don’t have to be wealthy to serve. High congressional pay is a safeguard against corruption, not a sign of it.

Bear this assertion in mind as you consider this proposal.

This morning I co-sponsored a bill to end congressional pensions with @SenatorBraun.

Americans shouldn't have to foot the bill for generous salaries and pensions for members of Congress, and I’m proud to be working on common sense solutions to make DC work for all families. https://t.co/MIejXxcT7W

— Rick Scott (@SenRickScott) February 12, 2019

Scott’s net worth was $232.6 million at the end of 2017 — not bad for a man who led a company that paid $1.7 billion in fines for widespread Medicare and Medicaid fraud. His co-sponsor, Sen. Mike Braun (R-IN), is worth between $35 million and $96 million, according to his campaign disclosure forms. So Scott and Braun can afford to forego their pensions — or their entire salary, if they choose.

Yet, if elected officials do not receive what Scott dismisses as “generous salaries and pensions,” that will discourage people who do not have Scott or Braun’s vast wealth from running for office. As future President John Adams once warned, if “you make it law that no man should hold an office who had not a private income sufficient for the subsistence and prospects of himself and family,” then “all offices would be monopolized by the rich, the poor and the middling ranks would be excluded, and an aristocratic despotism would immediately follow.”

The question of whether to pay lawmakers was hotly contested by the framers — as historian Gordon Wood writes, the ultimate decision to do so “was radical for the age.” Many prominent early Americans subscribed to what Wood labels the “classical republican” view, which saw public service as a burden that should be carried without remuneration.

“In a virtuous government,” Thomas Jefferson claimed, “public offices are, what they should be, burthens to those appointed to them, which it would be wrong to decline, though foreseen to bring with them intense labor, and great private loss.”

Jefferson, of course, was a wealthy slave owner.

President Donald Trump did not mention the 35-day shutdown that he began last December in his State of the Union Address on Tuesday, preferring instead to wax poetic about unity and cooperation. The next morning, however, Vice President Mike Pence suggested Trump would welcome another shutdown unless Democrats give in to the White House’s demands.

In an appearance on CBS News Wednesday morning, Pence repeated White House talking points about criminal gangs and “narcotics” that are allegedly streaming across the border. In reality, undocumented immigrants are less than half as likely to commit a crime in the United States as native-born Americans. And, while illegal drugs do sometimes cross America’s southern border, Trump’s proposed solution — a border wall — would not address this problem.

As ThinkProgress previously reported, “cocaine seizures on U.S. borders . . . regularly measure in tons, making it impractical to have individual migrants ferry it across.” For this reason, “dealers prefer to smuggle drugs into the country via legal ports of entry, which allow them to bring in high-value substances that are more easily hidden.”

Nevertheless, Pence used his appearance on CBS to issue a thinly veiled threat to Democrats — give Trump what he wants, or federal workers and their families will pay the price.

Trump “has laid out a plan,” Pence said, which includes “a steel barrier,” “additional detection technology,” and more border guards. “All of that is exactly what the American people want us to do,” Pence falsely claimed, before delivering his threat.

Speaker Nancy Pelosi told reporters on Friday that she supports permanent legislation to ensure that government shutdowns never happen again. Broadly speaking, Pelosi wants legislation providing that “any appropriations bill that does not get agreed upon within a timely fashion by the date, you automatically go into a CR” — a “continuing resolution” that maintains current spending levels.

Basically, Pelosi would replace the current default rule — that government funding is zeroed out in the absence of a law appropriating money — with a new rule that government funding remains constant until it is explicitly changed by Congress. Done right, this proposal could eliminate the shutdown as a tactic rogue elected officials can use to extort concessions from the opposing party. Done poorly, however, such legislation could make matters worse.

There is, however, a clear way to ensure that shutdowns never happen again. Current law allows the Republican Party to take federal workers hostage whenever they want to enact policy that Democrats oppose. A new law could change this power dynamic, effectively forcing Republicans to choose between funding the government and imposing higher taxes on their wealthiest donors.

The problem of inflation

There’s a fairly simple reason why legislation that simply continues existing funding levels during a budget dispute is a bad idea.

The Supreme Court sided with a worker over a corporation in a case involving the Federal Arbitration Act on Tuesday. For those unfamiliar with the Court’s arbitration decisions, that happens about as often as a unicorn wins the Powerball lottery while simultaneously being struck by lightning.

And, as further evidence that Beelzebub awoke this morning to discover thick layer of snow on his lawn, the Supreme Court’s decision in New Prime v. Oliveira was written by Neil Gorsuch — the author of a decision holding that the Arbitration Act permits employers to engage in small-scale wage theft with impunity.

As Slate’s Mark Joseph Stern writes, New Prime “marks the triumph of the Gorsuch brief—a highly technical argument designed to nab the justice’s vote by fixating on the text of a statute and its meaning at the time of passage.” But it is also a hollow triumph. New Prime is an important case because it is one of a few rare examples where this Supreme Court read the Arbitration Act consistently with its explicit text, but it also dealt with a fairly minor issue that carves out a narrow exception to the Court’s decisions enabling wage theft.

In Epic Systems v. Lewis, a much more significant wage theft decision that Gorsuch penned last year, Gorsuch blithely ignored the text of the Arbitration Act — while simultaneously holding that his atextual reading of the Arbitration Act trumps the explicit language of a law enacted to protect workers’ collective action.

The United States is a bizarre nation. Our government is shut down today because our entire system of government is poorly designed. And it is poorly designed in a way that many of our peer nations had the good sense not to emulate.

Our Constitution contains no safeguard — or, at least, no meaningful safeguard — against a rogue president who refuses to fund his own government in order to extort Congress into passing an unpopular policy into law. Sure, the Constitution allows supermajorities of both houses to override Donald Trump’s veto — as well as permitting a supermajority of the Senate to remove Trump from office altogether — but neither one of these things are happening.

In one of the worst predictions in our nation’s history, James Madison wrote that our “well constructed Union” would have a “tendency to break and control the violence of faction.” The framers were adamantly opposed to political parties — John Adams wrote that “there is nothing I dread So much, as a Division of the Republick into two great Parties.” They were of the belief that the system of government they’d built would thwart their rise. And they were hilariously, disastrously wrong.

And so the mechanisms the Founding Fathers devised to control a rogue president depend upon many members of that president’s own party turning against him. That’s a rare occurrence in any nation. And it ain’t happening in the United States in 2019.

The reason the government is shut down right now is because our system of government does nothing to incentivize Trump’s fellow Republicans to reopen it. And that’s fairly unusual among modern democracies.

Snap elections

As of this writing, Trump’s shutdown is the third-longest in the nation’s history. It’s likely to last much longer. Trump says he could keep it going for “months or even years.”

Compare that outcome to what happened in Canada when its government was unable to pass a budget in 2011.

In 2011, then-Prime Minister Stephen Harper’s Conservative Party controlled a plurality of Canada’s parliamentary seats but not a majority. Without such a majority, Harper’s proposed budget didn’t have enough votes to get through the legislature.

Canada did not shut down because of this impasse, however. In Canada, if parliament defeats a budget bill, that triggers an entirely new election (technically, the 2011 Canadian election was triggered by a no confidence vote, but a new election was widely viewed as inevitable). As it happened, Canadian Conservatives were well-positioned when this election happened, so they won an outright majority. That meant that they passed a budget and the nation moved on.

Almost two decades ago, a professional guitarist named Diana Levine received an injection of a drug called Phenergan. It was supposed to relieve nausea from a migraine. Instead, it triggered irreversible gangrene.

Levine lost her right forearm and her livelihood. With just one hand, she could no longer play the guitar.

Levine’s lawsuit against the drug’s manufacture, Wyeth v. Levine, triggered a minor panic in the consumer rights community when it reached the Supreme Court a decade ago. The business-friendly Roberts Court seemed likely to absolve Wyeth of liability and leave Levine with nothing.

Instead, the Court broke 6-3 in Levine’s favor, with Justices Anthony Kennedy and Clarence Thomas crossing over to vote with the Court’s liberal bloc.

Ten years later, a similar case involving closely related legal questions is before the Supreme Court in Merck Sharp & Dohme Corp. v. Albrecht, which will be argued on Monday. But the Court itself looks very different. Justices John Paul Stevens, David Souter, and most significantly Kennedy, are all retired — and all of them were in the majority in Levine. Kennedy’s replacement is a hardline conservative likely to join the dissenters from Levine.

That means that the fate of thousands of Americans who face injuries similar to Levine is in jeopardy. And the question of whether the drug companies that injured this individuals will ever be held accountable could rest a man who is ordinarily the Court’s most conservative voice — Justice Thomas.

Remember Burwell v. Hobby Lobby? Hobby Lobby is the single most significant court victory ever achieved by America’s religious right. Before Hobby Lobby, religious conservatives could not wield their faith to undercut the rights of other people. After Hobby Lobby conservative religious objections may be used to narrow the rights of third-parties.

Yet a passage in Justice Samuel Alito’s opinion for the Court in Hobby Lobby could — or at least, should — take on an entirely unexpected significance after Reed O’Connor, a partisan operative turned federal judge, struck down the entire Affordable Care Act on Friday in a case called Texas v. United States.

Judge O’Connor’s opinion is a jurisprudential trainwreck. It misreads the text of the law, draws distinctions that the Supreme Court explicitly rejected, and it feigns ignorance regarding the outcome of a year-long debate where congressional Republicans tried and failed to repeal Obamacare. O’Connor’s opinion is such an embarrassment to the judiciary that even Jonathan Adler, one of the architects of the last partisan lawsuit seeking to undermine Obamacare, called the opinion “strained and implausible.”

But you don’t have to take my or Adler’s word for it. You can also take Justice Alito’s.

O’Connor’s opinion, to the extent that it engages in anything that can be described as legal reasoning, rests largely on statements of fact that Congress wrote into the Affordable Care Act’s text when it enacted the law in 2010. Yet Hobby Lobbyrejected O’Connor’s use of such fact-finding statements. Indeed, the methodology O’Connor used in his opinion is so inconsistent with the methodology Alito used in Hobby Lobby that the two opinions cannot coexist.

If Democrats regain Congress and the White House, they will spend their time in power at war with an increasingly partisan Supreme Court. They can also learn a lot about how to fight such a Court from a law signed by Republican President George H.W. Bush.

As a U.S. Senate candidate in 1964, Bush took a deplorable position on civil rights, labeling the Civil Rights Act of 1964 — which banned employment discrimination and whites-only lunch counters, among other things — a “radical” piece of legislation that was “passed to protect 14 percent of the people.”

Bush soon abandoned these views. As a new congressman, Bush supported a ban on housing discrimination. And as president, Bush signed two significant civil rights laws — the Americans with Disabilities Act and the Civil Rights Act of 1991. While the first is better known, the second could offer a path forward to Democrats reeling from a stolen Supreme Court seat and the appointment of a man credibly accused of attempted rape to the same Court.

The Civil Rights Act of 1991 offered a swift corrective to the Supreme Court. In 1989, the Court handed down five decisions that “substantially eroded” the federal ban on employment discrimination. One of the major purposes of the law Bush signed was to override these decisions and replace them with rules more protective of civil rights (at the time, some members of the employer defense bar complained that the law reached “beyond a simple ‘restoration’ of prior laws” to enact a regime that was more protective of civil rights than the one that existed before 1989).

A quarter century ago, America was approaching a consensus regarding how our Constitution should be read.

To be sure, contentious issues such as affirmative action and abortion remained, but these issues were relatively marginal compared to the nation-defining questions that dominated much of the twentieth century. No one outside of a small lunatic fringe still argued, in 1991, that the federal ban on whites-only lunch counters is unconstitutional. There was no serious risk that the Supreme Court would dismantle the Voting Rights Act. Or that the Court would strike down basic labor protections such as the minimum wage.

All of that changed after the late President George H.W. Bush placed Justice Clarence Thomas on the Supreme Court.

Justice Thomas may be the most underestimated person in American law. As I wrote last June, “no justice did more to shape a political movement’s sense of what it can achieve through litigation.” Thomas is quiet on the bench and has minimal influence on his colleagues, but he’s had a tremendous influence on the conservative legal movement.

His plans to dismantle the federal administrative state now dominate both the Federalist Society and the Trump administration. His opinions suggesting that much of the New Deal and the Great Society are unconstitutional taught a generation of conservative law students to dream of a world where every law they disagree with is struck down by the Supreme Court. At least six of Trump’s federal appellate nominees are former Thomas clerks.

As I wrote in June, “Thomas lost the war for the present, but he is the future of legal conservatism. And he may soon be America’s future.”

Rep. Bruce Poliquin (R-ME), who is currently in a tight reelection fight against Democrat Jared Golden, filed a federal lawsuit Tuesday that would effectively toss out over twenty thousand ballots if he prevails.

There’s just one problem. His primary legal argument rests on a provision of the Constitution that does not actually exist.

In 2016, Maine’s voters approved a ballot initiative that institutes ranked choice voting in that state. Under this system, voters are asked to rank the candidates for a particular office in order, from their most preferred candidate to their least preferred candidate. If no one candidate wins a majority, ballots cast for the least popular candidate are then redistributed to second-choice candidates. And this redistribution continues until someone emerges with a majority.

According to Poliquin’s lawsuit, which is captioned Baber v. Dunlap, the incumbent Republican currently leads with 46.3 percent of the vote. Thus, under the system most states use to determine who wins elections, Poliquin would have won. Under ranked choice voting, however, votes cast for third-party candidates Tiffany Bond and William Hoar must be redistributed. It is possible that once that redistribution happens, Golden will emerge as the winner.

In a sensible world, Virginia House of Delegates v. Bethune-Hill would have nothing whatsoever to do with the Affordable Care Act. On its surface, Bethune-Hill is a racial gerrymandering case which, the Supreme Court announced on Tuesday, will be heard by the Court for the second time.

Yet Bethune-Hill also presents a difficult issue regarding when non-parties to a federal lawsuit may appeal lower court decisions to a higher authority. And this technical question could have tremendous implications for Obamacare. Depending on how the Supreme Court rules in Bethune-Hill, this seemingly irrelevant gerrymandering dispute could enable the Trump administration to collude with a highly partisan judge to shut down the Affordable Care Act in a bevy of red states.

Who can file an appeal?

Bethune-Hill challenges 12 of Virginia’s state legislative districts, alleging they are unlawful racial gerrymanders. This case was originally filed in 2014, and it’s been through several twists and turns since then. Before Tuesday, the most significant recent development was a lower court decision holding that 11 of these 12 districts are, indeed, unlawful. The lower court ordered Virginia’s legislature to draw new maps by October 30.

Significantly, Virginia’s Democratic Attorney General Mark Herring chose not to appeal that lower court order. Instead, it was the state’s Republican-controlled House of Delegates that sought to overturn the lower court’s decision. The House of Delegates are not a party to this suit, but they were granted “intervenor” status by the lower court — status that allowed them to defend the gerrymandered maps in that court.

Judge Brett Kavanaugh’s bid to join the Supreme Court enters its theatrical stage on Tuesday, when his confirmation hearing begins. Kavanaugh will spend his week being intermittently praised by Republican senators and dodging questions from Democratic senators.

It’s a process that, in Justice Elena Kagan’s words, lacks “seriousness and substance” and risks taking on “an air of vacuity and farce.” Supreme Court nominees have gotten very good at spending their confirmation hearings saying little to nothing of interest. Don’t expect Judge Kavanaugh’s to be any different.

In a break with past practice, Senate Republicans scheduled Kavanaugh’s hearing this week despite the fact that many documents from his time in the Bush White House are not yet available. Nevertheless, we know a great deal about how Kavanuagh is likely to behave if he is confirmed due to his public writings and his 12 years on the federal bench.

We know that Kavanaugh will almost certainly kill Roe v. Wade. There are currently four votes on the Supreme Court who consistently vote against abortion rights. Kavanuagh gave a speech in 2017 criticizing Roe and praising the dissent. And he sided with the Trump administration, at least temporarily, when the administration literally held women prisoner to prevent them from having an abortion.

One of retired Justice Anthony Kennedy’s final acts as a sitting justice was to stare partisan gerrymandering directly in the eye and cry out a resounding “meh.” A pair of cases argued last term were supposed to deliver sharp blows to such gerrymandering. Instead, the Court punted, Kennedy retired, and there is no longer a plausible way to form a majority that could halt this anti-democratic practice.

Yet, even as the Supreme Court refuses to enforce the Constitution, two of the most gerrymandered states dealt severe blows to partisan election rigging this year, and a third is likely to follow suit this November.

So gerrymandering is not dead, and there is a very real risk that the Supreme Court will invigorate it if Judge Brett Kavanaugh is confirmed to replace Justice Kennedy. For the moment, however, the GOP’s death grip on U.S. House redistricting is starting to crumble.

How we got here

Every ten years, the states must redraw their legislative districts to comport with the most recent census. As a result, if one party dominates the election immediately proceeding a redistricting, that victory can have consequences that extend for years or even decades. The party that dominates in an redistricting year can draw maps that lock it into power for the next ten years — and is more likely than not to over-perform in the next election immediately proceeding a redistricting cycle.

About two years ago, Justice Samuel Alito appeared poised to deliver a long-awaited victory to the Republican Party. Alito, who authored two opinions targeting public sector unions, seemed to have the five votes he needed to strike a major blow to organized labor’s finances, causing many unions to wither. It would have been a coup for the GOP — serving both the party’s ideological goals and undermining a major source of Democratic organizing power in the process.

Then Justice Antonin Scalia died, Republicans lost their majority on the Supreme Court, and this broader attack on public sector unions appeared dead.

That was then. This is now.

On Wednesday, the Supreme Court voted along party lines to effectively defund many public sector unions. This outcome was made possible thanks to Senate Republicans, who held open Scalia’s vacant seat for a year until a man who lost the popular vote by 2,864,974 votes could fill it with his own pick. The Court’s decision in Janus v. AFSCME is a tribute to American undemocracy.

For the second time during this Supreme Court term, an awesome, nation-defining Supreme Court showdown ended with a flaccid, overcooked nothingburger.

On Monday, the Court handed down its decisions in Gill v. Whitford and Benisek v. Lamone — although labeling either opinion a “decision” may be too strong of a term. Both cases are punts, which delay a showdown over partisan gerrymandering for at least another year.

Gill involves one of the most aggressive gerrymanders in the country, a Republican gerrymander that renders the Wisconsin state assembly virtually immune from democracy. In 2012, for example, Republicans won only 48.6 percent of the two-party statewide vote — meaning that they received significantly less votes than Democrats — yet they won 60 of the 99 seats in the Wisconsin Assembly. Two years later, Republicans won 52 percent of the two-party statewide vote, yet they won 63 of the 99 seats.

Benisek, meanwhile, involves a Democratic gerrymander in the state of Maryland. In that state, Democrats rigged their congressional maps to add an additional Democrat to the state’s U.S. House delegation. Before the gerrymander, the state’s maps were likely to send 6 Democrats and 2 Republicans to Congress. Now, the state typically sends 7 Democrats and one Republican.

The two cases presented a wealth of fascinating legal questions. Does a workable test exist that courts can use to identify partisan gerrymanders? Can a mathematical formula be devised that will sort gerrymandered maps from others, or is this inquiry necessarily subjective? Can litigants challenge a state’s entire map at once, or must they go district by district?

These questions, however, remain largely unanswered.

The Supreme Court held on Monday that employers can force their employees to sign away many of their rights to sue their employers. As a practical matter, Monday’s decision in Epic Systems v. Lewis will enable employers to engage in small-scale wage theft with impunity, so long as they spread the impact of this theft among many employees.

Neil Gorsuch, who occupies the seat that Senate Republicans held open for a year until Donald Trump could fill it, wrote the Court’s 5-4 decision. The Court split along party lines.

Epic Systems involves three consolidated cases, each involving employment contracts cutting off employees’ rights to sue their employer in a court of law. In at least one of these cases, the employees were required to sign away these rights as a condition of starting their job. In another, existing workers were told to sign away their rights if they wanted to keep working.

Each contract contained two provisions, a “forced arbitration” provision, which requires legal disputes between the employer and the employee to be resolved by a private arbitrator and not by a real court; and a provision prohibiting employees from bringing class actions against the employer.

Writing with his trademarked smugness, Gorsuch presents Epic Systems as a simple application of a legal text. “The parties before us contracted for arbitration,” he writes. “They proceeded to specify the rules that would govern their arbitrations, indicating their intention to use individualized rather than class or collective action procedures. And this much the Arbitration Act seems to protect pretty absolutely.”

Let me tell you a story about a United States senator who, despite all the warnings that his Republican counterparts would never, ever return the favor, gave many of those Republicans a veto power over President Obama’s judicial nominees.

I bet you’ll never guess what happened next.

This story begins with a judicial vacancy that opened up more than 8 years ago, and that a single Republican senator held open for the bulk of Obama’s presidency. It ended on Thursday, when Donald Trump’s nominee to fill this extended vacancy was confirmed on a party-line vote.

In this story, the role of Charlie Brown is played by Pat Leahy (D-VT), who chaired the Senate Judiciary Committee for most of the Obama presidency. “I have steadfastly protected the rights of the minority,” Leahy proclaimed in 2012, adding that he has “done so despite criticism from Democrats.”

In deference to the Republican minority, Leahy allowed a single senator to veto an Obama judicial nominee from that senator’s home state. As the man empowered to schedule confirmation hearings or halt them before they begin, Leahy “only proceeded with judicial nominations supported by both home state Senators.”

Few matters capture the pathology of the Roberts Court more completely than the two Abbott v. Perez cases, a pair of identically named racial gerrymandering cases that the Supreme Court will hear on Tuesday.

The Perez cases are about partisan gamesmanship. In 2013, the state of Texas admitted in a brief filed in a federal court that their “redistricting decisions were designed to increase the Republican Party’s electoral prospects at the expense of the Democrats.” They did so because they believed, based on the Supreme Court’s own partisan gerrymandering decisions, that the Court would do nothing to stop such gerrymandering. Texas’ calculation may yet prove to be correct.

The Perezes are cases about delay. Texas enacted its gerrymandered maps in 2011, and while those maps were partially altered in 2013, a federal court found that portions of those maps were illegal racial gerrymanders in 2017. It’s now 2018 and, thanks in part to the Supreme Court’s intervention, it is all but certain that the gerrymandered maps will be in effect during this year’s midterm elections. Even if the Supreme Court ultimately rules against Texas, their decision is likely to only impact one election — the 2020 races — before the Census requires the state to draw a new set of maps.

But, most of all, the Perez cases are cases about abdication. They are the product of a Supreme Court whose priorities are entirely upside-down. And they warn of a larger rot at the heart of American democracy.