The Atlantic hurricane season doesn't officially begin for another seven weeks, but early signs indicate there is more uncertainty than normal with this particular season -- all thanks to El Niño.

It is often difficult, if not impossible, to tell what the Supreme Court is thinking about a case from the questions the justices ask counsel. But the argument in Moore v. Harper, heard by the Court in early December, was different. By the end, it was clear the Supreme Court has no appetite for the independent state legislature theory—and that offers hope for the future of America’s democracy.

The theory—that state legislatures have the unreviewable power to set the rules of their state’s federal elections—is a dangerous one. The case began when the North Carolina legislature redrew the congressional-districts map that would apply in federal congressional elections and the North Carolina Supreme Court invalidated that map under the state constitution. The state legislators appealed that decision to the U.S. Supreme Court, claiming, under the independent state legislature theory, that the legislature has exclusive power to regulate federal congressional elections, without oversight from the state supreme court under the state’s constitution.

[J. Michael Luttig: There is absolutely nothing to support the ‘independent state legislature’ theory]

If the U.S. Supreme Court were to adopt this theory, it would foreclose state-supreme-court review of congressional-redistricting maps and other federal-election regulations enacted by the state legislatures, causing mayhem in the state-administered federal elections. Before the argument in Moore, I wrote in The Atlantic that the independent state legislature theory has literally no support in the Constitution, the pre-ratification debates, or the history from the time of our nation’s founding. And it is antithetical to the Framers’ intent, and to the text, fundamental design, and architecture of the Constitution. This was painfully evident for the proponents of the theory during the three-hour argument before the justices.

The Court seems poised to reject the misnamed independent state legislature theory and hold that redistricting maps are reviewable by the state courts for compliance with their state constitutions, as they have been since the nation’s founding. If the Court attempts to constrain the state supreme courts at all, which it ought not, it will do so by setting a standard of review for those courts to follow when reviewing state election laws. That standard will almost certainly be highly permissive of the state supreme courts, in recognition of the Court’s exceedingly limited role in reviewing state-supreme-court interpretations of their constitutions in the context of elections-clause challenges to state-enacted federal-elections laws.

(A small chance exists that the Supreme Court will not rule in the case at all, because the North Carolina Supreme Court’s grant of rehearing in Moore v. Harper could deprive the U.S. Supreme Court of “final judgment” jurisdiction or eventually could cause the Court to declare the case moot. Presumably worried by the oral argument at the Court in December, the North Carolina legislators have asked the newly reconstituted North Carolina Supreme Court to overrule its own decision in Moore. The state supreme court that originally decided Moore was 4–3 Democrat, but the Republicans picked up two seats in the state election last November and now have a 5–2 majority. In response to the state supreme court’s grant of rehearing, the U.S. Supreme Court asked the parties to brief whether there is still a “final judgment” for the Supreme Court to review. There is, and both the petitioners and respondents have so advised the Supreme Court, so the Court seems more than likely to still rule.)

In advance of the oral argument, the extensive briefing by the parties and the 60 amici curiae was exceptional, and the justices arrived well prepared. The lawyers for the parties were four of the most respected Supreme Court lawyers of this generation. Two were former solicitors general of the United States—Don Verrilli, who argued for the State of North Carolina respondents, and Neal Katyal, who argued for the non-state respondent Common Cause. The third lawyer, Elizabeth Prelogar, is the current solicitor general of the United States, who argued in support of the respondents. The fourth lawyer, David Thompson, who argued for the petitioners, North Carolina state legislators, is a highly respected appellate attorney well known to the Court. The arguments of all four counsel were excellent. Katyal’s performance was virtuosic, as if a great maestro were conducting the world’s finest symphony orchestra.

I was co-counsel for the respondent Common Cause, though I neither argued the case nor was seated at counsel’s table. I watched the argument from my seat in the relatively few rows in the courtroom reserved for the public—the best vantage point in the chamber. I was there because of my interest in the so-called independent state legislature theory, which I testified to the January 6 Select Committee was the centerpiece of the effort to overturn the 2020 presidential election by the former president, and because, as I have explained publicly, Moore v. Harper is the single most important case for American democracy since the founding of the nation.

The extraordinarily long argument in this landmark case for our democracy was bound to be illuminating‚ and it was.

From the moment David Thompson stepped to the lectern, he received a withering fusillade of skeptical questions from the justices about each of his arguments, as well as about the sweeping implications of the independent state legislature theory for America’s democracy. The questioning of Thompson was initially led by Chief Justice John Roberts and the Court’s three liberals—Justices Sonia Sotomayor, Elena Kagan, and Ketanji Brown Jackson. But Justices Clarence Thomas, Amy Coney Barrett, and Brett Kavanaugh soon joined in with their own piercing questions, and these seven were eventually joined by Justices Samuel Alito and Neil Gorsuch, thought to be the Court’s members most sympathetic to the theory.

[William Baude and Michael W. McConnell: The Supreme Court has a perfectly good option in its most divisive case]

Kagan seemed to reject the independent state legislature theory out of hand, explaining that under the theory “legislators could enact all manner of restrictions on voting [and] get rid of all kinds of voter protections that the state constitution in fact prohibits … In all these ways, I think what might strike a person is that this is a proposal that gets rid of the normal checks and balances on the way big governmental decisions are made in this country.” In an evident reference to the 2020 presidential election and its aftermath, she added, “You might think that it gets rid of all those checks and balances at exactly the time when they are needed most.”  

Thompson responded to Kagan that the checks and balances on the state legislatures “come from the federal Constitution and the panoply of federal laws like the Voting Rights Act”—urging that oversight of the state legislatures be left exclusively to the federal courts. But his response seemed unpersuasive to a Court apparently convinced that, as originally understood at the time of the Constitution’s framing, the state legislatures’ regulations of federal elections would be subject to state-supreme-court review under the state constitutions.

Jackson expressed her concern about the theory this way: “I guess what I’m a little worried about is the suggestion that when the legislature … is exercising legislative authority in this context, it does not have to adhere to any state-constitutional constraints on its power, when it’s the state constitution that gives it its power and tells us when it is appropriately acting as the legislature not just with respect to the issue of elections.” Jackson appeared to agree with respondents that because the legislatures are creatures of the state constitutions, the Framers of the Constitution would have understood and assumed that the election laws the legislatures passed would be reviewable by the state courts for compliance with the state constitutions, and if the Framers intended that those election laws would not be reviewable, they would have so provided in the Constitution or indicated as much in the constitutional debates at the time of the framing.

Even Thomas, Alito, and Kavanaugh, each of whom previously expressed interest in the much less extreme formulation of the independent state legislature theory articulated by then–Chief Justice William Rehnquist in Bush v. Gore, appeared skeptical of the legislators’ argument that the state supreme courts are entirely foreclosed by the elections clause of the Constitution from reviewing a legislature’s redistricting plan under a state constitution.

Alito, for example, observed that it’s “inevitable” that state courts will have to interpret state election laws in at least some instances. And Kavanaugh pointed out that the North Carolina legislators’ argument that the state constitutions do not apply to the legislature’s redistricting decisions “seem[ed] to go further” than Rehnquist’s concurrence in Bush v. Gore, which acknowledged that “state courts have a role interpreting state law.”

Early in the argument, Thomas asked Thompson potentially the most significant question of the day: “What is the [Supreme Court’s] jurisdiction for this case?” Thomas elaborated that the U.S. Supreme Court does not typically review state-supreme-court interpretations of state constitutions. His question is best understood as asking whether a federal constitutional issue is ever presented by a state supreme court’s interpretation and application of its state constitution to its state legislature’s redistricting decisions and other federal election laws. Barrett later suggested in a colloquy with Verrilli that she, too, questioned whether the Court had the jurisdiction to hear Moore.  

To Thomas and Barrett’s point, the Constitution doesn’t contemplate that the federal judiciary will constrain the state supreme courts in the interpretation of their own state constitutions. The Constitution’s checks on the state legislatures are either federal judicial review under the U.S. Constitution or Congress’s power under the elections clause to prescribe the rules for holding congressional elections or to alter the rules enacted by the state legislatures. Under the most plausible interpretation of the elections clause, a federal question would never be presented by a state supreme court’s interpretation of its state constitution, as I wrote previously.     

Throughout the entire argument, none of the justices expressed anything approaching agreement, let alone unreserved agreement, with petitioners’ arguments for the independent state legislature theory. The Court’s reservations drew from the Constitution’s text, from history, and from the Court’s precedents, all three of which emerged as dominant lines of questioning by the justices and unmistakably point away from the dangerous independent legislature theory.      

The North Carolina Republican legislators’ argument for the theory from the Constitution’s text was that the elections clause empowers the “state legislatures” to prescribe the regulations for congressional elections and that the term legislature refers only to the state’s representative legislative body, which passes the state’s laws. The North Carolina legislators argued from the fact that the elections clause empowers the representative legislative body to prescribe the regulations for congressional elections that the legislative power cannot be constrained by the state courts through the state constitutions.

Significantly, there was little discussion at argument about whether the term legislature in the elections clause means only the representative legislative body or instead means the whole of the lawmaking process, including judicial review and gubernatorial action, as the respondents contended. And only a couple of questions were related to the definition of the term legislature, both from Jackson, who read the elections clause as “not taking a position as to who the legislature is.”  

[Quinta Jurecic: A case that even this Supreme Court seems torn over]

The little discussion around this threshold and central argument of the parties could be explained by the fact that the Court seemed to come into the day of argument satisfied by the historical evidence that the state constitutions in fact do apply to the legislatures’ redistricting decisions, regardless of how the term legislature in the clause is understood.

The Court’s questions were highly critical of the North Carolina legislators’ historical arguments. By notable contrast, the Court was clearly more receptive to the historical arguments made by Katyal, Verrilli, and Prelogar.

The respondents’ primary argument in Moore was that the Framers wrote the elections clause against the backdrop that most state constitutions at the time did constrain their respective legislatures in the regulation of both state and federal elections, and immediately following the federal Constitution’s ratification, state constitutions continued to constrain the power of state legislatures in their prescription of the manner for holding elections. Consequently, the respondents argued, the Framers understood and assumed that the state constitutions would apply to the state legislatures’ federal-elections regulations.

Thus, Katyal argued, the independent state legislature theory is refuted by 233 years of American constitutional history, rejected by the Articles of Confederation, rejected by the early state constitutions, rejected by the founding practice, and repudiated by the Supreme Court’s precedents. To accept the theory, he told the Court, it “would have to ignore the text, history, and structure of our federal Constitution as well as nearly every state constitution today.”

Thompson disputed this indisputable history, contending that the early state constitutions regulated only the elections for state “offices that were created by [those] constitutions,” not federal congressional elections. At first, Justice Sotomayor tutored Thompson that “at the founding of the Constitution, decades after, and even to today, state constitutions have regulated times, places, and manner of federal elections.” When Thompson continued to recite historical evidence that he mistakenly argued supported his claim, Sotomayor eventually ended the exchange by noting, “Yes. If you rewrite history, it’s very easy” to say that history supports the independent state legislature theory.

Finally, Justice Kavanaugh tellingly asked Thompson directly, “What do we do with [the] historical practice? Nearly all state constitutions regulate federal elections in some way, and some of the early constitutions did that.” Thompson did not have a satisfying answer.

Thompson was also repeatedly asked how the independent state legislature theory could be reconciled with the Court’s precedents, in particular Smiley v. Holm, which held that a governor could veto a state legislature’s redistricting plan using a veto provided for in the state constitution, but also Arizona State Legislature v. Arizona Independent Redistricting Commission, which upheld independent redistricting commissions, and Rucho v. Common Cause, which, despite rejecting federal remedy for unconstitutional redistricting by the state legislatures, said that state judicial process is available to remedy unconstitutional gerrymandering. Although the Supreme Court has never considered the independent state legislature theory as such, the theory is in tension with these and other precedents.

As Kagan put it, “I would think that our precedent gives you a lot of problems. In all recent cases, we’ve said … state courts applying state constitutions typically constrain state legislatures when they redistrict, when they enact election laws.” Referencing Arizona State Legislature, Kagan noted that “nothing in the elections clause instructs, and this Court has never held, that a state legislature may prescribe regulations on the times, places, and manner of holding federal elections in defiance of the state’s constitution.”

Attempting to reconcile the independent legislature theory with the Supreme Court’s precedents, Thompson argued that, though a state constitution may prescribe the procedure or method by which a state legislature enacts a federal-election regulation—such as by requiring a bicameral vote or that legislation be subject to a gubernatorial veto—it may not impose substantive limits on the election laws that a state legislature enacts pursuant to its elections-clause authority. Thompson argued, “It is federal law alone that places substantive restrictions on states’ legislatures performing the task assigned to them by the federal constitution.”

The Court—in particular Roberts, Kagan, Sotomayor, and Barrett—appeared deeply skeptical of Thompson’s distinction between substantive limitations on the legislatures, which Thompson argued were impermissible, and procedural limitations, which, because the Supreme Court previously so held, he had to concede were permissible.  

The justices also asked Thompson about Rucho, for which Chief Justice Roberts wrote the majority opinion. In Rucho, though the Court held that federal courts could not review state legislative redistricting plans, it said in nonbinding but crucial dictum that “provisions in state statutes and state constitutions can provide standards and guidance for state courts to apply” in reviewing state redistricting plans.

When Roberts asked about Rucho, suggesting that the independent legislature theory is irreconcilable with what the Court said in that case, Thompson contended that Rucho does not contradict the independent state legislature theory, but that the North Carolina Supreme Court simply failed to employ the “manageable and discoverable standards” that Rucho requires the state courts to employ when reviewing the legislatures’ redistricting decisions under the state constitutions. Consequently, the state supreme court unconstitutionally “took legislative power” away from the North Carolina legislature—a response that itself accepted the application of Rucho’s consequential dictum.

The Court eventually turned to the standard of review, if any at all, for determining whether a state supreme court exceeds its power under the elections clause. Thompson argued that the elections clause forbids all state-court review of the legislatures’ redistricting and other federal-elections regulations. Both Katyal and Verrilli acknowledged that there could be “extreme circumstances” in which a state supreme court’s interpretation and application of its state constitution in a redistricting case could run afoul of the Constitution’s elections clause. But, they argued, given the deference federal courts are required to accord state-court interpretations of state law, the standard for determining such an instance would have to be “incredibly high,” “sky high”—with “such little legal reasoning that it can only be understood as seizing the policy-making apparatus” of the state legislature.

There was also significant discussion about how the Bush v. Gore standard for statutes would apply to state-court interpretations of state constitutions. In that case, in the context of an electors-clause challenge to a state statutory provision, Rehnquist, joined by Justices Scalia and Thomas, wrote that “a significant departure from the legislative scheme for appointing Presidential electors presents a federal constitutional question.” Katyal told Kagan that the Bush v. Gore standard was not applicable at all, because state constitutions are entitled to even greater deference from the federal courts than state statutes. Katyal explained in response to a question from Kavanaugh that a different standard is required because “state constitutions are at the apex of [the states’] sovereignty.”

Disagreeing with Katyal on whether a different standard should apply in the context of statutory review than constitutional review, Verrilli argued that the standard should be the same for both constitutional and statutory provisions.  Prelogar agreed with Verrilli that the same standard should apply for both but offered that greater deference should be afforded the state courts when they are interpreting and applying a state constitutional provision, which is tantamount to saying that different standards should apply. State and federal constitutional provisions are often more broadly worded and capacious than statutes, necessitating resort to different methods and sources for interpretation, Prelogar noted, adding, “I think that federal courts should not be in the business of saying that the state courts aren’t giving [constitutional provisions] a fair reading.”

Prelogar argued that only in the rare circumstances “where the [state court] can’t properly be understood to be conducting judicial review in the first place” should the federal courts not defer to the state supreme courts’ interpretations of their state constitutions. When Sotomayor asked Prelogar, “At what point has a court acted not as in judicial review, but rather as in legislating?” Prelogar responded, “We think the closest analogue to try to track this problem I’ve described—of when a [state] court is not faithfully engaged in judicial review—is to borrow from the adequate and independent-state-grounds context and specifically the civil-rights cases, where the Court has said that if the state-court decision is so lacking in any basis, and has no fair or substantial support, and can only be understood as an effort to frustrate federal rights, then the Court can look past that [state-court] decision.”

When Roberts asked Thompson about a possible standard that could serve as a narrower basis for deciding the case than what his side was arguing for, Thompson replied that, if the state constitutional provision were sufficiently specific, in contrast to a broadly worded and open-ended provision like North Carolina’s free-elections clause, such a specific provision would be permissible under the U.S. Constitution, a reply that undermined his twin arguments that state constitutions should never be allowed to constrain state legislatures, and certainly not substantively. To Thompson’s credit, he was prepared to follow his own argument to its final, principled end, acknowledging to the Court that a state constitutional ban on partisan gerrymandering would be an example of a permissible provision under the U.S. Constitution and allowed as contemplated by the Court in Rucho.

At this, Sotomayor parried with Thompson, pointing out that many state constitutional provisions lack such specific standards and so she took Thompson’s answer “to mean that there are no judicially enforceable standards to interpret the freedom of speech, freedom of assembly, and equal protection clauses of the [U.S.] Constitution, because they, on their face, would appear to be as unmanageable or broad, and yet we routinely let federal and state courts review those acts.” She chided Thompson: “It seems that every answer you give is to get you what you want.”     

Throughout the entire argument, the justices were so critical of Thompson’s historical arguments and attempted legal argument, and yet so evidently perplexed as to any appropriate standard that could constrain state supreme courts in the interpretations of their state constitutions, that I was left wondering in the end whether the Court will attempt to constrain state supreme courts at all—and that is as I would hope:  The Court ought not attempt to constrain the state supreme courts in any way.

As Katyal argued, federal-court review of the state supreme courts’ decisions under the U.S. Constitution or Congress’s exercise of its power under the clause to prescribe the times, places, and manner of holding congressional elections or to alter such regulations as the state legislatures prescribe are the Constitution’s checks on state legislatures’ constitutionally conferred power to prescribe the regulations for congressional elections. The federal courts do not sit to adjudge the validity of state-supreme-court interpretations of their own state constitutions and the Constitution does not contemplate such, certainly not in the elections-clause context.

If the Court does interpret the elections clause in Moore to require circumscription of the state supreme courts’ review of their legislatures’ redistricting decisions, that circumscription ought to be exceedingly limited, given the substantial deference that the Constitution requires be accorded the state supreme courts in their interpretations of their own state constitutions.

Even so, if the Court takes that path it will struggle (one has to believe, ultimately in vain) to fashion a constitutionally defensible standard to constrain the state supreme courts in their interpretations of their constitutions. The language of constitutions is significantly different from the language of statutes. Constitutional provisions, such as the free-elections provision in the North Carolina state constitution under which the North Carolina state supreme court held the redistricting plan unconstitutional in Moore, are purposely written in broader, more capacious and indeterminate language than statutes, in expectation of judicial interpretation. The interpretive sources the state supreme courts consult and the interpretive canons and methodologies they use to interpret their constitutions vary from state to state and constitution to constitution. The 50 state constitutions, and therefore the constitutional provisions that might apply to the state legislatures’ redistricting decisions and elections laws, vary widely in language and substance across the states and are in many cases no less capacious and indeterminate than the provisions of the U.S. Constitution that would apply were Congress to prescribe the rules for holding congressional elections and the Supreme Court to review those laws under the U.S. Constitution. As a result, it will be, as it should be, all but impossible to fashion an appropriate standard and thereafter to determine, under any standard that would be imposed by the Court, whether a state supreme court faithfully interpreted and applied the state’s constitution to a legislature’s elections-law enactments.

Regardless of any standard it might fashion, the Court appears likely to affirm the decision of the North Carolina Supreme Court in Moore. The North Carolina legislature itself legislated judicial review of its redistricting decisions by the state courts, a determinative point that the Court barely touched upon during argument. What is more, the advocate for North Carolina legislators repeatedly conceded at argument that the North Carolina Supreme Court’s decision invalidating the state legislature’s redistricting map “fairly reflect[ed] North Carolina law.” And as Justice Gorsuch stated, “nobody here thinks the North Carolina Supreme Court is exercising a legislative function.”      

On that day last December, the Court itself debunked root and branch the constitutionally radical independent state legislature theory that was the centerpiece of former President Donald Trump’s effort to overturn the 2020 presidential election and that would upend federal presidential and congressional elections from the way they have been conducted for more than two centuries. I left the Court that day feeling hopeful for a nation weary from the last presidential election and worried that the next presidential election could be a repeat of it. I pray that my hope is not misplaced.

This is Work in Progress, a newsletter by Derek Thompson about work, technology, and how to solve some of America’s biggest problems. Sign up here to get it every week.

Several months ago, while walking through my neighborhood in Washington, D.C., I noticed an impressive number of front-lawn placards celebrating and welcoming refugees. The signs made me proud. I like living in a place where people openly celebrate tolerance and diversity.

Several days later, my pride curdled into bitterness. As part of some reporting on housing policy, I found a State Department page offering advice to Afghans and Iraqis resettling in the U.S. The upshot: Stay away from D.C. “The Washington, D.C., metro area including northern Virginia and some cities in California are very expensive places to live, and it can be difficult to find reasonable housing,” the website warns. “Any resettlement benefits you receive may not comfortably cover the cost of living in these areas.”

My city’s prohibitive housing costs flow, in part, from the district’s infamous war against new construction. Much of D.C. is off-limits for new development, thanks to widespread single-family zoning, berserk historical-preservation rules, and a long-standing aversion to taller buildings, which stems from both federal law and local rules. If the city’s housing policies are so broken that the federal government has to explicitly tell immigrants to find somewhere else to live, then signage welcoming refugees is both futile and hypocritical. The same neighborhoods saying yes to refugees in their front yard are supporting policies in their backyard that say no to refugees.

This dynamic—front-yard proclamations contradicted by backyard policies—extends well beyond refugee policy, and helps explain American 21st-century dysfunction.

The front yard is the realm of language. It is the space for messaging and talking to be seen. Social media and the internet are a kind of global front lawn, where we get to know a thousand strangers by their signage, even when we don’t know a thing about their private lives and virtues. The backyard is the seat of private behavior. This is where the real action lives, where the values of the family—and by extension, the nation—make contact with the real world.

Let’s stick with housing for a moment to see the front yard/backyard divide play out. The 2020 Democratic Party platform called housing a “right and not a privilege” and a “basic need … at the center of the American Dream.” Right on. But the U.S. has a severe housing-affordability crisis that is worst in blue states, where lawmakers have erected obstacle courses of zoning rules and regulations to block construction. In an interview with Slate, Senator Brian Schatz of Hawaii, a Democrat, took aim at his own side, saying progressives are “living in the contradiction that they are nominally liberal [but they] do not want other people to live next to them” if their neighbors are low-income workers. The five states with the highest rates of homelessness are New York, Hawaii, California, Oregon, and Washington; all are run by Democrats. Something very strange is going on when the zip codes with the best housing signs have some of the worst housing outcomes.

Housing scarcity pinches other Democratic priorities. Some people convincingly argue that it constricts all of them. High housing costs pervert “just about every facet of American life,” as The Atlantic’s Annie Lowrey has written, including what we eat, how many friends we keep, how many children we bear. “In much of San Francisco, you can’t walk 20 feet without seeing a multicolored sign declaring that Black lives matter, kindness is everything and no human being is illegal,” the New York Times columnist Ezra Klein wrote. But in part because those signs sit in front yards “zoned for single families, in communities that organize against efforts to add the new homes,” the city has built just one home for every eight new jobs in the past decade.

We find a similar discrepancy between stated virtues and outcomes in the realm of green energy. As I wrote last year, liberals own all the backpack buttons denouncing the oil-and-gas industry. But Texas produces more renewable energy than deep-blue California, and Oklahoma and Iowa produce more renewable energy than New York. Yes, wind is abundant in the Midwest, and the Great Plains have lots of space that’s sunny and empty. But the biosphere counts carbon, not excuses. Progressives betray their goals by supporting onerous rules that delay the construction of solar farms and transmission lines that would reduce our dependence on oil and gas.

Granted, although the hypocrisy of NIMBY environmentalists is an irresistibly delicious subject for some writers, it is hardly the only obstacle to building an abundance of clean electricity. Many of the country’s most powerful energy providers play their own word games by loudly advertising their commitment to decarbonization even as they quietly use their political power to block the transition to new energy sources. Here, as in housing, it’s easy to playact as a public crusader, screaming “Everything has to change!” to the world while remaining a private reactionary who whispers, within the back rooms of true power, “But let’s not change anything that matters.”

More broadly, a super-emphasis on language has distracted some Americans from focusing on actual outcomes and working toward material progress.

In the past few years, many employees have encouraged their companies to launch diversity, equity, and inclusion initiatives. These programs address a real problem: the stubborn gaps in pay and responsibility between white men and their nonwhite and non-male colleagues, which are sometimes borne from prejudice in hiring or promotion processes.

But after an initial burst of enthusiasm, follow-up analyses of DEI programs have found that many of them are worse than useless. First, they sometimes rely on pseudoscience, such as unconscious-bias training, which rarely reduces racism and may accidentally reify existing biases. Second, corporations that hold DEI workshops may use them as an excuse not to pursue real corporate change. In the past few years, as corporate diversity programs have proliferated, the share of Black and Asian workers who “trust their employer to do what is right in response to racism” has actually declined. According to one Bloomberg survey, the person with the least credibility on racism within the company is the person in charge of DEI.

All of the appropriate terms for this state of affairs—whitewashing, window dressing, a facade—capture the essence of front-yardism. The problem with these diversity programs isn’t that they’re “woke,” as in “doing too much to help nonwhite Americans.” The problem is that, keeping with this common if dubious definition, they aren’t nearly woke enough. Full of sound and fury signifying nothing, many DEI initiatives are conservative in nature, preserving the status quo and the power of white-male leadership while advertising a politics of radical change. They are the equivalent of a thousand REFUGEES ARE WELCOME signs in a neighborhood where the residents’ policy preferences make local refugee resettlement impossible.

San Francisco public schools offer another lesson in how an obsession with language can cloud a rightful focus on material outcomes. In 2021, the city’s board of education voted to rename more than 40 schools to scrub out racism. Their dragnet caught such not-quite-famous racists as Abraham Lincoln and Senator Dianne Feinstein. (Paul Revere was added to the list, because one committee member misread a History.com article about his role in the Revolutionary War.) At the same time that the district was putting together its list of names, its schools suffered declines in enrollment, attendance, and learning. Math scores fell sharply and, by 2022, only 9 percent of the district’s Black students met or exceeded math standards.

The renaming committee was obviously not exclusively responsible for pandemic-era learning loss. Learning loss was a national trend, and San Francisco didn’t even experience the worst of it. But if, like the San Francisco Unified School District, you’re a school district with a big math-proficiency problem and your policies include discouraging eighth-grade algebra and holding meetings about nomenclature, you might end up with failing students in well-named schools.

Even the American Medical Association has descended into front-yardism. The AMA recently published a 54-page guide on how doctors should talk with patients, called “Advancing Health Equity,” which urges medical professionals to make their language more inclusive. One particularly silly example: It advises doctors to replace the simple phrase low-income people with new terminology that acknowledges “root causes,” such as people underpaid and forced into poverty as a result of banking policies, real-estate developers gentrifying neighborhoods, and corporations weakening the power of labor movements.

I celebrate any emphasis on “root causes.” So let’s talk about the real root causes of dysfunction in America’s expensive and inequitable health-care system. Why is the U.S. one of the only countries in the developed world without universal insurance? A complete analysis might include the AMA’s “explicit, long-standing opposition to single-payer health care.”  Why does the U.S. health system struggle to provide access in rural and low-income areas? One causal factor is the AMA’s steadfast resistance to expanding nurse practitioners’ scope of care. Why does the U.S. have fewer general practitioners per capita than almost any other rich country? It might have something to do with the AMA’s refusal to expand medical-residency slots and other efforts to constrain the number of doctors in America.

Even in science, where empiricism ought to reign, I’ve seen troubling signs of word worship. In 2020, the prestigious journal Nature published its first-ever presidential endorsement, on behalf of Joe Biden. When a group of researchers studied the effect of that endorsement, they found it did nothing to persuade moderate voters and actually made conservatives less trusting of scientific institutions. “The endorsement message caused large reductions in stated trust in Nature among Trump supporters,” the paper concluded. “This distrust lowered the demand for COVID-related information provided by Nature.”

The journal’s article had all the effectiveness of a half-hearted DEI program: a bunch of pretty words doing less than nothing. Nonetheless, in March, the editors of Nature wrote a follow-up essay declaring victory. While they acknowledged that the Biden endorsement had failed to meet every measurable benchmark, they defended their decision on the grounds that “silence was not an option.” “When individuals seeking office” blast science and threaten scientists, they said, “it becomes important to speak up.”

I personally despair of the polarization of science and wish the Nature editorial had, through some magical incantation, depoliticized the vaccine debates. But it didn’t. And that holds an important lesson about the limited ability of words alone to bring about the world that progressives want to live in. The Nature editorial was an experiment, and an independent group of scientists determined that the experiment failed. That’s how science works. For the editors of a science journal to wave it away suggests that the final cause of their politics is to utter the right words, even when those words push them further away from the world they want to build.

Companies hiring DEI consultants to quote Malcolm X in a meeting to cover up a pitiful diversity record; school officials watching math scores plummet for Black kids while they debate whether Lincoln was racist; AMA employees playing word games while limiting the number of physicians; environmentalists buying BEYOND COAL pins while challenging the construction of any clean-energy project that might help the electric grid move beyond coal—what ties these examples together is front-yard theater.

You may have noticed that I’ve mostly focused on progressive causes and left-leaning institutions. This is as deliberate as it is unfair.

It’s deliberate because, to paraphrase Noah Smith, I deeply want progressives to love progress itself, not just the sound of it. When it comes to the virtues of housing affordability, clean-energy abundance, high-quality education, and trustworthy science, I want my political side to turn its signage into signatures, its placards into policies. But my emphasis so far on liberalism is also unfair, because to prattle on about progressive hypocrisy without a similar analysis of the right would profoundly misrepresent the distribution of phoniness in American politics.

When Republicans swept into unified control of the federal government in 2017, Donald Trump promised in his inaugural address to return power to the people, unwind the “American carnage” of previous generations, and restore the manufacturing and coal industries that had been desiccated by decades of neoliberal policies. But once in office, Republicans governed more like plutocrats than populists, trying to slash federal health-insurance coverage (which failed) and to reduce taxes for large corporations by several trillion dollars (which succeeded). On economic and social policy, the Republican Party is a pretzel. The GOP officially opposes “Defund the police” and wants more law enforcement, but Trump is on the record with calls to defund the entire FBI and Department of Justice. Republicans officially seek to “lower the price of housing,” but their pledge to cut appropriated nondefense programs would likely reduce housing assistance, immediately raising the cost of living for millions of low-income renters.

No party claims a monopoly on language theater, either. Many of today’s most influential conservatives are more likely to marinate in indignation over the gender politics of candy, beer, and sneaker commercials than utter anything that might accidentally make contact with poverty, housing, energy, or health-care policy. The most significant GOP leaders, such as Trump and Florida Governor Ron DeSantis, hardly talk about economic policy at all, preferring to direct their furious attention at culture-war issues, including elementary-school curricula, drag-queen story hours, and the scourge of managerial wokeness in our corporations and schools. This postmaterial posturing might serve a strategic purpose. Behind all that fulminating about Disney and DEI, DeSantis’s views on Social Security, Medicare, and the welfare state are deeply unpopular.

While language wars escalate on the right, the phenomenon of front-yard politics may be peaking on the left. San Francisco ultimately abandoned its plan to scrub Lincoln and Feinstein from its buildings. California has voted to begin the long process of dismantling its NIMBY housing laws. Last year, President Biden signed historic laws to expand green-energy production in the U.S., even though the translation of historic spending into historic construction remains uncertain. These are small steps in the right direction.

Words matter. It would be absurd—and deeply self-defeating—for any writer to suggest otherwise. My aim is not to uproot kind-hearted yard signs, or reverse efforts to remove racist surnames from government buildings, or to discourage doctors from speaking respectfully to patients. But these linguistic efforts are only as successful as the difference they make in the world. When a politics of progressive language becomes disconnected from progressive outcomes, the movement loses. Front-yard radicalism multiplied by backyard stasis does not equal progress. It equals nothing at all.

A 2022 Supreme Court ruling changed the boundaries of America’s fight over guns. The latest mass-shooting tragedies raise the question: Where does gun reform go next?

First, here are three new stories from The Atlantic:

Clarence Thomas’s billionaire friend is no Nazi. Elon Musk’s free-speech charade is over. An institution that’s been broken for 200 years

Far More Permissive

The public-radio editor Erika Mahoney, whose father was killed in a mass shooting at a grocery store two years ago, wrote yesterday that every mass shooting is its own metastasizing loss, weaving a “web of pain” that extends far beyond its victims.

Mass shootings are also “a national disgrace,” the Stanford Law School professor John J. Donohue argues in a new Atlantic essay. Each compounding tragedy—most recently, Monday’s mass shooting at a bank in Louisville, Kentucky, and the March 27 shooting at a Nashville elementary school—highlights “the inability of the American political system to adopt numerous popular public-policy strategies that together could substantially reduce the prevalence and destructiveness of these events.”

Donohue, who has been studying the links between guns and crime for 25 years, notes that though a federal assault-weapons ban was in place for a decade, it lapsed in 2004. Now “the gun lobby is challenging every valuable gun-safety law throughout the United States, with the belief that Republican appointees on the Supreme Court will protect the right to sell lethal weaponry to as many Americans as possible,” he writes.

So far, that belief seems to hold some truth. Ryan Busse, a senior policy adviser to the gun-safety advocacy group Giffords, argued late last year that the Supreme Court’s June decision in New York State Rifle and Pistol Association, Inc. v. Bruen is a dangerous destruction of precedent. The majority opinion, written by Justice Clarence Thomas, changed the framework that courts use when determining the constitutionality of firearm regulations:

The Court’s conservative majority would judge all firearms regulations by a new originalist standard: If there is no historical proof of a gun law linked to 1791 or 1868—the years when the Second and Fourteenth Amendments, respectively, were ratified—then any modern law restricting firearms is liable to be ruled unconstitutional. Never mind that any teenager with a modern AR-15 rifle can fire several times every second, whereas a well-trained 18th-century soldier could fire a musket, at best, three or four times a minute.

The ruling, in other words, broadened interpretations of the Second and Fourteenth Amendments to protect an individual’s right to legally carry a handgun in public. That decision has transformed the fight over guns in America, the legal scholar Timothy Zick and the council member Diana Palmer explained last year. The question is no longer “who can buy guns or what guns can be bought but where these firearms can be carried, every day, by the millions and millions of Americans who own them.”

Donohue, the Stanford Law School professor, concedes that many Americans support expansive rights to gun ownership. “But,” he adds, “it’s still the case that the political system is producing an outcome far more permissive than what the population wants.” He points out the disparity that exists even between National Rifle Association leaders and the organization’s own members:

Repeated surveys show that while the NRA membership consistently supports reasonable measures such as universal background checks, NRA leaders stake out a much more extreme position. Following the February 2018 high-school shooting in Parkland, Florida, that left 17 dead, then-President Donald Trump announced that we needed more gun control and that he was not afraid of the NRA. But when the NRA head, Wayne LaPierre, told Trump to stop the push for universal background checks—then supported by 90 percent of people who voted Republican in the 2018 midterm election—Trump stopped.

Polls from the past decade suggest that an overwhelming majority of Americans support universal background checks for gun purchases. So what can Congress and the U.S. government do to better align the nation’s gun regulations with the views of its citizens? Donohue argues that any approach short of a federal assault-weapons ban, with restrictions on high-capacity magazines, will not be enough to prevent future mass shootings. He also recommends removing loopholes that allow some gun buyers to skirt protocols in the federal background-check system, and improving public education on the dangers of allowing disturbed individuals access to guns. But he’s not optimistic that these interventions are possible, given the “corrosively powerful” domestic gun industry that stands against them.

In light of the immense influence of this industry, my colleague David Frum made the case in 2021 for a gun-reform strategy that focuses on changing the minds and behaviors of individual people:

It would be good to reverse the permissive trends in gun law. It would be good to ban the preferred weapons of mass shooters. It would be good to have a stronger system of background checks. It would be good to stop so many Americans from carrying guns in public … But even if none of those things happens—and there is little sign of them happening anytime soon—progress can be made against gun violence, as progress was once made against other social evils: by persuading Americans to stop, one by one by one.

Frum offers the example of drunk driving as a potential blueprint: The action has been illegal in the United States since cars became ubiquitous, but those laws weren’t consistently enforced until the 1980s, with the founding of Mothers Against Drunk Driving by a woman who had lost her daughter to a repeat hit-and-run driver.

“MADD convinced American drivers that they were not weak or unmanly if they surrendered the car keys after drinking too much,” Frum writes. “That kind of cultural change beckons now.”

Related:

The problem America cannot fix How to persuade Americans to give up their guns

Today’s News

NPR announced that it will no longer post new content to its 52 official Twitter feeds following the platform’s decision to label the network “state-affiliated media,” a term it uses for propaganda outlets in autocratic countries (the company later changed the label to “government-funded media”). The broadcaster is the first major news organization to go silent on the social-media platform. Approximately 2,000 eastern Indiana residents have been ordered to evacuate due to toxic smoke emissions from a massive recycling-plant fire in the city of Richmond. The blaze, which began yesterday, could continue burning for several days. The e-cigarette company Juul reached a $462 million settlement with New York, California, and several other states, resolving multiple lawsuits over the company’s purported marketing to young people.

Dispatches

The Weekly Planet: Conservationists pride themselves on protecting all of Earth’s life, but, Emma Marris argues, their field often overlooks the most common type of life. Up for Debate: Broader news coverage—and less political reporting—could lead to a better-informed population, Conor Friedersdorf writes.

Explore all of our newsletters here.

Evening Read

Illustration by The Atlantic. Source: Apple TV+.

The Real Hero of Ted Lasso

By Megan Garber

Ted Lasso, like an athlete meeting the moment, peaked at the right time. The show premiered during the waning months of Donald Trump’s presidency; against that backdrop, its positivity felt like catharsis, its soft morals a rebuke. Soon, Ted Lasso was winning fans and Emmys. Articles were heralding it as an answer to our ills. The accolades recognized the brilliance of a show that weaves Dickensian plots with postmodern wit. But they were also concessions. Kindness should not be radical. Empathy should not be an argument. Here we were, though, as so much was falling apart, turning a wacky comedy about British soccer into a plea for American politics.

Read the full article.

More From The Atlantic

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Culture Brea

Photo-illustration by Oliver Munday. Sources: Samir Hussein / WireImage / Getty; Alfred Ellis & Walery / Getty.

Read. Monsters: A Fan’s Dilemma, by Claire Dederer, explains why it’s okay to like good art by bad people.

Watch. Our critic argues that Air, in theaters, delivers more substance than you’d expect from a film about a mega-company’s best-known win.

Play our daily crossword.

P.S.

Although I didn’t spend much time talking about Erika Mahoney’s essay above, I recommend sitting with it when you’re ready to step away from the policy side of the firearm conversation and reflect on the emotional toll of this violence. The essay is an honest portrayal of losing a parent to a mass shooting, and of revisiting that pain with every news alert of another such tragedy.

— Isabel

Kelli María Korducki contributed to this newsletter.