Photographs by Eva O’Leary

Landon was supposed to be at her high-school graduation on Saturday. Instead, she was preparing to travel to Washington, D.C. By Monday, the 17-year-old from Gulfport, Mississippi, was wearing a long, sleek blue dress and dancing in front of the U.S. Capitol with about 100 of her transgender peers at the Trans Youth Prom.

Landon’s plans changed earlier this month after Harrison County School District Superintendent Mitchell King informed her that she needed to dress as a boy during the graduation ceremony, and not in a dress and heels as she’d planned. (Landon’s parents requested that she be identified by her first name only to protect her privacy.) After a federal judge on Friday denied a motion filed by the American Civil Liberties Union on her behalf demanding that she be allowed to wear her dress, she decided not to attend.

Landon had been out as a trans girl at her high school for four years and told me her classmates were in her corner. But ultimately she decided not to walk, because she did not want to attend an event that “does not support me,” she said. “There was no care; there was no compassion. It felt disrespectful,” she said.

But at the Capitol, there was no shortage of love and support. This prom was created by four kids—Daniel Trujillo, 15; Libby Gonzales, 13; Grayson McFerrin, 12; and Hobbes Chukumba, 16—with the help of some adult organizers as a way of celebrating being trans.

Left: Quetzal Gonzalez, 16, escapes the heat by eating an ice pop under a tree. Right: An attendee holds up a sign outside the U.S. Supreme Court after the Trans Youth Prom. Two hundred trans youths and their parents, as well as trans adults, protested outside the Supreme Court, where the words Equal Justice Under Law are etched above the entrance.

After exiting a bus in front of the Capitol Reflecting Pool, the kids and teens marched in their formal wear down a grassy runway flanked by cheering organizers, parents, and supporters who held up trans and gender-nonbinary flags and signs that read Trans kids have always existed, Trans youth are powerful, and Celebrate trans joy. The youth entered the party, dance music already blasting, through a large arch made of color-changing glass topped with the words You are loved.

Unlike a typical high-school prom, the event also included teens that had already completed high school. Alongside the drag queen Stormie Daie—the event’s emcee—they took turns showing off their moves inside a dance circle to hits by Lizzo, Lil Nas X, Madonna, and others. Occasionally, they would duck into the shade of nearby trees or chat and take pictures with family and friends.

Harleigh Walker, 16, and her father, Jeff Walker, in front of the Capitol Reflecting Pool. The Walkers traveled to Washington, D.C., from Auburn, Alabama, to attend the event. Left: Willow Soto holds a trans flag and flowers at the steps of the Supreme Court. Right: Landon holds the trans and gender-nonbinary flags next to her mother, Samantha. Landon decided not to attend her high-school graduation after she was informed that she would not be able to wear a dress to the ceremony. Many of the youths who attended traveled with their parents from hometowns where their gender identity is affirmed and embraced. Some came from states where politicians have been debating and legislating the details of their life.

Many of the youths who attended had traveled with their parents from hometowns where their gender identity is affirmed and embraced. Some came from states where politicians have been debating and legislating the details of their life—whether they can receive transition-related medical care, for example, or compete on sports teams that match their gender identity. In 2023 alone, more than 500 bills that would restrict the rights of transgender people have been introduced. (More than 70 of them have passed so far.)

Attendees of the Trans Youth Prom marched from the Capitol Reflecting Pool to the Supreme Court. In 2023 alone, more than 500 bills that would restrict the rights of transgender people have been introduced.

Left: Hildie Edwards walks through a decorative gate at the Trans Youth Prom. Right: The drag queen Stormie Daie, who served as the Trans Youth Prom’s emcee, walks through a large arch made of color-changing glass.

Michelle Callahan-DuMont and her husband, Andy DuMont, flew with their 9-year-old daughter, Violet, from Tucson, Arizona, to D.C. for the prom. Violet wore a sequined gold-and-blue dress that she told me she’d bought at Dillard’s. Her favorite music to dance to is techno, she said. As Michelle told me, “We’re always talking about the sad things; we’re always talking about the scary things, talking about maybe having to move out of state. And so for this weekend, we’re just having fun.” She said that during a dinner for the event the night before, Violet had told her parents: “This is the best day of my life.”

Zoé Anspach at the Trans Youth Prom on Monday To attendees, the happiness on display at the Trans Youth Prom was, in itself, an act of protest.

The choice of prom, a quintessential coming-of-age milestone for American kids, was deliberate: a message that lawmakers can’t take away people’s childhoods, Chase Strangio, one of the event’s adult organizers and the deputy director for transgender justice at the ACLU, told me. “This is trans people defining their joy on their own terms, coming together to say, ‘Enough. We don’t need you to debate us any longer. We know exactly who we are.’”

After the speeches and dancing, about 200 people in attendance marched down Constitution Avenue, chanting and cheering to music, before stopping at the steps of the Supreme Court. Underneath the words Equal Justice Under Law etched on the front of the high court, they chanted: “Trans rights are human rights!”

Left: Violet DuMont, 9, traveled with her parents to D.C. from Tucson, Arizona. Her mother, Michelle Callahan-DuMont, said, “We’re always talking about the sad things; we’re always talking about the scary things, talking about maybe having to move out of state. And so for this weekend, we’re just having fun.” Right: Prom attendees march to the Capitol. The group protested anti-trans legislation with banners and signs outside the Supreme Court.

No virtue resists cultivation like forgiveness; it grows in the wild. For Sarah Gregory, a middle-aged mom working for a substance-abuse treatment center in Frederick, Maryland, it arose from a blaze of old pain. Gregory, having been through years of addiction and recovery, has learned all about the cathartic power of letting go. But early in the fall of 2020, she still so vehemently hated the man who had murdered her grandmother Dorothy Epps in Alabama nearly 20 years prior that she couldn’t so much as say his name, even in prayer. She had been furious at him for so long, she told me, “I was having trouble remembering the good things about my grandmother.” All of the memories were stained by anger.

There was no question of guilt in Epps’s case. By the time Gregory was nearing her breaking point in 2020, the killer had already given an account of his crime. James “Jimi” Barber, a contractor and erstwhile boyfriend of Gregory’s maternal aunt, had been working on Epps’s house in the spring of 2001. He was also, at that time, nursing a fierce addiction. By his own dim recollection, Barber said in a 2012 court hearing, he had smoked “hundreds of dollars’ worth” of crack cocaine, drunk at least a case of beer, and taken a handful of prescription pain pills before he arrived at Epps’s home on the night of the murder. What he remembered from that point was, he said, hazy; he could clearly recall being inside the house, and picking up a hammer. Barber narrated his immediate horror at what he had done, how he had recoiled from his own image in a mirror moments after the crime. He said he didn’t know why he had struck Epps. It had just happened.

And then, one day in the autumn of 2020, Gregory was driving, and a Bruce Springsteen song—“Letter to You”—came on the radio, and she knew what she had to do. She wrote a letter to Barber, who was by then on Alabama’s death row. Her letter began haltingly, but with purpose. She led with her loss.

[Elizabeth Bruenig: Dead to rights]

“Before May 2001, you were part of our family,” she wrote. “You saw firsthand how close we all were and how we were held together by one woman … She was strong, graceful, filled with compassion and love, she forgave and saw the best in everyone.” When Barber killed her grandmother, she said, he murdered “our matriarch, my best friend, my confidant, the woman who loved me (and everyone) unconditionally. I lost my hero that night and I lost her in the most horrible way imaginable.” After the crime, she said, she had abused drugs to avoid facing her grief. In the process of getting clean, she had devoted herself to “helping the next person, being there when anyone needs me, and loving unconditionally,” like her grandmother had. And she had come a long way in practicing forgiveness, she said, but Barber had been the exception.

That was changing, even as the letter unfolded. “The internal struggle that has eaten me alive all these years has to end … now,” Gregory went on. “I am tired Jimmy. I am tired. I am tired of carrying this pain, hate, and rage in my heart. I can’t do it anymore. I have to do this and truly forgive you.” She hoped that Barber had already asked God and her grandmother for forgiveness, and that the entreaties had yielded some comfort for him. “I pray that when you answer to God you have peace and acceptance in your soul. I pray that when you see Grandmamma again, she embraces you and tells you it is OK … I forgive you Jimmy. I forgive you for everything you did.” She wished him well, and encouraged him to try to help others. And if he didn’t write back, she said, she would understand. She had no expectations about how her letter would find Barber, or how he might respond.

She put her letter in the mail.

Barber is from Winstead, Connecticut, and sounds like it, a gravel-voiced but amiable Yankee calling from a place where most guys sound real southern: Holman Correctional Facility in Atmore, Alabama. The state plans to kill Barber next month despite the fact that Alabama botched the last three executions it attempted. Still, the main thing Barber wanted to tell me about when we spoke on the phone one spring afternoon was the day he received Gregory’s letter.

“I broke down and started crying,” Barber said. “I thought it was bad. I thought they’d gloat and say, ‘You’re gonna get what’s coming to ya.’ I thought it was gonna be bad and the letter started out like that.” But as he kept reading, Barber said, “it brought me to my knees.”

He wrote Gregory back. “Dear Sarah, Receiving your letter was the single most edifying, uplifting moment that I have experienced, short of October 6th, 2001, when I forced the county jail to be baptized for the remission of my sins into the death & resurrection of Jesus Christ.” It had been a pivotal moment for Barber, as he went on to explain. “I did not pick up the bible to seek out God or get out of jail, or anything of the sort,” he said; rather “it was, and I’m ashamed by this, boredom.” With the jailhouse TV on the fritz and only one book a month passing through his hands, Barber decided to read the good book to pass the time. He would read for hours, he said, and once he had read it the first time, he read it again and again and again. “I’m not going to tell you I saw doves ascending or anything of that kind,” he told Gregory, “but there was a definite change before I finished.” The Bible, he wrote, had saved what was then his “worthless life.”

[Elizabeth Bruenig: Not that innocent]

“I know you didn’t write the letter to hear me say ‘I’m sorry,’” he wrote, turning to the miracle of Gregory’s forgiveness, which he did his best to witness: “Sarah, sorry could never come close to what is in my heart & soul. The self loathing, shame, shock and utter disbelief at what took place at my hand almost overcame me. If not for God’s grace I would be gone.” The only thing that had kept him from suicide, he said, was that he had no clear recollection of committing Dorothy’s murder. “I don’t think I could tell you anything that would explain or enlighten. There is no explanation. I loved Dottie. Loved her with all my heart. Still do.”

Barber told Gregory he had decided early on not to become “a convict,” that no matter how he left prison, “either on my feet or in a body bag, I was going to be a better man than when I arrived.” His record on the inside, he said, was spotless. He had spent nearly two decades under a death sentence, trying to bring men to Christ.

How did it feel to be forgiven? Barber strained to describe it. “Receiving your letter caused me to break down and sob for several long minutes. You sweet wonderful person! I can’t tell you how much that means to me that you have that kind of spirit in you … I’m so glad you found the grace and strength to write.” He wished her well and placed himself forever in her debt, with only a hope spared at the end of his long letter that Gregory might write back.

When Gregory opened his letter, she told me, she “could feel those feelings of anger and resentment coming off of me.” She set to work on a return letter. “You have freed me,” she wrote back in September 2020. “Receiving your letter was the final piece of freedom. The weight was lifted when I forgave you in my heart, but your response back brought me indescribable freedom and release. I have no anger … zero. I feel as if a thousand pounds were lifted from my soul. I cannot thank you enough. I am sorry that it took me so long.”

Reading their correspondence put me in mind of how dull and ordinary my daily exchanges are, the ticktock of friendly banter and household chatter. These people had experienced something profoundly, transcendently emotional; there, where the most justified anger and hatred had been, was something growing that looked like love. “It was all for nothing,” Gregory wrote of her formerly hard feelings, “but now, we move forward. I hope forward will be continued communication for us.”

[Read: A prison lifer comes home]

They began to talk on the phone. “It’s a pretty cool relationship,” Gregory told me. They talk about Gregory’s life, her son, the Lord. Gregory told me that they sometimes talk weekly, sometimes monthly. Barber looks forward to their conversations with happy anticipation. “I love that girl more than I love anybody else in this world,” he told me. “I love her more than anyone else on this planet.” Gregory had possessed something he needed—her forgiveness—which she had given to him freely, and this act of charity had forged a bond between them. The way Gregory remembers her grandmother now, she told me, is how she chooses to remember her.

They haven’t discussed his execution. Barber tells me he isn’t afraid, and I don’t detect any bravado. He’s been in pain for a long time—for the past 12 years, he’s needed a hip replacement. But more than that, he’s at peace. Most Christians who await the afterlife only hope for forgiveness, but Barber has experienced it here on earth. “They can’t threaten me with heaven,” he likes to say.

But if anyone knows anything about the bracing joy of forgiveness, it’s Gregory, and what she feels at the prospect of Barber’s execution is only despair. “I don’t want it to happen,” she told me. “I don’t … I don’t want to see it done.” She will likely attend with her family, “but it will be hard. I spent so long believing in ‘an eye for an eye’—I’ve changed,” she said, but some relatives of hers feel differently, which she understands. “It’s a really hard one.”

The proceeds of vengeance are typically greater in the criminal-justice system than the proceeds of forgiveness. In its communications with the media concerning last year’s string of botched executions, Alabama has repeatedly insisted that it is acting on behalf of victims’ families. Yet the state executed Joe Nathan James in July 2022 over the vocal protest of his victim’s family. It is in the nature of American justice that anger can end a life, yet forgiveness cannot necessarily save one. But then again, maybe it already has.

North Carolina’s Republican lawmakers overrode a veto by Democratic Governor Roy Cooper last night, enacting a ban on most abortions after 12 weeks of gestation. The ban will take effect in July.

The Old North State has frequently offered a preview of new currents in American conservatism over the past decade, hosting skirmishes about gerrymandering, restrictive voting laws, and spurious fraud claims before they became national issues. Now it could be setting a model for the nation on abortion battles too. Unlike in other, more solidly red states where GOP politicians have aimed for total or near-total bans on abortion, North Carolina Republican lawmakers opted for a law that would further restrict such procedures but allow most to continue. Under current law, abortions are legal up to 20 weeks.

Cooper and Democrats in the state fiercely opposed the law, and the override will make abortion central to the state’s elections in 2024, when North Carolina will see a heated contest over the governorship and is expected to be a presidential battleground. Those races will test whether voters in a closely divided state view the 12-week ban as a reasonable compromise, or revolt in the same manner as voters in states that have passed or attempted to pass more stringent laws.

[David A. Graham: The state election that could change abortion access in the South]

Yesterday’s vote overriding the veto was the culmination of a dizzying series of events. In November, Republicans gained seats in the General Assembly, nearly establishing a veto-proof majority but falling just short. Cooper and other Democrats placed his veto—especially his power to veto restrictions on abortion—at the center of the Democratic messaging during the election.

“I’m not personally on the ballot. My ability to stop bad legislation is. The effectiveness of the veto is on the line,” Cooper told me in October. If Republicans went on to win supermajorities in November, he warned, “there will be extreme legislation on abortion passed.”

After the votes were counted, Democrats managed to deny Republicans a veto-proof supermajority in the state House by a single vote. But in April, State Representative Tricia Cotham, a Charlotte-area Democrat, shocked the state’s political class by switching to the Republican Party. The reasons for Cotham’s switch remain obscure. She’s the scion of a Democratic political family, and speculated reasons for her jump include personal pique and the lingering effects of long COVID. Whatever the reason, Cotham’s switch gave Republicans supermajorities in both houses and paved the way for abortion restrictions.

In January, Cotham joined other Democrats in sponsoring a bill to codify Roe v. Wade into state law. (In the GOP-controlled General Assembly, that bill was never anything more than a gesture.) Yet after her party switch, Cotham voted for the Republican abortion bill, which was designed in part to garner her vote as well as the support of other caucus moderates.

Cooper, other Democrats, and pro-abortion-rights groups rallied furiously against the bill. They hoped they might be able to pressure one or more of a handful of Republicans in swing districts to vote to sustain the veto, but when the Senate and then the House took up the override yesterday evening, Republican leaders kept their ranks together.

The new law makes North Carolina a pioneer for a compromise approach to the abortion issue—one that could defuse the issue, but could also fail to satisfy either side of the debate. As The Washington Post’s Caroline Kitchener and Rachel Roubein report, “It is the first new abortion ban to pass since the fall of Roe v. Wade that does not outlaw all or most abortions, effectively allowing roughly 90 percent of abortions to continue.” As states across the South have restricted abortion, North Carolina has become a magnet for women seeking abortions from all around the region, as Cooper emphasized to me in October.

[Read: The abortion absolutist]

Even with the new restrictions, North Carolina will be among the more permissive southern states. Kentucky, Tennessee, Alabama, and Mississippi all ban abortion in almost all circumstances. Florida recently passed a six-week ban, the same as Georgia’s. South Carolina’s law remains in flux after the state supreme court blocked a six-week ban, and a bipartisan bloc of female senators has resisted strict measures.

Republicans have sought to portray the 12-week law as a reasonable, “mainstream” compromise. The law includes exceptions for rape and incest up to 20 weeks, and for fetal life-limiting anomalies up to 24 weeks. But Democrats hope that even this bill will go too far for many voters ahead of the 2024 election. “North Carolinians now understand that Republicans are unified in their assault on women’s reproductive freedom and we are energized to fight back on this and other critical issues facing our state,” Cooper, who is not eligible for reelection in 2024, said in a statement last night.

The likely Republican candidate for governor, Lieutenant Governor Mark Robinson, is a strident abortion opponent, and Democrats hope that the extremity of his position will help them hold the governor’s office. The state has consistently voted for Republican presidential candidates except in 2008, when Barack Obama won the state, but Democrats see the state as winnable in 2024, and will seek to make the campaign a referendum on abortion rights.

Whether voters endorse Republicans’ attempt at a more moderate path or punish them at the polls, the result is likely to offer an indicator of the post-Roe politics of abortion in other purple states around the nation.

On Monday, a team of four journalists at AL.com won the 2023 Pulitzer Prize in Local Reporting for its investigation of a local police force in Alabama. In an unusual achievement, two members of the award-winning team were a father and a son—John and Ramsey Archibald. The Atlantic asked them to write about what it’s like to be close colleagues with a family member, and how their perception of each other changed in the workplace. They were asked not to share their essays with each other before submitting them. Here is what they wrote:

– Chris Ip

If there’s any philosophy, any core belief to inform my madness in 37 years as a reporter, it’s that everyone has a story. It’s a gift when people are willing to reveal theirs.

In 2015, I set out on an experiment to prove all of that. I crisscrossed my state, trusting that I could find 31 Alabamians with 31 worthy stories to tell in 31 consecutive days. I came back to Birmingham with powerful stories. I returned with a sore back and swollen knees. And I came home to a new co-worker.

My son Ramsey Archibald, my middle child—after Drew and before Mamie—had been hired at the company where I work, Alabama Media Group, which publishes AL.com. When I set out on my journey, I thought that Ramsey had agreed to take a job at a small but respected paper nearby. But his plans changed. When I got home, he had a desk near mine. I was out gathering other people’s stories and didn’t know my own.

I was happy for Ramsey—I think. Watching your kid go into journalism is like hearing he wants to rappel into a volcano to rescue a puppy. Sure, there is pride, because I believe the work is crucial. Journalism is hard, but what isn’t these days?

However, I also thought of more personal issues: Would he get heat from trolls online because of his last name? Would people inside or outside the office assume that he got the job because of me? If I got snippy with the boss—again—would he suffer? I wanted him to succeed or fail on his own merit, and to understand that he owns both, just as he owns his college degrees and his work product and that uncanny punning ability. (He is truly an idiom savant.)

I did not offer much advice to him, as I recall—“be you,” maybe, which is both true and useless. But I knew him too well to suggest too much. I’d seen him at his best and his worst, and I had seen him come through both with a head clearer than my own. I’d seen him stuff peas up his nose. I’d witnessed his performance at the awkward elementary-school recital that made him realize he hated playing piano. I’d watched him ace his college-admissions test but flunk his high-school graduation exam. (He’d heard it couldn’t be failed. He set out to prove them wrong.)

I’d seen him, on a court playing in Birmingham’s prestigious Old Man Hoops basketball league while still in his 20s, yell, “Make better decisions” to much older players, including a renowned lawyer, an internationally known medical researcher, and a former Southeastern Conference tight end.

So I didn’t know how this work relationship would go. I just trusted.

And then I didn’t think of it much over the past eight years. We worked together occasionally. He is our data reporter at AL.com—the same job I held long ago. Ramsey built databases and smashed them together to point toward stories. He took numbers and turned them into graphics that people understood. When my colleague Ashley Remkus and I began looking at predatory policing in Alabama, those numbers led the way. They made vivid the outrageous results of a rogue police force in Brookside, Alabama.

This week, the Pulitzer Prize board awarded me, Ashley, Ramsey, and the investigative editor Challen Stephens the Pulitzer Prize in Local Reporting. There can’t be a long list of parents who share something like that with a child. I know of none.

Which might be why I did not expect the complex emotion that came with the honor. Ramsey is my son, for whom, as for all my children, I would die. Perhaps it took that moment for me to also see him as a great journalist in his own right. I once thought he was just a part of my story. But he is his own.

— John Archibald

As a kid, I saw my dad’s face on the front page of The Birmingham News three times a week. People stopped us in grocery stores to talk about his latest column or to tell him they were big fans. My siblings and I would use the time to sneak candy bars into the cart. Later, when I was in journalism school, professors would gush when they learned who my father was, and ask if he’d mind coming to speak to our class. He always made time.

These moments were chances to see the character I thought he was playing. There was “John Archibald,” and there was “Dad.” John Archibald was fearless, doggedly chasing down stories. He’d talk to anyone, knock on any door, keep digging even when there were threats against him.

Dad, meanwhile, got nervous ordering fast food from the drive-through. He didn’t like calling the doctor to schedule appointments. He sang along with whatever Disney movie or pop songs his children were currently into, painted our bedroom walls with characters from our favorite shows, taught us poker and archery and how to cook. He loved us unconditionally.

When I eventually took a position at AL.com, I was nervous, because I didn’t know what working with John Archibald would be like. Besides, I didn’t want people to think that I’d been hired because of my name. And I’d be naive if I said that the family name hasn’t helped me. I knew I’d have to work harder than most people to prove that I was worth keeping around.

Working with John Archibald, it turns out, is easy. We’ve teamed up on vital projects such as the one that won Pulitzer, Polk, and Hillman prizes this year, and on more fun ones, such as a cartoon history of Alabama. The working relationship we’ve formed is natural. I can check him, or compliment him, in ways that our other colleagues cannot. He is often more serious at work than he is at home, but I’d like to think that I’m able to bring out some of his silly side. Still, it took a while, for both of us. He was at times distant—I think because we shared the same fears. He didn’t want co-workers thinking he was doing me any favors.

Yet eventually, the man who taught me his patented turnaround jump shot on the blacktop at my elementary school also taught me how to write a public-records request, and how to concatenate data fields in Excel. I’ve realized that he’s been teaching me much more—compassion, curiosity, work ethic—since before I knew who John Archibald was, when there was only Dad. Now I know that they are the same person. They always have been.

— Ramsey Archibald

This is an edition of The Atlantic Daily, a newsletter that guides you through the biggest stories of the day, helps you discover new ideas, and recommends the best in culture. Sign up for it here.

A verdict against a sexual abuser and the indictment of a con-man fabulist are causes for optimism. But the fundamental indecency of the new American right marches on.

First, here are three new stories from The Atlantic:

An ominous warning to the E. Jean Carroll jury Your next mosquito repellent might already be in your shower. What Michael J. Fox figured out

A Tempered Celebration

People who have polluted the waters of American politics have had a bad few weeks. Another gang of seditionists was found guilty of plotting against the United States. Donald Trump was found liable for the sexual abuse and defamation of E. Jean Carroll. And one of the weirdest phonies ever to bumble his way into a congressional seat, George Santos, has been booked by the Justice Department for a long list of alleged offenses. (He has pleaded not guilty to all of them.)

Unfortunately, I’m here to rain on your parade, because the struggle to restore basic decency in politics is still mostly a rearguard action.

But first, let’s drink in the good news that there is still some accountability for wrongdoing. The Justice Department secured yet more convictions for seditious conspiracy, this time against three leaders of the Proud Boys and their former chairman, Enrique Tarrio, who now joins the previously convicted Oath Keepers founder, Stewart Rhodes, as another walking example of the banality of evil. The government asked that Rhodes get 25 years in federal prison. For a man already in his late 50s, that sentence (if levied) basically amounts to “from now on.” (Attorneys for Rhodes, Tarrio, and the three Proud Boys leaders have indicated that they plan to appeal the verdicts.)

Back in January, George Santos’s arrival in the People’s House dented my already shaky faith in the People. Santos, however, has finally been ensnared by his own prevarications. As my colleague David Graham wrote today, Santos might have been better off losing and remaining just another unknown flake who took a run at elected office, but like so many people in the age of Trump, his thirstiness brought him both fame and legal attention. Santos remains a free man, but only because three unnamed people have put up half a million dollars of bail money while he awaits trial for 13 federal charges.

And justice, of a sort, snared Trump himself when he was found liable for sexually abusing and defaming E. Jean Carroll. Trump’s defenders, including his lawyer (who says that Trump plans to appeal the verdict), are emphasizing that the jury declined to affirm the claim of rape, but they are carefully not mentioning that this decision may have been colored by some confusion about how to apply the term rape. Trump’s own deposition probably helped sink him, and it provided a reminder that our 45th president is a surly, smug child who never admits to a moment of regret or responsibility.

One might hope that Trump’s loss in New York would lead him to slink away in shame, but we now live in post-shame America. Instead, Trump will sit for a town hall on CNN tonight, where he will field questions as if he is a normal person running for office instead of a sexual abuser who incited sedition and violence against the government he is once again seeking to control.

Trump, of course, has the self-awareness of a traffic cone, and he is seemingly incapable of remorse. But CNN’s decision to move ahead with the event, as if nothing has happened, is disappointing. A more defensible position would have been to scrap the town-hall format and tell Trump that he is still invited to sit, one-on-one, with a CNN reporter. To present him to voters as just another candidate, however, is the very definition of normalizing his behavior.

I understand why CNN, as a journalistic outlet, would give a town hall to every candidate. Trump is the leading contender for the GOP presidential nomination, and he is by definition newsworthy. (I will be watching, and I will likely write about it, so I am in something of a glass house here myself.) But Trump has just been found liable for a hideous act. This feels, to me, nearly as distasteful as if a network were interviewing O. J. Simpson on his views about the future of professional sports right after his loss in civil court to the families of Nicole Brown and Ron Goldman.

Trump and Santos are clowns, and sadly, we’ve gotten used to them. But their antics have also taken our attention away from the indecent behavior of other public figures. One might think, for example, that House Speaker Kevin McCarthy would be breathing a sigh of relief that Santos is reaching the end of his cringe-inducing political fan dance. One would be wrong. McCarthy, instead, is mumbling his way through fuzzy and shapeless expressions of concern.

Finally, let us temper any celebration of justice with the realization that Senator Tommy Tuberville of Alabama is holding up nearly 200 promotions of senior U.S. military officers because … well, for a lot of reasons, apparently. Tuberville’s hold began weeks ago, when he objected to the Defense Department’s policy of paying for the travel of service members seeking an abortion. (Tuberville apparently thinks that if you’re a member of the military, and you drew the short straw of a deployment to a state whose laws on reproductive health care have been sent back to 1972, the U.S. government should not enable your interstate travel.)

Tuberville now has a new beef with the Pentagon: The senator from Alabama is upset that the U.S. military would like to prevent white supremacists from joining its ranks. In an interview with a Birmingham public-radio station, Tuberville was asked if he believes that white nationalists should be allowed to serve in the military. Referring to the Biden administration, Tuberville answered, “They call them that. I call them Americans.”

He went on to explain, for some reason, how the January 6 insurrectionists were mostly good people:

There were probably a hundred of them that came in, broke windows and broke doors that should have been locked up. That’s not how we do it in America. But there were hundreds of thousands that didn’t come in, outside, that were true Americans that believe in this country. But right after that, we, our military and Secretary Austin, put out an order to stand down and all military across the country, saying we’re going to run out the white nationalists, people that don’t believe how we believe. And that’s not how we do it in this country.

As it happens, I was a Defense Department employee when Austin issued that order, and I participated in that stand-down. It was a pretty anodyne event, and I was actually disappointed at the time that it wasn’t more forceful and more focused on the growing problem of extremism in the ranks. But even this watery response was too much for Tuberville’s fragile sensibilities.

(Tuberville, however, did have a reaction to the Carroll trial in New York. He said the verdict “makes me want to vote for [Trump] twice.”)

The cause of justice has advanced over the past few weeks. But the cause of decency is still under bombardment from people who have lost any sense of shame, while more reasonable people remain apparently unable to exercise the kind of moral judgment and leadership that should exile extremists, frauds, and abusers from the public square—and especially from offices of public trust.

Related:

George Santos would have been better off losing. The astonishing E. Jean Carroll verdict

Today’s News

Federal prosecutors unsealed an indictment charging Representative George Santos with 13 counts, including money laundering, wire fraud, making false statements to the House of Representatives, and stealing public funds. He has pleaded not guilty to all charges. Advisers to the FDA voted that the benefits of an over-the-counter birth-control pill would outweigh the risks. The federal agency is expected to decide this summer whether to approve such a pill. The Labor Department reported that although rates remain high, inflation continued cooling in April, marking the slowest pace of price increases in two years.

Dispatches

Up for Debate: Conor Friedersdorf considers responses to the tragic death of Jordan Neely.

Explore all of our newsletters here.

Evening Read

Photo-illustration by The Atlantic. Sources: Taylor Hill / Getty; Philip Pacheco / Stringer / Getty.

Elizabeth Holmes Isn’t Fooling Anyone

Elizabeth Holmes isn’t fooling anyone. Well, almost anyone.

The convicted fraudster and founder of the defunct medical start-up Theranos, is waiting to begin an 11-year sentence in federal prison. She received this punishment for misleading investors about her lab-in-a-box technology, which she claimed could run hundreds of tests on a few drops of blood. In reality, when Theranos’s Edison device wasn’t exploding, it was delivering unreliable results to frightened patients. Holmes’s fall from grace—she was once the youngest self-made woman billionaire—has been described over and over again. But there’s still a little more blood left in this stone.

On Sunday, The New York Times ran a profile of Holmes—which included the first interview she’s given since 2016. The author, Amy Chozick, suggests that she was charmed by Holmes, the devoted family woman. Chozick writes that Holmes is “gentle and charismatic,” and “didn’t seem like a hero or a villain. She seemed, like most people, somewhere in between.” This flattering or at least ambivalent tone was not well received.

Read the full article.

More From The Atlantic

The medical care that helps no one The book-bans debate has finally reached a turning point. Don’t execute people in public.

Culture Break

JOHN THYS / AFP / Getty; Museum of the City of New York / Getty

Read. The Earth Transformed: An Untold History, a sweeping new book from Peter Frankopan on how the climate has changed human society—and how we have changed the climate.

Listen. Steely Dan’s 1974 hit, “Rikki Don’t Lose That Number.” The perfectionist duo is capturing the hearts of a new generation of listeners.

Play our daily crossword.

P.S.

Have you ever heard of Connie Converse? Until yesterday, I hadn’t, but after reading this story in The New York Times, I’m rather fascinated by her. She was one of the earliest singer-songwriters to buck the treacle of 1940s pop: Born in New Hampshire, she dropped out of Mount Holyoke College and became a kind of knockabout folk singer in New York a decade before Bob Dylan showed up. Her music career never took off, and she moved to Michigan, where her brother was a political-science professor. (Oddly enough, I was aware of her brother and his important work, because I have a Ph.D. in political science.)

And then, at 50 years old, she packed up her stuff in her car, said goodbye to her friends, and vanished.

I’m a sucker for this kind of “vanished artist” story, but not, in general, for her kind of music. Still, I looked up her only surviving compilation of recordings here on Spotify. I didn’t expect to find it mesmerizing, and now I think I get why the few people who knew of her thought she was better than Dylan.

— Tom

Katherine Hu contributed to this newsletter.

Elizabeth Bruenig has been named a finalist for the 2023 Pulitzer Prize for Feature Writing. A staff writer at The Atlantic since 2021, Bruenig revealed—in blistering, moving prose—a string of botched executions undertaken by the Alabama Department of Corrections. Her work led to a temporary moratorium on the death penalty while the state investigated its own failures.

Bruenig’s run of groundbreaking coverage began this past summer, when she attended the autopsy of Joe Nathan James, whom Alabama had recently executed. Bruenig reported that James’s body was a testament to what he’d endured: not merely death, but what appeared to have been a brutal, torturous end, his arm sliced in an apparent effort to establish venous access via cutdown—a procedure not allowed by Alabama’s own protocol. Had Bruenig not been present for that autopsy, evidence of the state’s efforts would have soon quite literally been buried.

Bruenig’s reporting on James opened new, crucial lines of reporting. Alabama had previously rebuffed all of Bruenig’s requests to attend executions as press. What it could not deny were requests from death-row inmates themselves, who started listing Bruenig among their personal witnesses. Her stories from the attempted executions of Alan Eugene Miller and Kenneth Smith soon followed.

Read Bruenig’s work on Alabama’s death-penalty failures, and what the state plans to do next.

Dead to Rights

What did the state of Alabama do to Joe Nathan James in the three hours before his execution?

Dead Man Living

What happened when Alabama tried and failed to kill Alan Eugene Miller

A History of Violence

Why does Alabama keep botching executions?

Alabama Makes Plans to Gas Its Prisoners

After a series of botched executions, the state is choosing a path of technical, rather than moral, innovation.

This is an edition of The Atlantic Daily, a newsletter that guides you through the biggest stories of the day, helps you discover new ideas, and recommends the best in culture. Sign up for it here.

Today, The Atlantic’s Caitlin Dickerson won the 2023 Pulitzer Prize for Explanatory Reporting, and two of our staff writers were named finalists. I’ll say a bit more about these journalists’ extraordinary work below.

First, here are four new Atlantic stories that are worth your time:

The billion-dollar Ponzi scheme that hooked Warren Buffett and the U.S. Treasury The wedding trend couples love and guests hate The free-returns party is over. King Charles is going to be disappointed.

A Pulitzer for a Consequential Story

Once again, I am seizing temporary control of this newsletter from Tom Nichols to share with you some exciting news about The Atlantic: Our staff writer Caitlin Dickerson has won the 2023 Pulitzer Prize for Explanatory Reporting for her definitive account of the secret Trump-administration policy that separated migrant children from their parents. And more good news: Staff writer Elizabeth Bruenig was named a finalist for the Pulitzer Prize for Feature Writing, and Xochitl Gonzalez was a finalist for the Pulitzer Prize for Commentary. This is the third consecutive year that The Atlantic has won a Pulitzer Prize, and earlier this spring, we received the National Magazine Award for General Excellence, the top prize of the American Society of Magazine Editors, for the second year in a row.

Caitlin’s story, one of the longest and most complicated pieces of reporting The Atlantic has published across its 166-year history, has its origins in 2017 and 2018, when she was still a reporter for The New York Times, uncovering evidence that the Trump administration was forcibly separating migrant children from their parents. The reporting of Caitlin and others eventually forced the government to admit that the program existed. But, as Caitlin writes, “we knew that the full truth about how our government had reached this point still eluded us.”

Knowing that there was still so much more to uncover, I asked Caitlin to join The Atlantic in order to tell the full truth of this callous policy. She conducted more than 150 interviews over the course of her 18-month investigation, and she reviewed tens of thousands of internal documents—some of them leaked to her, others turned over by the government only after a multiyear lawsuit supported by The Atlantic. Though rebuffed in many of her attempts to reach Trump-administration sources—as well as current staff at the Department of Homeland Security, the Department of Health and Human Services, and the Justice Department—Caitlin persisted and, over time, persuaded scores of them to go on the record. She chased former Trump-administration officials, door-stopping them when necessary. She conducted interviews, unprecedented in their depth, with top Trump-administration officials, including Kirstjen Nielsen, the former secretary of homeland security. She spoke with one of only two on-the-ground witnesses to the separations ever to talk on the record.

Caitlin was able to counter the constant denials, lies, and gaslighting of certain members of the Trump administration by discovering the truth behind their obfuscations. And she cut through thickets of bureaucracy and federal immigration rules to uncover what actually happened—to the point where, incredibly, she sometimes had to explain to certain government officials the origins and consequences of their own policies. From this, Caitlin—with the support and guidance of her editor, Scott Stossel—wrote the definitive narrative of how this cruel Trump-era policy came to be. And she revealed how it would be reinstated if Trump is reelected.

About Elizabeth Bruenig’s work, which has earned her a place in the pantheon of our profession’s greatest investigative journalists: Her reporting has captured the brutal reality of the death penalty in America—and led Alabama to impose a temporary moratorium on executions. I think about Liz’s work the same way I think about Caitlin’s: indispensable, eloquent, brave. Liz’s run of groundbreaking coverage began last summer, when she attended the autopsy of Joe Nathan James, whom Alabama had executed several days earlier. Liz reported that James’s body was a testament to what he’d endured: not merely death but a brutal, torturous end, his arm sliced open multiple times in an apparent effort to establish venous access via “cutdown”—a procedure not allowed by Alabama’s own death protocol. Had Liz not been present for that autopsy, evidence of the state’s efforts would have quite literally been buried.

Liz’s reporting on James’s fate opened dramatic new lines of reporting. Alabama had previously rebuffed all of our requests to attend executions as press. What it could not deny were requests from death-row inmates themselves, who started listing Liz among their personal witnesses. Alabama went to extraordinary lengths to prevent Liz from reporting on this story—not merely by trying to prevent her from witnessing executions, but apparently by going so far as to set up a cellphone-jamming tower outside Holman prison to prevent inmates from texting with her on the phones they hid from prison authorities. Liz’s stories are worth reading and rereading. Her reporting will change the world.

And there’s Xochitl Gonzalez, whose writing catalogs with moral force, intimate eloquence, and unexpected humor the ways in which inequality shapes identity, and how gentrification warps the physical and emotional terrains of our lives. One of Xochitl’s particular talents is bringing to life economic and political issues such as gentrification. She is brilliant at describing what gentrification feels like. It’s not just about rent and real estate; it’s more personal and visceral than that. In “Why Do Rich People Love Quiet?,” she describes gentrification as a sonic phenomenon—silence as something expected from and imposed on working-class communities by wealthier newcomers.

Days like today remind me that I work with the most talented corps of journalists in America. We’re grateful for your support.

Related:

Caitlin Dickerson: “We need to take away children.” Elizabeth Bruenig: Dead to rights Xochitl Gonzalez: Why do rich people love quiet?

Today’s News

President Joe Biden will meet with House Speaker Kevin McCarthy and other congressional leaders this week about the debt limit. A driver allegedly plowed his car into 18 pedestrians at a bus stop in Brownsville, Texas. Iran executed two men for blasphemy. Last year, the number of executions in the country rose by 75 percent.

Dispatches

Work in Progress: Annie Lowrey and the sociologist Jacy Reese Anthis discuss whether AI can be sentient. Up for Debate: Readers weigh in once more on the gender debate.

Explore all of our newsletters here.

Evening Read

Illustration by Juanjo Gasull

My High-School Haters

By Paul Greenberg

One spring morning, high-school students started tweeting at me.

“@4fishgreenberg, when is the last time you have eaten Bluefin Tuna?”

Another wanted to know about the “most unique places you have been on your studies/fishing trips.” A science teacher had assigned my book Four Fish and found me on social media. She’d had the clever idea that it might be fun for her students to “engage” with a real author online. Because a whole classful of book purchases makes my publisher happy, I dutifully tweeted back.

But then the bad tweets came.

Read the full article.

More From The Atlantic

Mob justice at the Supreme Court Why Biden’s new school-sports rule matters The criminal-justice system and the election are not going to get along.

Culture Break

Claudette Barius / HBO

Read. “Disaster,” a new poem by Tsitsi Jaji.

“He hugs the loving tree, ever literal. / My first betrayal was birthing him.”

Watch. The most recent episode of Succession (streaming on HBO Max), which highlights the sad, sad life of Tom Wambsgans.

Play our daily crossword.

Katherine Hu contributed to this newsletter.

May 8, 2023—The Atlantic’s staff writer Caitlin Dickerson has won the 2023 Pulitzer Prize in Explanatory Journalism for the September 2022 cover story, “‘We Need to Take Away Children,’” an exhaustive investigation that exposed the secret history of the Trump administration’s policy to intentionally separate migrant children from their parents; the incompetence that led the government to lose track of many children; and the intention among former officials to separate families again if Trump is reelected. Her reporting, one of the longest articles in The Atlantic’s history, laid out in painstaking detail one of the darkest chapters in recent U.S. history, exposing not only how the policy came into being and who was responsible for it, but also how all of its worst outcomes were anticipated and ignored. The investigation was edited by national editor Scott Stossel.

Two other staff writers were Pulitzer finalists: Elizabeth Bruenig in Feature Writing, for her relentless and groundbreaking reporting into Alabama’s deeply troubling incompetence on death row, which prompted a temporary moratorium on executions in the state, and Xochitl Gonzalez in Commentary, for her writing in the magazine and in the Brooklyn, Everywhere newsletter that the Pulitzer Board wrote “explore how gentrification and the predominant white culture in the United States stifle the physical and emotional expression of racial minorities.”

This is the third Pulitzer Prize for The Atlantic, and the third consecutive year in which the magazine has won the prize. Staff writer Jennifer Senior won last year for her cover story, “What Bobby McIlvaine Left Behind,” which looked at one family’s heartbreaking loss in the 9/11 attacks and their struggle to move on. Ed Yong was awarded a Pulitzer in 2021 for his defining coverage of the coronavirus pandemic and how America failed in its response to the virus.

In awarding Dickerson journalism’s top honor, the Pulitzer Board cited: “A deeply reported and compelling accounting of the Trump administration policy that forcefully separated migrant children from their parents resulting in abuses that have persisted under the current administration.”

The Atlantic’s editor in chief, Jeffrey Goldberg, wrote to staff: “This is a wonderful moment for everyone, but particularly for Caitlin, Liz, and Xochitl. There is much to say about their talents, and the talents of their editors. This is also a very proud moment for all of you who worked on these stories. Caitlin’s piece, one of the longest and most complicated stories The Atlantic has published across its 166-year history, required the unflagging work of a good portion of our comparatively small staff—from the copy-editing and fact-checking teams to our artists and designers and lawyers. Our ambitions outmatch our size, but I’m proud to say that our team rises to every challenge.”

Dickerson’s investigation exposed that U.S. officials misled Congress, the public, and the press, and minimized the policy’s implications to obscure what they were doing; that separating migrant children from their parents was not a side effect of the policy, but its intent; that almost no logistical planning took place before the policy was initiated; that instead of working to reunify families after parents were prosecuted, officials worked to keep families apart longer; and that the architects of the legislation will likely seek to reinstate it, should they get the opportunity. Over 18 months, Dickerson conducted more than 150 interviews––including the first extensive on-the-record interviews on this subject with Kirstjen Nielsen, John Kelly, and others intimately involved in the policy and its consequences at every level of government––and reviewed thousands of pages of internal government documents, some of which were turned over only after a multiyear lawsuit.

The Atlantic’s journalism has helped its readers make sense of the world’s most complicated issues and shined a light on injustices the world over. The magazine earned the top honor of General Excellence at the National Magazine Awards in 2022 and 2023, and was named Digiday’s Publisher of the Year in 2022. This journalistic excellence has been paired with growth across the company, including record subscriber growth for the third straight year; the publication of the magazine’s entire archive, dating back to 1857, online for the first time; the return of in-person events, including The Atlantic Festival in Washington, D.C.; and the launch and publication of the first six books in a new imprint, Atlantic Editions, with the independent publisher Zando, collecting the work of Atlantic writers and editors.

Most Americans were introduced to the Supreme Court’s “shadow docket” in 2021, when the majority declined to block a Texas law that banned abortion in the state after six weeks. Despite the protestations of the conservative justices at the time, the decision foreshadowed the 6–3 decision to overturn Roe v. Wade, the 1973 case guaranteeing the right to an abortion.

[Adam Serwer: By attacking me, Justice Alito proved my point]

Steve Vladeck, a law professor at the University of Texas at Austin and the author of the forthcoming The Shadow Docket, was one of the few legal observers who had been sounding the alarm on the Supreme Court’s use of emergency orders to make sweeping changes to American law outside of public scrutiny and regular procedure. Although emergency orders in time-sensitive cases had long been a part of the high court’s work, in recent years the volume, breadth, and partisan valence of the justices’ rulings in such matters had changed.

The conservative justices’ use of the shadow docket to make rapid, expansive rulings on important matters has since drawn public scrutiny and even criticism from both the Court’s Democratic appointees and Chief Justice John Roberts. Most recently, the Supreme Court stayed a ruling from a conservative judge outlawing the abortion drug mifepristone, an apparent retreat from the Court’s recent aggressive use of the shadow docket.

In his book, Vladeck notes that Justice Samuel Alito has “accused the shadow docket's critics of trying to intimidate the Court and undermine its legitimacy in the eyes of the public.” Vladeck explains, however, that he wrote the book not to delegitimize the Court, “but because I fear that the Court is delegitimizing itself, and that not enough people—the justices included—are noticing."

I spoke to Vladeck about his upcoming book, how the shadow docket has shaped American law, and whether public backlash to the Court’s conduct has had an effect on the justices.

This conversation has been edited for length and clarity.

Adam Serwer: What is the shadow docket? And why should people care?

Steve Vladeck: The term shadow docket is this evocative shorthand that Chicago law professor Will Baude coined in 2015, not as a pejorative, but just as an umbrella term to capture everything the Supreme Court does other than thoroughly explained, merits decisions [on the regular docket]. Will’s insight, which I’ve somewhat shamelessly appropriated, is that a lot of important stuff happens in the more technical side of the Court’s docket—important stuff that affects all of us, that shapes the law and lower courts, and that we sort of ignored at our peril. And what’s remarkable about that is that Will wrote that in 2015. And if anything, the last eight years have actually dramatically underscored just how right he was.

Serwer: How did the shadow docket change during the Trump administration?

Vladeck: It’s common for those who like to defend the Court to say, “There’s always been a shadow docket.” That’s true. The really big shift during the Trump administration is in how the Court used one slice of the shadow docket, what we might call the emergency docket. These are contexts in which a party is asking the Court to step in while a case is working its way through the courts, and either freeze a lower-court ruling or block government action that lower courts refuse to block.

And during the Trump administration, we see the Court intervening far more often, in non-death-penalty cases, where the emergency interventions are having statewide and nationwide effects. And so instead of the Court allowing an execution to proceed or freezing one, you have the Court allowing a Trump immigration policy to be carried out perhaps for three years, or freezing a state COVID restriction. That’s a huge qualitative shift. We also saw the Court doing this a lot more often. So there’s also a quantitative uptick. And all the while, the Court is hewing to its norm of not usually explaining any of these procedural orders. And so the Court is providing no rationale, no vote count, nor even telling us who wrote whatever the Court has said on the subject.

Serwer: How did COVID affect the shadow docket?

Vladeck: First we had the flurry of religious-liberty challenges to stay COVID-mitigation policies. And we saw these especially in blue states, where the claims were that COVID restrictions, insofar as they operated on houses of worship or other religious gatherings, violated the free-exercise clause.

Here we saw the Court’s most aggressive use of the shadow docket, repeatedly intervening—and especially after Justice Amy Coney Barrett replaced Justice Ruth Bader Ginsburg—to block these policies in New York, to block them in California, to block them in Colorado, to block them in New Jersey. The COVID cases pushed the Court to expand the scope of religious-liberty protection in the Constitution entirely through these emergency orders, orders that were usually unexplained and never had the same process as merits cases. And that’s especially telling because all this is happening as the Court has on its merits docket cases that would have given the justices similar opportunities to expand the free-exercise clause.

[Adam Serwer: Five justices did this because they could]

That’s the first way. Then you have all of these election cases, where you have either states that try to make it easier to vote remotely because of COVID or states that don’t and then get sued. So you have an unusual concentration of election-related disputes, where the Court is put in the position of trying to decide what rules should attach to voting as we get closer and closer to the election. And we see, in both of those contexts … we see the Court using these emergency orders to shape policy, oftentimes without making any law. And, you know, I think, perhaps most perniciously in ways that tended to at least appear to favor Republicans over Democrats.

Serwer: Some people would say that the Supreme Court did exactly what should have been done in these religious-liberty shadow-docket cases: They were protecting people’s right to worship. How do you see those cases, and how do you see them having changed the legal landscape as far as religious liberty is concerned?

Vladeck: Reasonable folks are going to disagree about what the free-exercise clause ought to protect. The question is, if the Court is going to change the meaning of the free-exercise clause, should it be doing so through a series of emergency orders, where there hasn’t really been a full opportunity for briefing, where there was no oral argument, where there was really very little opportunity for friends of the Court to weigh in? Should [the Court] be doing this in a context in which they’re only supposed to grant relief, if the rights are already “indisputably clear”—that’s the standard for an injunction pending appeal? Or should they be doing it the normal way on the merits docket?

And so what’s remarkable about the COVID cases is that here’s a context where, instead of just using emergency applications and emergency orders to adjust the status quo, the Court willfully changed the underlying constitutional principles, perhaps added them in ways that we would think are defensible, if not even normally desirable—but in a way that really is not supposed to be what these kinds of procedural orders are for.

Serwer: Did you think that the Texas case regarding Senate Bill 8 and abortion was the first time the shadow docket really started drawing public notice outside of Court watchers and reporters?

Vladeck: Oh, absolutely. And there’s actually some media scholarship that backs this up. There was a study in the Chicago Policy Review that tracked references to the shadow docket in mainstream media outlets, and they skyrocketed after the September 2020 nonintervention in the Texas case. I think it was really the S.B. 8 case that put this on the map.

That attention also produced some fascinating reactions. In response to that public blowback, we saw the first conservative attempts to defend what the Court had been doing, with Alito’s speech at Notre Dame and editorials in The Wall Street Journal. But we also see some of the justices shifting their behavior. There’s this remarkably cryptic, but I think important, concurring opinion that Justice Barrett, joined by Justice Brett Kavanaugh, writes in the main health-care-worker vaccine case, at the end of October 2021. Justice Barrett basically says, Hey, just because you make out your case for emergency relief, doesn’t mean we have to grant it.

In retrospect, I think she was signaling that perhaps she and Justice Kavanaugh were lowering the temperature, and are going to be a little more cautious in when they would vote for emergency relief going forward. That’s borne out by what’s happened in the last 18 months, by how much less often the Court has granted emergency relief, by how much more often we’re seeing some combination of Alito, Clarence Thomas, and Neil Gorsuch dissent from rulings regarding emergency applications.

Serwer: How are the lower courts reacting to the way the Supreme Court has been using the shadow docket?

Vladeck: I think the lower courts are in a bit of a sticky wicket, because in some of these cases, especially in the COVID religious-liberty cases, the Supreme Court has been instructing lower courts that its unsigned, unexplained orders are precedential—and that lower courts are erring, as the Court says in one case of the Ninth Circuit, by not following rulings where there was no majority rationale. So I think the lower courts are largely doing their best, but it’s really hard to know what to do if you are a principled, faithful, lower-federal-court judge, when the Supreme Court historically has said, If we don’t provide a rationale, we’re not giving you precedent to follow, and then the Court acts differently in this context.

I think we’re seeing a bit of a smorgasbord where some lower courts are just following what the Supreme Court has said, and some are just throwing up their hands and saying, Without more guidance from the Supreme Court, I’m just sort of stuck here. That’s perhaps the biggest point on which there ought to be consensus: Leaving aside who wins and who loses, the less the Supreme Court explains itself in this context, the harder it is for the relevant actors, for the lower courts, for the relevant government officials, to understand what their responsibilities are. That should presumably be something we all have common cause in ameliorating.

Serwer: How would you describe the Court’s use of the shadow docket in voting-rights cases?

Vladeck: What we saw in 2022 was a pair of decisions in the Alabama and Louisiana cases where—after pretty exhaustive efforts to take evidence and get to the bottom of the factual disputes—lower courts had said, Hey, states, you’ve got to redraw your maps because the current ones violate the Voting Rights Act. And the Supreme Court, despite these lengthy lower-court rulings, just says, Hey, states, no, you don’t.

That’s especially significant in this particular moment, because between Alabama and Louisiana directly, that’s at least two House seats. There’s also a federal judge in Georgia who said he would have blocked Georgia’s maps but for the unexplained stay in the Alabama case. So that’s three House seats. You know, there’s a New York Times report that suggests that somewhere between seven and 10 House seats might have been directly affected by the Court’s voting-rights cases on the shadow docket in early 2022. That’s control of the House. If all of those districts had been majority-minority districts, I don’t think it’s that remarkable a suggestion that many of them would have been safe seats for Democrats. Instead, they were all safe seats for Republicans. And so right there, you have an argument that unsigned, unexplained orders from the Supreme Court helped Republicans to take control of the House of Representatives.

Serwer: Last week, the Court took up a ruling where a lower-court judge banned the abortion pill, which is the most common way that women today get abortions. What do you make of the Court’s decision there?

Vladeck: There’s so much to say about the mifepristone case. One thing is, in some respects, this is actually more like an old-school emergency application, where you have this remarkable outlier ruling by a lower court. It’s highly possible that the justices just looked at the equities and said, Whatever the right answer is to this case on appeal, we’re not going to disrupt such an important medication while that appeal works its way through the courts, that we’re going to sort of preserve the status quo, first and foremost, and worry about the legal issues later. So in that respect, I think it was actually probably a page out of the older playbook.  

I also think that it’s emblematic of why the shadow docket has become such an important part of any public discussion of the Supreme Court. Because the mifepristone case gets from an injunction, or at least a stay by a district judge, to a pretty important rule by the Supreme Court in two weeks. Ten years ago, that would have been unheard of, and it’s become, to a large degree, de rigeur—you know, the student-loan cases get to the Supreme Court remarkably quickly after they’re filed. Part of why the shadow docket has become so important is because we’re seeing more and more of these lower-court rulings that put pressure on the justices far earlier in cases than they’re used to, with far higher stakes at that stage in litigation than they’re used to.

[Stephen I. Vladeck: The Supreme Court needs to show its work]

If the Court is frustrated with how many of these cases are getting to it in this crazy expedited, record-free posture, the justices have a way of expressing that and saying, This is no way to run a railroad. And instead, what we’re seeing is just one emergency after another, for a Court that as recently as five, six, seven years ago, would maybe have gotten one of these cases a year.

Serwer: Do you think public criticism and internal dissent at the Court over the shadow docket has made a difference?

Vladeck: I do. I mean, I’ll never prove it. But I think it’s really hard to look at the overall data set and compare, for example, the October 2020 term to the last two terms and not see pretty significant shifts in at least how some of the justices are behaving. Not surprisingly, the shifts are principally centered on the three justices in the middle. So Chief Justice Roberts and Justices Barrett and Kavanaugh.

But it’s hard to believe that that’s a coincidence. And it’s hard to believe that the subtle but significant shifts in when the Court has granted emergency relief and how it’s behaving in these cases are unrelated to some of the public criticism, to some of the pushback.

I think that’s an important point unto itself. There’s such a fatalism these days about the idea that the Court is in any way subject to public criticism, responsive to public criticism. To me, the shadow docket might be an object lesson and how maybe it actually is [responsive to public criticism], especially when we’re talking about procedural critiques, as opposed to substantive ones.