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The Supreme Court released a somewhat surprising—and pretty important—decision yesterday. Should it change the way we think about the Court? Before we get into it, here are three new stories from The Atlantic:

The comic strip that explains the evolution of American parenting The new Republican litmus test is very dangerous. Stop firing your friends.

Conservative, Not MAGA

It’s good to be back at The Daily! I spent a lot of time last year writing about candidates trafficking in election denial. Looming above all of my coverage was a case at the Supreme Court that would determine the future of election law and, by extension, American democracy. That case, Moore v. Harper, was decided yesterday. I talked with my colleague Russell Berman, a staff writer on our Politics team, about what the decision means, and whether it shifts the dominant narrative about the Roberts Court.

Elaine Godfrey: Russell! I’m so glad we get to talk about this. Yesterday was a big SCOTUS day. In a 6–3 vote, the Court rejected the independent state legislature theory in a case called Moore v. Harper. What is that theory—and why were people so anxious about it?

Russell Berman: The theory basically interprets the Constitution as giving near-total authority over elections to state legislatures, over and above state courts, election administrators, secretaries of state, and even governors. What this means in practice is that because Republicans have overwhelming majorities in many of the closest presidential swing states, including Wisconsin, Georgia, and North Carolina, the adoption of this theory by the Supreme Court would have allowed GOP lawmakers in those states to overrule or simply ignore election decisions they didn’t agree with.

Democrats believed that Republicans would then have used that power to overturn close elections in 2024, just like former President Donald Trump tried to get his allies to do in 2020.

Elaine: Thanks to Trump, there were all kinds of Republicans denying the outcome of the 2020 election, as well as sowing doubt ahead of the midterms. A lot of those candidates lost in the midterms, though, including Kari Lake in Arizona. Is this SCOTUS decision the final coda on the election-denial fight? Are we finally done with that stuff now?

Russell: Not so fast, Elaine. As Rick Hasen points out at Slate, the Supreme Court’s decision doesn’t totally quash the opportunity for election-related shenanigans in the courts. Although the Court declined to give state legislatures unfettered power over elections, it simultaneously warned state courts that federal courts—including the Supreme Court—could still overrule them on cases involving federal elections. That’s what happened in Bush v. Gore, when a conservative majority on the Supreme Court essentially decided the 2000 election in favor of George W. Bush. And let’s say that in 2024, the Democratic-controlled state supreme court in Pennsylvania issues a ruling on a big election case in favor of Joe Biden. The Court’s decision today served as a reminder that its members could still have the final say.

Elaine: Two Trump-appointed justices, Brett Kavanaugh and Amy Coney Barrett, joined three liberal justices in the majority decision in this case. That felt surprising to me. Was it to you?

Russell: Not entirely. Although both Kavanaugh and Barrett joined the majority overruling Roe v. Wade in the Dobbs abortion decision last year, they have not always joined what is now the Court’s far-right wing in election cases: Justices Samuel Alito, Clarence Thomas, and Neil Gorsuch, who all dissented from yesterday’s decision. Kavanaugh voted with the majority earlier this month in upholding a key part of the Voting Rights Act, while Barrett joined the dissent.

Elaine: So what does this mean for our understanding of the Court at this moment? Is it more liberal-leaning than Dobbs might have suggested?

Russell: It’s a stretch to call it more liberal. But these decisions suggest that there is a limit to the Court’s rightward shift of the past several years. Chief Justice Roberts in particular continues to resist efforts to upend decades of judicial precedent, and he has had some success in persuading newer justices like Kavanaugh and Barrett to join him. If anything, the Court’s decisions over the past few years suggest it’s conservative but not MAGA. Its ruling in Dobbs was a victory for conservatives, but Trump’s own commitment to the anti-abortion cause has wavered. And in addition to this state-legislature ruling, the Court ruled against Trump several times toward the end of his presidency—and, of course, rejected him in his Hail Mary bid to overturn his defeat in 2020.

Elaine: So you’re saying that Democrats shouldn’t start buying those celebrity prayer candles with Roberts’s face on them?

Russell: Only if they also start buying candles with Mitch McConnell’s face on them. Roberts is playing a role similar to the one McConnell has played in the Senate over the past few years. Roberts either wrote or joined several opinions that have been devastating to liberal causes. He’s helped to eviscerate Section 4 of the Voting Rights Act, dramatically expand the scope of the Second Amendment, and limit Congress’s ability to enact campaign-finance regulations. But he’s obviously attuned to public attitudes toward the Court and to that end has tried, with limited success, to restrain the most aggressive impulses of his more ideological colleagues.

Elaine: There are a few other really important cases coming down the pike, including one about college affirmative-action programs and another related to President Joe Biden canceling student debt. If there’s a limit to the Court’s rightward shift, does that tell us anything about how these cases will go? Should progressives plan to be happy?

Russell: Probably not. If the pattern of recent years holds, the relief that progressives are experiencing following their victories in this case and in the voting-rights decision will give way to more anger and disappointment when the Court releases its final opinions of the term. Most legal observers expect the Court to deal a fatal blow to affirmative action after a series of decisions that limited its use in college admissions. And they also believe the Court will rule against President Joe Biden’s effort to unilaterally forgive up to $20,000 in student debt for millions of borrowers.

Related:

The Roberts Court draws a line. The Court eviscerates the independent state legislature theory.

Today’s News

Wildfire smoke from Canada has blanketed large portions of the United States, leading more than a dozen states to issue air-quality alerts. Former President Trump countersued E. Jean Carroll for defamation after being found liable for sexually abusing her. Carroll’s attorney said that Trump’s counterclaim is “nothing more than his latest effort to delay accountability.” Daniel Penny pleaded not guilty in the killing of Jordan Neely on the New York City subway after being indicted on counts of second-degree manslaughter and negligent homicide.

Evening Read

(Illustration by The Atlantic. Source: Getty.)

The Harry and Meghan Podcasts We’ll Never Get to Hear

By Caitlin Flanagan

The Meghan Markle and Prince Harry content farm is facing contradictory supply and demand challenges. On the one hand, Netflix is reportedly threatening that the couple had better come up with some more shows, or $51 million comes off the table. On the other, Spotify has found that the 12 episodes of Markle’s podcast, Archetypes, were 10 episodes too many (the Serena Williams and Mariah Carey interviews were blockbusters, but after that: crickets). And—in a mutual decision! mutual!—it has cut the couple loose from their $20 million deal. Together, the news stories formed a classic example of the macroeconomic principle of too much, too little, too late.

In rapid response to the Netflix needling came word that the couple was working on a possible prequel to Great Expectations, centered on the life of a young Miss Havisham. It was exactly the kind of project you could imagine them dreaming up and an improvement, perhaps, on one of Harry’s earlier pitches, “Jude the Obscure, but in Vegas.”

Read the full article.

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P.S.

I am turning the big 3-0 this summer, and the milestone has triggered a mixture of all the usual emotions associated with aging: relief at having survived this long, despite my clumsiness and bad sense of direction; anxiety about not having accomplished enough; and horror at the fact that I’m edging toward the end of it all. You know, normal stuff. I feel happy but also in need of closure, some sort of commemoration of this moment. To that end, I’m seeking the wisdom of our (older-than-30) readers: What are the best books, articles, poems, or podcasts you might recommend to someone on the precipice of their 30s? What advice would you like to go back and tell your 29-year-old self? I want to hear it all! Email egodfrey@theatlantic.com.

— Elaine

Katherine Hu contributed to this newsletter.

In the space of two weeks, the country witnessed two major announcements from the Department of Justice: the first federal indictment of a former president (Donald Trump) for unlawful retention of classified documents and related acts of obstruction, concealment, and false statements, and a guilty plea by the son of the sitting president (Hunter Biden) to federal tax and gun charges.

The identities of the defendants mark these as highly significant political events. And the responses to both sets of charges tell us a great deal about the competing visions of governance on display in the early days of the 2024 election—one vision that threatens to destroy core principles of American law, and one that seeks to safeguard them.

Take, first, Trump’s reaction to his federal indictment. In his political rhetoric and in the emerging legal arguments in his defense, Trump claims that he did nothing wrong. The inquiry, by virtue of the fact that it was conducted by the Department of Justice in a Democratic presidential administration, is an inappropriate “political prosecution,” full stop. Trump leveled similar accusations of political motivation in response to the news of Hunter Biden’s plea deal, although here Trump’s accusation was one of favoritism, not persecution.  

[David A. Graham: The stupidest crimes imaginable]

Trump has spent years dismissing every investigation into him as a political witch hunt, so this should come as no surprise. But what has more recently become clear is that when he asserts that the charges against him are political, he isn’t actually critiquing the prosecutors for what he claims is their lack of independence, or suggesting that they should behave in a neutral and apolitical fashion. His claims that the inquiries are “politically motivated” are neither pure bad faith nor pure projection (though they may be both in part).

Instead, they are something more sinister and more revealing: a promise—a promise that if allowed to return to office, he will implement a vision of law enforcement in which no separation exists between prosecutors and political leadership, including the president. In the short term, this would mean benefits for Trump and his friends, and punishment for his enemies. But the long-term consequences would be much more dramatic: the abandonment of the core value of equal justice under law.

Viewed in the full context of the Trump presidency and the Trump reelection campaign, Trump’s charge of “political prosecution” seems to be in service of two related and complementary goals. The first is to convince the public that law enforcement and the administration of justice are inherently political, and thus that the charges against him can’t be trusted. There’s some evidence that this is working: A recent ABC News/Ipsos poll found that 47 percent of the public believes that the charges against Trump are “politically motivated.”

The second, related purpose is to begin to prime the public to accept the fundamental changes Trump would like to make to federal law enforcement, and maybe to federal government more broadly, if given the chance. The irony, of course, is that these changes are designed to make law enforcement and government more political. But if Trump is successful enough in destroying the public’s trust and confidence in federal law enforcement, he may encounter little resistance in seeking to radically reshape core features of American governance.

Here the evidence of what Trump would like to do is crystal clear. Trump has explicitly pledged to weaponize the DOJ against political adversaries, telling supporters on the very day of his federal arraignment that he would “appoint a real special prosecutor to go after” President Joe Biden and his family. He’s indicated that in a second term he’d bring back loyalists such as Jeffrey Clark, a key DOJ ally in his efforts to overturn the 2020 election. And he has begun to preview the position that all federal employees should serve at the pleasure of the president, which could mean the elimination of long-standing protections that insulate members of the civil service from politically motivated reprisal or removal.

[David A. Graham: Justice comes for Hunter Biden]

All of this is an extension of what was on display throughout Trump’s presidency. This is a man who, as president, regularly flouted norms of separation between his personal or partisan interests and those of the American government. He was also singularly focused on attacking the career civil service, which he referred to as the “deep state.” He inveighed constantly against the “shadowy cabal” that he suggested was seeking to undermine him, and he worked to weaken standards of independence and nonpartisanship inside the federal government. Late in his term in office, he issued an executive order purporting to create a new federal-employment status, “Schedule F”; had it gone into effect, this order would have allowed political appointees to reclassify large swaths of the civil service in order to bring them under political control.

So when Trump calls these prosecutions “political,” he’s offering a candid account of his understanding of the relationship between the president and federal prosecutors—that federal prosecutors, like all federal employees, are subject to the directive authority of the president, and so Biden must be behind the pursuit of Trump. Trump’s complaint actually isn’t about this as an ordering principle—it’s that at the moment, he isn’t in a position to leverage the power of the state for his personal benefit. This claim may sound startling, but it follows naturally from Trump’s brand of right-wing populism, one that that offers a narrow vision of who is authentically a member of the polity—his supporters—and pledges to both represent and protect that circumscribed population against a shifting “other”: liberals, the media, prosecutors in Democratic administrations. As Trump recently promised supporters, “I am the only one that can save this nation because you know they’re not coming after me, they’re coming after you. And I just happened to be standing in their way. And I will never be moving.”

These views are in profound tension with core features of the American political and constitutional tradition—which since at least the late 19th century has emphasized the importance of nonpartisanship and expertise in the federal government in general, and in law enforcement in particular. But Trump is not alone in dissenting from the consensus. GOP-primary hopeful and Florida Governor Ron DeSantis has suggested that long-standing norms of DOJ independence are inconsistent with the Constitution. Work by Speaker Kevin McCarthy and Representative Jim Jordan on the “weaponization” committee has sought to use congressional-oversight authority to bully and intimidate career officials.

The Trump camp’s response to the news of Hunter Biden’s agreement to plead guilty to two counts of tax evasion, and to accept a diversion agreement to avoid gun charges, is revealing on this score. For years, Trump has fixated on the DOJ’s failure to prosecute Hunter Biden as evidence of political favoritism. Now that Hunter Biden has been charged, and has pleaded guilty, Trump has shifted to accusations that the plea terms are excessively lenient, attributable to—you guessed it—political favoritism. The fact that the investigation and charging decisions were made by Delaware U.S. Attorney David Weiss, a Trump appointee whom Biden asked to remain in office, is immaterial, as is the fact that the FBI is still run by Christopher Wray, who was handpicked by Donald Trump; so is the fact that on many accounts these charges are harsher than those that would have been brought against an individual guilty of similar conduct but with a different last name.

[David A. Graham: This indictment is different]

All of this contrasts profoundly with President Biden’s handling of his son’s legal difficulties. Biden has bent over backwards to abide by essential bipartisan norms of law-enforcement independence and insulation from political interference. His retention of a Trump appointee as the top Delaware prosecutor was clearly driven by a desire to ensure that the Hunter investigation would be carried out by someone he had not chosen. His decision to permit John Durham to complete his investigation into the origins of the Russia investigation was similar, as was his hands-off approach to Attorney General Merrick Garland’s appointment of special counsels to investigate the handling of classified materials by both former Vice President Mike Pence and President Biden himself.

In addition to making these personnel decisions, both Biden and Garland have held their silence on politically sensitive investigations. Biden’s lone remarks about his son’s prosecution pledged love and support “as he continues to rebuild his life.” He has maintained a studied silence on Trump’s indictment, and by all accounts intends to continue it.

In all of this, President Biden has offered, through deeds more than words, a different model of governance. His silence and discretion are admirable, and they grow out of a principled commitment to avoiding any hint of political meddling in sensitive law-enforcement matters. Two strikingly different visions are on offer when it comes to the future of the relationship between law enforcement and politics.

The trouble is, the two visions are not equally apparent. Trump’s vision is on stark display; Biden’s approach is more notable for its lack of action—the refusal to comment, his decision to remain hands-off. Americans have to note these absences as collectively the presence of something else: a demonstrated commitment to a functional system of depersonalized, impartial justice. But Biden’s approach should not be misunderstood as inaction or passivity. It is, rather, an active and considered attempt to preserve the principle that, as Special Counsel Jack Smith put it when announcing the Trump indictment, there is “one set of laws in this country, and they apply to everyone.”