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www.bbc.co.uk › news › world-us-canada-66967877
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There’s an old saying that sometimes it is more important for the law to be certain than to be right. Certainty allows people to plan their actions knowing what the rules are going to be.
Nowhere is this principle more urgent than when it comes to the question of whether Donald Trump’s efforts to subvert the 2020 election results have disqualified him from becoming president again. As cases raising the question have begun working their way through the courts in Colorado, Minnesota, and elsewhere, the country needs the Supreme Court to fully resolve the issue as soon as possible.
Eminent constitutional-law scholars and judges, both conservative and liberal, have made strong cases that Trump is disqualified from being president again under Section 3 of the Fourteenth Amendment, which bars from office those who have taken an oath to defend the Constitution and then “engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof.” Some of those scholars are professed originalists—as are many of the Supreme Court’s conservative justices—and to make their cases, they have analyzed what they say is the “original public meaning” of this provision. Other conservative and liberal scholars have concluded otherwise about the clause’s meaning, or at least raised serious doubts about whether and how these provisions apply to Trump.
Among the unresolved issues are whether the disqualification provision applies to those who formerly served as president, rather than in some other office; whether Congress must pass legislation authorizing the Department of Justice to pursue a civil lawsuit in order to bar Trump; whether Trump “engaged” in “insurrection” or “rebellion” or at least gave “aid or comfort” to “the enemies thereof.” Unsurprisingly, given that this provision emerged in response to the Civil War in the 1860s, there is virtually no modern case law fully resolving these issues, and many enormous questions remain on which reasonable minds disagree—for example, who would enforce this provision, and how.
Those are the legal questions. The political questions are, in some ways, even more complicated, and at least as contested. If Trump is disqualified on Fourteenth Amendment grounds, some believe that this would become a regular feature of nasty American politics. Others worry that significant social unrest would result if the leading candidate for one of the country’s major political parties were to be disqualified from running for office rather than giving voters the final say on the issue.
[David Frum: The Fourteenth Amendment fantasy]
All of these questions, however, are somewhat beside the point. This is not merely an academic exercise. Trump, right now, is already being challenged as constitutionally disqualified, and these issues are going to have to be resolved, sooner or later. My point is that sooner is much better than later.
A number of legal doctrines could lead courts to kick this issue down the road for some time. Maybe the provision applies not to primaries, but only to candidates in a general election. Maybe voters don’t have standing to sue, because they can’t show a particularized injury. Maybe this is a political question to be decided by the political branches, such as Congress, rather than by the judiciary.
But courts should not dally, because judicial delay could result in disaster. Imagine this scenario: Election officials and courts take different positions on whether Trump’s name can appear on the ballot in 2024. The Supreme Court refuses to get involved, citing one of these doctrines for avoiding assessing the case’s merits. Trump appears to win in the Electoral College while losing the popular vote. Democrats control Congress, and when January 6, 2025, arrives and it is time to certify the vote, Democrats say that Trump is ineligible to hold office, and he cannot serve.
As I and my co-authors argue in our report on how to have a fair and legitimate election in 2024, such a scenario raises the possibility of major postelection unrest. The country would have one political party disqualifying the candidate of the other party from serving—after that candidate has apparently won the results of a fair election.
The Supreme Court is the only institution that can definitively say what the law is in this case, and it should not wait once a case reaches its doorstep. Think of Republican voters and candidates soon to participate in the primary process. They, and everyone else, deserve to know whether the leading candidate is actually eligible to serve in office.
A Supreme Court decision to disqualify Trump from the ballot would obviate the need for Congress to resolve the question on January 6. Trump would not be allowed to run. In contrast, a judicial decision that Trump is not disqualified would make it very difficult politically for Democrats in Congress to try to reject Trump anyway after a 2024 victory.
How the Supreme Court would—or should—resolve the question of Trump’s disqualification on the merits is far from clear. There is no question that Trump tried to subvert the results of the 2020 election, using pressure, lies, and even the prospect for violence to overturn Joe Biden’s victory. Trump so far has faced no accountability for his actions: The Senate did not muster the two-thirds vote in 2021 to convict him after his second impeachment, a step that could have led to his disqualification under Congress’s impeachment-related powers. The federal and Georgia cases against Trump for his alleged election interference may yet go to trial, but whether verdicts will ever be reached is far from certain. In any event, even a guilty verdict would not disqualify Trump. If there is going to be any accountability for Trump’s actions in 2020, it might have to come from this disqualification provision. A reading of the Fourteenth Amendment in this way helps protect our democracy.
But serious legal questions continue to dog any use of Section 3 of the Fourteenth Amendment. My general view is that to avoid the overall criminalization of politics, reserve prosecuting politicians for instances when both the law and the facts are clear; marginal cases are best left to other remedies. Disqualification, of course, is not a criminal procedure, but borrowing this principle from the criminal context recommends caution here too. In close cases, the voters should get to decide at the ballot box.
The pressure to disqualify Trump is only going to grow until there’s a final resolution of the question. When this issue reaches the Supreme Court, the country will need the Court to decisively resolve it—or risk chaos later on.
www.bbc.co.uk › sport › golf › 66880267
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On Monday, the Biden administration sent letters with a clear message to 16 governors: Over the past 30 years, their states have underfunded their historically Black land-grant colleges by hundreds of millions—or, in some cases, billions—of dollars. The memos, signed by Education Secretary Miguel Cardona and Agriculture Secretary Tom Vilsack, are the first time the federal government has attempted to put a comprehensive number on the financial discrimination against these institutions.
“Unacceptable funding inequities have forced many of our nation’s distinguished Historically Black Colleges and Universities to operate with inadequate resources and delay critical investments in everything from campus infrastructure to research and development to student support services,” Cardona said in a statement. (There are more than 100 HBCUs in the nation, but just 19 of them are land-grant institutions, or colleges designated for funding under the Second Morrill Act of 1890; it is these 19 institutions whose funding the government analyzed.)
At the outset of the Civil War, in 1861, shortly after southern legislators were expelled from Congress, Senator Justin Morrill of Vermont introduced a bill to educate the American workforce. Across the country, agricultural productivity was down sharply, and Morrill believed that education was the answer. There were only a smattering of colleges in the United States at the time, and they served primarily as finishing schools for the elite. “We have schools to teach the art of manslaying,” Morrill told his colleagues, “and shall we not have schools to teach men the way to feed, clothe, and enlighten the great brotherhood of man?” His idea was for the federal government to give states land that they could sell in order to fund a college. The bill, known as the First Morrill Act, was signed into law in July 1862.
[Read: Attending an HBCU has always been an act of courage]
Iowa was the first state to accept the land grant, which it used to fund Iowa State University; other states followed suit. By the time each state had taken advantage of its land grant, more than 17 million acres of land—10 million of which had been expropriated from hundreds of Indigenous tribes—had been doled out under the act. The institutions rarely, if ever, enrolled Black students.
By 1890, the colleges were starting to work as intended: They were, on average, enrolling more students than non-land-grant colleges were and expanding the college-going population. But the leaders of the institutions argued that they needed more money to do their work, and Morrill agreed. “Let me urge that the land-grant colleges are American institutions, established by Congress, and, if a small pittance is needed to perfect and complete their organization … I shall confidently hope that it will be granted without reluctance and with the full faith in the national benefits that cannot fail to accrue,” Morrill said.
He proposed a Second Morrill Act—one that came with a caveat: States could not receive funds to support a college that made a “distinction of race and color” in admitting students; states could, however, operate a separate but equal college for Black students. The bill was signed into law on August 30, 1890. Most southern states chose the separate-but-equal route; other states, like Iowa, where George Washington Carver enrolled at Iowa State University as its first Black student, in 1891, admitted Black students to their already established land grants.
Within two decades, however, it was clear that the states were shirking their duty to the equal part of separate but equal. On February 5, 1914, senators convened to discuss a sharp disparity among land-grant colleges. Wesley Jones, a Republican from Washington, had gathered data on the differences between the white land grants and the Black land grants. Georgia, Jones told his colleagues, was a prime example of the disparity in funding. There were 423 students at the white land grant—the University of Georgia—and 568 at the one for Black students, Savannah State College, but the University of Georgia’s funding far outpaced that of Savannah State. The government had provided UGA with $249,656—$50,287 of that coming from the federal land grant—whereas Savannah State had received just $24,667, with $8,000 coming from the federal government.
“Does that mean that they were trying to teach 500 colored students on $24,000 and 400 white students on $240,000, in round numbers?” Senator Albert B. Cummins of Iowa asked Jones during floor debate. “That seems to me a very startling disparity.”
[Read: The steep cost of decades of discrimination]
The very least the government could do, Jones argued, would be to require states to report how they spent their money, and he introduced legislation to make it so. But southern senators thought that went too far. The measure was voted down. Time passed. Other reports came and went, such as the Truman Commission for Higher Education and American Democracy’s analysis, which showed that no state in the union funded white and Black higher education equally—including at a rate of 42 to 1 in Kentucky. Still, it took more than a century for the federal government to finally require states to report their land-grant spending, which it did in the 2018 Farm Bill.
Cardona and Vilsack’s letters to the governors outline the exact amounts each land-grant Black college would have received from 1987 to 2020 if the institutions had been funded at the same level per student as the 1862 land grant stipulated. If Alabama A&M University had received its fair share in comparison to Auburn University, which has been dogged for decades by low enrollment figures for Black students, it would have had an additional $527 million over the period; meanwhile, Tennessee State University may have had an additional $2.1 billion if it had received an equitable share of the pie.
The land-grant colleges are not the only Black colleges that have been mistreated by state governments; each institution has many stories of unfair policies it has faced. Savannah State is no longer Georgia’s historically Black land grant—that designation now lies with Fort Valley State University—but it still must deal with the consequences of a state government that has failed to adequately fund it since its founding.
There is now a number attached to the legacy of discrimination at historically Black colleges, at least for the most recent decades. The lingering question is whether states will actually atone for it.
www.euronews.com › 2023 › 09 › 19 › georgia-sees-spike-in-gun-sales-due-to-the-war-in-ukraine
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Even as U.S. politics became more contentious and polarized over the past quarter century, a few pockets of the government remained comparatively above the fray, including the courts, which sought to position themselves apart from politics, and state capitols, where pragmatism trumped partisanship.
But those redoubts have fallen in recent years. The Supreme Court has become more ideologically aligned with the Republican Party, and state legislatures host pitched ideological battles. Now institutions that sit at their intersection—state courts, especially state supreme courts—have emerged as a site of bitter fights.
This fall, Republicans in the Wisconsin legislature are mulling plans to impeach Janet Protasiewicz, a recently elected liberal justice on the state supreme court, before she has even heard a case—by all appearances for the crime of having been elected as an outspoken liberal. In North Carolina, Anita Earls, a liberal justice on the state supreme court, has sued the state’s Judicial Standards Commission over an investigation it began into fairly anodyne comments she made about implicit racial bias in a press interview.
These two examples are only the latest in a trend of punishing judges for their rulings or simply for their politics. In 2018, a Pennsylvania Republican sought unsuccessfully to impeach four of the five Democrats on the state’s highest court. In 2022, Ohio Republicans wanted to impeach state-supreme-court chief justice Maureen O’Connor, a Republican and former lieutenant governor, over rulings about redistricting. In Montana, a bill seeks to make the state’s Judicial Standards Commission more partisan and give it more power to levy consequences on judges.
[David A. Graham: First night at the Republican National Convention]
“There seems to be a growing recognition that if you can’t win at the ballot box or change the way the judges are selected in your state, then judicial-ethics mechanisms in the state may be another tool for exerting political pressure on judges,” Douglas Keith, a senior counsel at the Brennan Center for Justice, told me.
One glaring similarity of these cases is that Republicans are behind all of them. Both parties have participated in turning up the partisan heat in state courts. I have cited Protasiewicz’s campaign, which focused on red-meat progressive issues and was heavily funded by out-of-state liberal groups, as a cautionary example of turning everything into politics. Yet GOP lawmakers are going further by attempting to punish their opponents outside of elections. The Brennan Center tracks bills to undermine state courts, and all but one in the most recent survey was in a GOP-led state. (New York is the blue outlier.) Kentucky Republicans passed a law this year allowing cases to be moved away from a court in Frankfort, the capital, essentially to bypass a single judge who has often struck down their moves. In Arizona and Georgia, recent Republican administrations have packed the state supreme courts.
Both the Wisconsin and North Carolina cases fit the trend, but they carry their own peculiar wrinkles. The Wisconsin case is the sort of political train wreck that is common today: foreseeable from a long distance, and yet no one seems able to stop it. Even before Protasiewicz’s April election, Republicans floated the possibility of an impeachment. Now the GOP, which holds gerrymander-bolstered majorities in both houses of the legislature, is poised to follow through. (The governor, Tony Evers, is a Democrat, and the state narrowly backed Joe Biden in 2020, after narrowly going for Donald Trump in 2016.)
Historically, and in very broad terms, candidates for elected judgeships have tended to say little about their specific views, letting their surrogates and—in states with partisan elections—party affiliation speak for them. (Wisconsin judicial elections are nominally nonpartisan.) Protasiewicz and her conservative opponent, Daniel Kelly, jettisoned that, all but running on partisan platforms and signaling their views on redistricting and abortion while drawing national funding. Protasiewicz won the vitriolic campaign by a comfortable 11-point margin.
She was sworn in last month and still hasn’t heard a case, but Wisconsin legislators are now openly discussing impeachment. Conspicuously missing from all of this discussion is the putative justification—and that’s because they’re still searching for one. They’ve argued that her statements violated ethical guidelines, but the state’s judicial-ethics commission rejected that in a letter that Protasiewicz released. They’ve accused her of prejudging cases that might come before her, but none has yet. They’ve also mulled using her acceptance of donations from the state Democratic Party, but the fact is that all but one sitting justice have taken such funds.
Whether or not Protasiewicz’s campaign approach was politically prudent, Republicans have failed to come up with a decent rationale for removing her, which makes clear what the real reason is: A liberal supreme court is an existential threat to conservative politics in the state. If the court throws out the current maps, as expected, it would eliminate the durable, gerrymandered GOP majority in the legislature. It could also loosen restrictions on abortion. Impeachment of state-court judges is relatively rare in the U.S., and it has historically been used in cases of clear misconduct. Using it to punish politics would be a shift, and one that would endanger the court’s ability to act as a check on the legislative and executive branches.
Robin Vos, the Republican speaker of the house, did not reply to a request for comment. If Protasiewicz were impeached, she would be suspended pending a senate trial, but Devin LeMahieu, the GOP leader in the senate, has said the body wouldn’t take up impeachment. That has led to speculation that Protasiewicz might be left in limbo—unable to rule, but neither convicted nor cleared—and the court with a 3–3 partisan deadlock, in clear contravention of voters’ wishes.
[David A. Graham: North Carolina’s deliberate disenfranchisement of Black voters]
What is happening in North Carolina is stranger, if not quite so dramatic. Some history is helpful: Battles over voting, including maps and election laws, have been the defining theme of North Carolina politics for the past decade and a half, since Republicans took control of the legislature. Earls, a Black woman, for years led the Southern Coalition for Social Justice, a major legal opponent of Republican moves on voting laws. In 2018, she was elected to the supreme court, running as a Democrat in a partisan race. It was the first time since 2004 that supreme-court elections were partisan, owing to a change made by the GOP-led government.
Following the 2020 census, North Carolina Republicans enacted maps that were likely to give 10 of 14 U.S. House seats to the GOP, even though the two parties tend to garner similar portions of the aggregate vote. The state supreme court, then dominated by Democrats, rejected the maps as an unconstitutional partisan gerrymander in spring 2022. Republicans then recaptured control of the supreme court in the fall, and reversed the decision. (The legislature, meanwhile, had appealed to the U.S. Supreme Court under the so-called independent state legislature theory; the justices rejected their argument.) The new Republican chief justice also overhauled many other procedures at the court.
An atmosphere of acrimony has come to pervade the court. But although partisanship is par for the course today, employing ethics complaints as a partisan weapon is not. The state’s Judicial Standards Commission, which is chaired by a Republican judge and includes judges from both parties as well as attorneys, received an anonymous complaint accusing Earls of improperly commenting on a case. After an investigation, the commission dismissed the complaint. Then, in June, Earls gave an interview to Law360 discussing race and diversity in the courts. The commission informed Earls that it was reopening its investigation “based on an interview … in which you appear to allege that your Supreme Court colleagues are acting out of racial, gender, and/or political bias in some of their decision making.”
I read the interview with interest, curious to see what the inflammatory comments were, but emerged baffled. In one passage, Earls said her newly elected colleagues “very much see themselves as a conservative bloc. They talk about themselves as ‘the conservatives.’ Their allegiance is to their ideology, not to the institution.” In another, she said implicit bias was in play in the very white and male group of lawyers who argue before the court. “I’m not suggesting that any of this is conscious, intentional, racial animus,” Earls said. “But I do think that our court system, like any other court system, is made up of human beings and I believe the research that shows that we all have implicit biases.”
Although it’s easy to imagine conservatives disliking and disagreeing with this argument, the concept of implicit bias is by now so established and common as to be nearly banal. Beyond that, ruling such comments out of bounds seems absurd given that justices are partisan officeholders elected in political campaigns. The commission does not appear to have issued sanctions for similar instances—most of its rulings involve clear misconduct—and Earls’s lawsuit argues other states don’t offer relevant precedents either. In an emailed statement, the Judicial Standards Commission’s executive director noted, “The Commission is statutorily obligated to investigate all instances of alleged judicial misconduct and cannot comment on pending investigations.”
The experts I spoke with couldn’t imagine any serious sanction emerging from the investigation—certainly not removal or suspension, which are within the commission’s ambit. Even so, Earls decided to sue the commission, alleging “a series of months-long intrusive investigations” that infringe on her First Amendment rights and asking a court to block the investigation. Why bother, I asked her attorney, Press Millen, if punishment was unlikely?
[Quinta Jurecic: The Court eviscerates the independent state legislature theory]
“She can’t keep doing this forever,” he told me, citing the time and effort involved in responding to the investigation. And he said the specter had already led her to turn down invitations to write an article for a national magazine and to a symposium on state courts because she doesn’t know what speech the commission might or might not abide. “Normally when you hear people talk about chilling of free speech it’s always in an abstract and hypothetical way. Not here.”
Bob Orr, a former Republican justice on the North Carolina Supreme Court, told me that the judicial-standards process is “fundamentally broken.” Orr clashed with the commission as a judge, and as an attorney has defended judges involved in investigations. (Orr left the Republican Party over its Trump-era changes.) “I’ve known a lot of members on the panels over the years. They’re good people. They’re trying to do what’s right,” he said. But he said the commission’s structure is opaque, unclear, and unfair to accused judges, who don’t know who filed a complaint, how an investigation was initiated, or how it’s conducted, and have little recourse at the end.
Such a black box lends itself to abuse—and certainly to the perception of abuse—along political lines. “If I were a certain kind of political opponent of hers, she would be a manifestation of one of the most terrifying things imaginable to me: an extremely capable and accomplished African American woman,” Millen told me. The circumstances of the complaint into Earls, similar to the other assaults on state courts elsewhere, make that appear to be the most likely motivation.
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Photograph by Irina Rozovsky
When the photographer Irina Rozovsky moved from Boston to Athens, Georgia, she began taking walks around her new neighborhood. She’d push her daughter’s stroller to a nearby wooded path, trying to get the baby to sleep, and photograph what she could along the way. One day in 2018, after a storm, the path was flooded. A young girl stood in the bright sun at the edge of the murky water, observing the strange new scene before her—“confronting the unbelievable,” as Rozovsky puts it. The image reminded Rozovsky of the fairy-tale trope of a child getting lost in the forest. “It’s both a romance and a nightmare,” she told me.
Rozovsky’s untitled photograph will be on display this fall at the High Museum of Art in Atlanta, as part of the exhibition “A Long Arc: Photography and the American South Since 1845.” In an introduction to an accompanying book, the Atlantic contributing writer Imani Perry reflects on the 21st-century photographers who capture the region’s distinctive landscapes with compositions that evoke a 19th-century sense of the sublime. In the South, Perry writes, “nature takes over everything that humans create and destroy.”
Rozovsky insists that the work is not making an environmental statement. As a mother, she worries about the role that humans have played in warming the world her daughter will inherit. But as a photographer, she told me, she was drawn to this particular scene for its “serene and surreal” beauty, its unsettling scale.
A relative newcomer to the South, Rozovsky has been struck by the high drama of its nature. “It can be so wild,” she said, even just down the street in Athens. She’s not religious—but when trees fall, or a path floods like this, Rozovsky said, it can feel almost biblical. “There’s something larger than us.”
This article appears in the October 2023 print edition with the headline “Confronting the Unbelievable.” When you buy a book using a link on this page, we receive a commission. Thank you for supporting The Atlantic.
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