The right to vote free of racial discrimination was won by blood and sacrifice, those of both the soldiers who fought to preserve the Union and the enslaved and formerly enslaved, and inscribed in the Constitution as the Fifteenth Amendment, so that sacrifice would not be in vain. But that right is also very inconvenient for the modern Republican Party, which would like to be able to discriminate against Black voters without interference from the government.

Yesterday, a three-judge panel from the Eighth Circuit Court of Appeals concluded that Section 2 of the Voting Rights Act, the law that made America a true democracy for all of its citizens, does not allow private parties to bring lawsuits challenging racial discrimination in voting, which is how the law has worked since it was passed. The decision would effectively outlaw most efforts to ensure that Americans are not denied the right to vote on the basis of race as the Fifteenth Amendment demands.

"It’s hard to overstate how important and detrimental this decision would be if allowed to stand: the vast majority of claims to enforce section 2 of the Voting Rights Act are brought by private plaintiffs, not the Department of Justice with limited resources," the election-law expert Rick Hasen wrote on his website. "If minority voters are going to continue to elect representatives of their choice, they are going to need private attorneys to bring those suits."

The Fifteenth Amendment and the Voting Rights Act were made necessary by the long and ongoing history of political parties seeking to disenfranchise voters on the basis of race. Lawmakers, given free rein, will do their best to draw districts to their party’s advantage. When racially polarized voting is present, the temptation will be to engage in racial discrimination against a rival party's constituency. For example, if your party mostly relies on support from white voters, you might try to draw a district that minimizes the political power of Black voters, a practice called racial gerrymandering. This is what Democrats did in the aftermath of Reconstruction, and what Republicans are now accused of doing in Arkansas, the subject of this lawsuit, although not deliberately. The Voting Rights Act bans practices that have the purpose or effect of discriminating on the basis of race, a standard that prevents lawmakers from benefiting from discrimination as long as they can cover their tracks. During Arkansas’s 2021 redistricting process, the state chapter of the NAACP alleges, lawmakers there drew state-district lines that dilute Black voting strength.

[Kimberly Wehle: How the Court became a voting-rights foe]

The Constitution is supposed to forbid such discrimination, but that sounds simpler than it is. In practice, if you have enough judges or justices willing to find unconstitutional the laws adopted to enforce that right, or willing to rule in such a way that nullifies the ability of those laws to function, you can simply render the Fifteenth Amendment useless. This is what the Supreme Court did after Reconstruction, when Black people were still trying to assert their right to vote and the justices decided it was a right they could not or would not defend.

The majority’s reasoning is simple, if absurd. Although acknowledging that “Congress had ‘clearly intended’ all along to allow private enforcement,” it argues that the text does not say so explicitly, therefore Congress’s intentions, Supreme Court precedent, and decades of practice are irrelevant. The fact that this would allow lawmakers to discriminate against their Black constituents without interference from pesky civil-rights groups is an innocent coincidence. This interpretation of the law was teed up for the judges by Justices Neil Gorsuch and Clarence Thomas in another 2021 voting-rights case in which the conservative-dominated high court weakened prohibitions against voting discrimination.  

All of this is part of a long-standing campaign by the Republican Party to undo one of its greatest accomplishments, the Fifteenth Amendment. It is a cause that Chief Justice John Roberts has championed since he was a 20-something lawyer in the Reagan Justice Department. As chief justice, Roberts has eviscerated voting-rights protections time and time again, in keeping with an ideological belief that prohibitions on racial discrimination are themselves morally tantamount to racial discrimination.

[From the March 2021 issue: American democracy is only 55 years old—and hanging by a thread]

Until recently. In June, Roberts and Justice Brett Kavanaugh unexpectedly sided with the Court’s Democratic appointees in upholding a lower-court order forcing Alabama to stop discriminating against the state’s Black voters. Alabama originally defied this order, perhaps because it was so out of character with Roberts’s past jurisprudence. The state’s recalcitrance forced the Supreme Court to rebuke Alabama again and tell it to follow the law. Not having done so, after all, would have sanctioned broader defiance of the Court's power, making Alabama’s behavior a direct threat to the justices’ authority, something none of the justices will countenance.

The Arkansas case does not pose such a threat, and therefore it raises the question of whether, this time, Roberts and Kavanaugh will go along with such an obvious attempt to allow Republican lawmakers to violate the voting rights of their nonwhite constituents with near-impunity. The fate of the right to vote free of racial discrimination is in the hands of powerful conservative men who, like the justices at the twilight of Reconstruction, have never considered it all that significant.

Ethically and academically, 2023 has been a bad year for America’s most richly endowed university. The U.S. Supreme Court ruled that Harvard discriminated against Asian applicants. Major donors have mutinied after anti-Semitic incidents on campus. Can Harvard be saved? Here, I imagine some guidance from the university’s investment advisers.  

Dear Board of Overseers,

Harvard has been described as a hedge fund with a university attached. This is the literal truth.

As endowment-fund managers, our core business is accumulating and growing enormous sums of our clients’ money: in Harvard’s case, $50 billion and rising. In the past, our university division has understood and accepted the primacy of our accumulate-and-grow mission. That’s why being connected to a wealthy donor enhances an applicant’s chance of admission to Harvard by a factor of nine.

We can all take pride in the university’s strategic use of the admission of wealthy but otherwise unqualified students to bulk up our endowment fund. But in recent years, the university’s decision making has imposed serious reputational and litigation risk upon the fund.

In June, the Supreme Court found that the university’s anti-Asian admission practices violated Title VI of the Civil Rights Act of 1964.

The university’s capricious disciplinary practices have earned it a score of zero out of 100 from the Foundation for Individual Rights and Expression, the worst score the group has ever given an American university.

[From the March 2005 issue: God and man at Harvard.]

Lately, incidents of anti-Semitic harassment on campus have attracted international attention, potentially exposing the university to civil litigation and federal investigation.

Together, these shocks seriously threaten our fund’s top line.

The Wexner Foundation has cut its contributions. We are concerned that the billionaire investor Bill Ackman, who has expressed strong criticism of Harvard, may do the same. Sixteen hundred alumni donors have signed a letter protesting the tolerance of anti-Semitism on campus.

We have become concerned that the university unit now poses an existential threat to Harvard’s core institutional mission: piling up the largest educational endowment on Earth. More than 100 professors have now signed a letter defending the ideological stance that negatively affects the fund’s revenue environment. Students have occupied university buildings to demand support for rhetoric that we fear encourages anti-Semitic harassment. The university’s administration has taken a worryingly lenient approach. This is not positive for brand image.

We respect the challenges of stakeholder management facing the university unit. But we’ve done a deep dive and run the numbers, and at the end of the day, we just don’t see a workable turnaround plan. We’re at a pain point, and our recommendation is that the time has come for the Harvard endowment fund to spin off its underperforming university unit.

Divesting from the university unit would reduce distraction for the endowment fund’s management team, and provide an opportunity to devise a more compelling business thesis for the spun-off unit. One proposal to explore would be selling that part of the business to a specialty operator with a superior record of success in the field of higher education. Purdue University is a candidate that comes to mind.

[Conor Friedersdorf: Students for pogroms in Israel]

Purdue has been able to articulate a university policy that protects speech, even abhorrent speech, without sacrificing the university’s commitment to protecting Jewish students from anti-Semitic harassment and violence. Purdue has gone so far as to actually describe the murder of Israeli civilians as “barbaric terrorist attacks.” Imagine.

New management at the formerly underperforming university unit could focus on its neglected job of admitting smart undergraduates in ways that comply with federal antidiscrimination law, and teaching them something valuable in a community that enforces rules against ethnic and religious harassment for all groups equally. The newly spun-off university unit could also reintroduce the concept of “grades,” no longer automatically bestowing A’s on everybody for everything.

Meanwhile, the hedge-fund business will be free to make rational investment decisions without graduate students demanding that fund managers boycott one of the world’s most promising start-up markets.

We look forward to developing a win-win strategy for both new businesses, rebranded as Harvard Asset Management LLC and the new Purdue East.

For Thanksgiving, I will be traveling home to western New York on Amtrak. I don’t think anything will go disastrously awry, though I don’t know. In 2019, during a snowstorm, an Amtrak train was stuck for some 36 hours in the mountains of Oregon because of a fallen tree. Earlier this year, on an Amtrak train from Northern Virginia to Sanford, Florida, passengers repeatedly called the police during the train’s 20-hour delay. “For those of you that are calling the police,” the conductor had to announce, “we are not holding you hostage.”

That debacle was caused by a freight train ahead of them, which had crashed into an empty car parked on the tracks in rural South Carolina. Nothing you can do about that. A train just has to wait until whatever’s in front of it is gone. Or it has to plow through it: Just last week, a train on its way through Michigan inadvertently smashed into an unoccupied parked car and then derailed. “If you can imagine it on Amtrak, it will probably happen,” Richard White, a historian at Stanford and the author of Railroaded: The Transcontinentals and the Making of Modern America, told me. He cited another incident from last week, in which certain trains out of New York City were suspended for days because a privately owned parking garage above the tracks had literal holes in it.

Of course, extreme train incidents are rare, and that’s why they make news. No form of transportation is infallible, and severe injury and fatal accidents are exponentially more common with car travel than with train travel. And any form of travel can be delayed by weather or by mechanical issues. The fact is that there is no good way to travel in America. Driving is dangerous, renting a car is a nightmare, and I don’t need to tell you about airplanes. Amtrak isn’t ideal, but it’s nonideal in a unique way. The trains don’t go to enough places; they don’t go often enough; they take too long; they can be more expensive than the faster alternatives. And then sometimes there’s something on the tracks.

Many Americans may be put off by the day-to-day reality of the country’s trains. Just 32 million people took Amtrak in 2019, and a tiny fraction of Thanksgiving travelers this year are expected to take the train. But many Americans still find the idea of train travel very romantic. New train routes generally receive popular support, and Amtrak’s shoot-for-the-moon 2035 plan, released in early 2021, caused national buzz about the future of passenger rail. TikTok travel influencers are thrilled by the views from the observation cars; young meme-makers talk about trains as if they were set down on the face of the Earth by God.

Taking Amtrak, to be clear, is often amazing. I travel on it whenever I can, even if it’s slower (such as to Pittsburgh this summer for a Taylor Swift concert, which took about nine hours from New York City). On a train, everything looks like it’s from the ’80s, because it probably is. But on an airplane, you’re squished and miserable, and everything good costs extra or isn’t allowed. (Amtrak itself has latched onto “no middle seat” as a marketing tactic.) All train seats are huge; I can bring my own bottle of wine if I’m in a sleeper car. Forget driving. What can I do in a car? Not read a book. Not pop up and take a little walk to the café for a turkey sandwich.

The experience may soon get better. President Joe Biden is obsessed with Amtrak and has made extending Amtrak service part of his agenda. The passenger cars, which are 36 years old, on average, are finally getting replaced too. Earlier this month, at an Amtrak maintenance facility in Delaware, Biden designated $16.4 billion for infrastructure repairs, part of the biggest investment in passenger rail since the 19th century. “This is the United States of America,” he said. “There’s not a damn thing we can’t do if we set our mind to it.”

Others might say to keep dreaming. Amtrak has never not had problems. Amtrak was built with problems. (It reportedly lost $500,000 a day in its first year.) Some of these problems are existential: The fact is that many American cities evolved after the invention of the airplane and the car, Eric Jessup, the director of the Freight Policy Transportation Institute, at Washington State University, pointed out. We’re too spread out for trains to get people everywhere they want to go. Other problems are more practical but still severe. Trains are frequently delayed, most often because of freight-train traffic on shared tracks. Last year, the Sunset Limited train from New Orleans to Los Angeles was on time for just 19 percent of trips. And, again, everything is old. Some of the repairs that Biden referenced this month are for a tunnel that was built in the 1800s. (A spokesperson for Amtrak declined to comment on the service’s delays.)

Passenger trains haven’t been good in America in a very long time, so it’s not clear why people have such a soft spot for them. “Few Americans outside the Northeast are old enough to remember days when train travel was the norm,” White told me. “I don’t know if there are enough movies to produce nostalgia.” He couldn’t explain it, he said, but “I think you are right that there is a constituency for trains that extends beyond those people who actually ride them.” He pointed out that people in his home state of California voted to subsidize high-speed-rail construction, even though most people in California probably won’t take those trains. Maybe it’s just that Americans like to have options, whether or not they take advantage of all of them; maybe we, on principle, think we ought to be competing with Europe. Or maybe, as Amtrak put it in a 1993 advertising campaign, “There’s Something About a Train That’s Magic.”

There is something about trains. It’s the forces of nature. It’s physics. It’s wild. Trains are hulky leviathans, and they move—hulking—through the wilderness and the mountains and everywhere else. The technology feels removed from modern life. When it works, it’s amazing. And yet, trains are sensitive. They can get stuck in those mountains for 36 hours! They can tip off of tracks that have been warped by an exceptionally hot day. They can be derailed because perhaps a teenager threw something or because a random abandoned stolen car is sitting on the tracks. “Amtrak—because it has to cross over roads, go through stations, travel long distances—is a system that is particularly vulnerable to idiots,” White told me. “Weird human actions can bring the whole thing to a halt.” But usually, the whole thing doesn’t come to a halt. Usually, you get from Point A to Point B, and you get to see all of the points in between, even if you don’t do it in the time frame you were sold.

In 1971, when the government took over responsibility for passenger-rail service, forming Amtrak, The New York Times speculated that passenger-rail enthusiasts would be “extinct by 1985.” But I’m about to take Amtrak in 2023, and I’m pretty sure I’ll get home … eventually.