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The courts conservative justices followed a similar course last term in other cases. In Cummings v. Premier Rehab Keller, the court considered whether recipients of federal funds that discriminate against individuals because of their race, sex or disability must pay damages for any resulting emotional distress. The framework the court established 20 years ago strongly suggested the answer was yes. Justices Brett Kavanaugh and Gorsuch, however, supplied the pivotal votes against the plaintiff on the ground that that framework itself was faulty and thus should never be extended. And in Vega v. Tekoh, Kavanaugh took the same approach to the courts well-known Miranda rule the rule requiring police officers to warn suspects in custody before questioning them. He encapsulated his approach to Miranda during the cases oral arguments as follows: Accept it, but dont extend it.

Supreme Court Justices Neil Gorsuch, left, and Brett Kavanaugh pictured at the Capitol in Washington.|Doug Mills/The New York Times via AP, Pool

This approach is as problematic as it is pithy. In the guise of respecting precedent, the new tactic of barricading precedent actually thwarts it.

We need not look back very far to understand why that is so. During oral argument five years ago in another case involving whether federal officers could be held liable for violating the Fourth Amendment this time for shooting an innocent child just across the U.S.-Mexico border Justice Stephen Breyer explained to the plaintiffs lawyer that the court could not just pronounce which side wins. We [have to] write some words in an opinion, Breyer stressed, establishing a legal rule that will affect other cases too. Justice Samuel Alito underscored the point: We cant just say that on the particular facts here, one party wins. We have to have a rule that can be applied in other cases.

In other words, Supreme Court decisions create legal precedent that necessarily extends beyond particular cases. While lawmakers enacting a statute can effectively pronounce this much and no more perhaps due to horse-trading, political compromise or sheer limits of will the concept of stare decisis requires the court in future cases to extend or distinguish past decisions a principled manner.

Or so we thought. At least some in the courts newly constituted majority seem to have a different conception of the judicial role one which allows them simply to refuse to apply past decisions they do not like.

In fact, we can see from this vantage point one way in which the courts decision overruling Roe was actually doubly disrespectful of stare decisis. Those defending the right to abortion (of whom I was one) argued that the courts prior decisions guaranteeing same-sex couples the right to engage in intimate relations and to marry supported an individual right to obtain an abortion. The conservative majority responded in two ways. It first insisted that it accepted those prior decisions. But, without explaining how they could be harmonized with the originalist legal framework that the court said required Roes reversal, the majority also refused to apply those precedents. In short, the court barricaded off its gay rights decisions.

On one level, many surely welcomed the courts announcement that it intends to preserve those important decisions. But this declaration also seems to confirm that the court is now comfortable deciding cases on the basis of pure power or will, not just traditional judicial reasoning.

That is cause for great concern. A core feature of the rule of law is that judicial decisions must be worth more than their resolutions of specific controversies in the past. Otherwise, the value of precedent threatens to become nothing more than the degree to which the current members of the court thinks a prior decision is correct in other words, a system, to invert John Adams famous phrase, of men, not laws.

The rest is here:
Opinion | The Other Way the Supreme Court is Nullifying Precedent - POLITICO

from the extending-the-constitution-free-zone-across-the-country dept

The Constitution-free zone the area within 100 miles of any border crossing, port of entry, or international airport now apparently covers the entire country in perpetuity.

Border agencies mainly Customs and Border Protection (CBP) have steadily increased the number of device searches they do every year. Sometimes the search is limited to scrolling through an unlocked phone, an act that can be performed by a CBP agent even without reasonable suspicion. Then there are the more invasive searches, where the phone is seized temporarily and hooked up to a device to extract information.

These searches should be covered by the Fourth Amendment, thanks to the Riley decision. But, because they happen near the border (or at an inland international airport), they arent. National/border security concerns are elevated above enshrined rights to allow invasive searches with little more than a bit of suspicion. Within this constitutional carve-out, the CBP operates. And the number of invasive device searches it performs has increased exponentially in recent years.

As concerning as this development is, its even more concerning that the CBP appears to have taken a hands-off approach to preventing abuse of the search process or abusive searches of the data collected from these searches. Despite this program having been in operation since 2007, the CBPs Office of Field Operations (OFO) has done almost nothing to measure the programs effectiveness or ensure searches are handled properly and responsibly. This is from a 2018 Inspector Generals report:

[B]ecause of inadequate supervision to ensure OFO officers properly documented searches, OFO cannot maintain accurate quantitative data or identify and address performance problems related to these searches. In addition, OFO officers did not consistently disconnect electronic devices, specifically cell phones, from networks before searching them because headquarters provided inconsistent guidance to the ports of entry on disabling data connections on electronic devices. OFO also did not adequately manage technology to effectively support search operations and ensure the security of data.

All of that leads us to this: the DHS is basically running a program that allows over 3,000 CBP officers to search a database compiled from data pulled from tens of thousands of devices, all without warrants, reasonable suspicion, or even adequate oversight. Heres Drew Harwell with the details for the Washington Post:

U.S. government officials are adding data from as many as 10,000 electronic devices each year to a massive database theyve compiled from cellphones, iPads and computers seized from travelers at the countrys airports, seaports and border crossings, leaders of Customs and Border Protection told congressional staff in a briefing this summer.

The rapid expansion of the database and the ability of 2,700 CBP officers to access it without a warrant two details not previously known about the database have raised alarms in Congress about what use the government has made of the information, much of which is captured from people not suspected of any crime.

Thats all taken from a briefing delivered to Congress earlier this summer, but only made public after Senator Ron Wyden publicly demanded answers from the CBP. His letter [PDF] exposes the breadth and depth of this previously secret program.

Getting into the database is easy: just be anywhere CBP officers are and carry a device. CBP officers will then misinform you about your rights and their intentions while searching your device, should they choose to go that route. Travelers are provided with some info, but much of it is (apparently deliberately) inaccurate, as Wydens letter points out.

CBP told my office that it provides travelers a tear sheet explaining their rights when it seizes a travelers device and copies their data. However, CBP confirmed to my office during a June 20, 2022 briefing that its officers are only required to provide the tear sheet at some time during the search, not at the beginning. Thus, travelers might not see it until after they are coerced into unlocking their devices.

Moreover, the tear sheet provides misleading information regarding their rights and CBPs authority to search their devices. The tear sheet does not tell travelers that CBP will retain their data for 15 years and that thousands of DHS employees will be able to search through it. In fact, the tear sheet misleadingly suggests that CBP will not retain a copy of travelers data absent probable cause. The tear sheet also states that collection of travelers information is mandatory, but fails to convey that CBP may not arrest an American or prevent them from entering the country if they refuse to tell CBP their password.

The CBP is leveraging the lack of constraints in areas surrounding borders to engage in routine warrantless searches of devices. Then it leverages this lack of informed consent and/or border security mandates to compile a massive database that can retain 15 years of info it then searches seemingly at will. When people are faced with the prospect of not being allowed to move on toward their destination, theyll often comply, especially when they are mislead both by CBP officers assertions and the information sheet full of incorrect information.

Lack of information is the guiding principle for the collection and use of this data. Wydens letter notes the CBP retains no records detailing the number of times it performs these advanced searches that pull all data from devices, nor how often it performs advanced searches in comparison to basic searches, which do not involve the 15-year retention of data. It also has not provided any data on how many devices have had their contents added to this database, nor how often officers access this collection.

The reason for this lack of data is explained later in Wydens letter. The CBP simply does not feel like this is information worth collecting. And it doesnt appear to believe it should be closely monitoring use of this database full of Americans personal information.

CBP confirmed during this briefing that it stores this deeply personal data taken, without a warrant signed by a judge, from Americans phones for 15 years and permits approximately 2,700 DHS personnel to search this data at any time, for any reason. CBP officials also revealed that government personnel querying the data are not prompted to record the purpose of the search, even though auditable records of this sort are an important safeguard against abuse.

Wyden urges the CBP to align itself with Ninth Circuit precedent precedent that only allows forensic examination of travelers phones to search for contraband. This would limit unreasonable searches and force the CBP to perform more direct oversight of the program to ensure rights arent violated.

But until that happens (and it will take the Supreme Court to make it happen), the CBP is going to continue doing what its doing. That its secret dragnet has been exposed wont stop it from adding device contents tens of thousands of times a year. And it will take more than some Congressional heat to force it to collect and retain records on its own actions with the same enthusiasm it collects data from innocent Americans devices. Rather than waiting for the right case to land in the Supreme Court, Congress needs to take action to protect rights at the border and recognize that rights shouldnt be suspended just because of where someone happens to be momentarily located.

Filed Under: 4th amendment, border searches, cbp, device searches, phone searches, ron wyden

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Device Searches Have Created A Massive Database Of American Phone Data CBP Agents Can Search At Will - Techdirt

In the scandal surrounding the classified documents Donald Trump kept at Mar-a-Lago, the former president and his lawyers appear to have everything they want. Team Trump insisted that a Trump-appointed judge assign a special master in the case to review the materials, and she complied. Team Trump asked for a specific judge to fill the role, and the Justice Department complied.

Its against this backdrop that the former president and his defense attorneys still have a problem, not with prosecutors, but with the special master they sought out. NBC News reported:

Donald Trumps attorneys said in a filing Monday night that they dont want to disclose to a court-appointed special master which Mar-a-Lago documents they assert the former president may or may not have declassified. In a four-page letter to the special master, Trumps attorneys pushed back against Senior U.S. District Judge Raymond Dearies apparent proposal that they submit specific information regarding declassification to him in the course of his review.

In other words, the Trump-requested arbiter asked the former president and his lawyers to disclose details about the documents he claims to have declassified. They responded that they dont want to comply.

Why not? Because as Team Trump told Dearie, they dont want to be forced to fully and specifically disclose a defense to the merits of any subsequent indictment.

Or put another way, Team Trump fears that a criminal indictment against the former president or others in his operation might be on the way, and answering the special masters question might undermine a future legal defense.

The process is off to a great start, isnt it?

Complicating matters, this isnt the only area of concern for the Republican. Dearies draft plan also set a deadline of Oct. 7 for the inspection process, while Team Trump responded that it wants to drag out the process until the end of November.

Whats more, a Politico report added, Trumps team also raised concerns about Dearies request for information about whether any subsequent Fourth Amendment litigation filed by Trump to reclaim the documents should be filed with the magistrate judge who authorized the search in the first place: Bruce Reinhart, who Trump has assailed without basis as biased against him.

With U.S. District Court Judge Aileen Cannon, everything was a breeze for the former president. The young, conservative jurist simply ignored potential concerns about her professional reputation and gave Trump, who tapped her for the federal bench two years ago, pretty much everything he wanted.

If the Republican expected his handpicked special master to follow Cannons lead, it appears hes going to be disappointed.

Steve Benen is a producer for "The Rachel Maddow Show," the editor of MaddowBlog and an MSNBC political contributor. He's also the bestselling author of "The Impostors: How Republicans Quit Governing and Seized American Politics."

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Team Trump pushes back against its own special master in docs case - MSNBC

Eroding our rights in the legal system

The Supreme Court took on five cases that limit the ability of Americans to defend themselves in acourt of law.

1. In Shinn v. Ramirez, thecourt ruled 6-3that federal judges cannot hear new evidence from death row inmates, arguing that their state-appointed lawyers did not provide constitutionally adequate defense, eviscerating the Sixth Amendment right to effective assistance of counsel. The Sixth Amendment guarantees everyone the right to an effective, competent attorney, even if they cant pay.

In her dissent, Justice Sonia Sotomayor stated that the perverse decision hamstrings the federal courts authority to safeguard [the Sixth Amendment] right and that the Courts decision will leave many people who were convicted in violation of the Sixth Amendment to face incarceration or even execution without any meaningful chance to vindicate their right to counsel. Across the term, the court chipped away at incarcerated peoples rights, and made it more difficult for them to bring writs of habeas corpus, which are one of the most powerful means of challenging wrongful convictions and sentences.

2. In another 6-3 ruling, the court chipped away at our Miranda rightsthe rights given to people in the United States upon arrest since the 1966 rulingMiranda v. Arizona, requiring that law enforcement inform suspects of their right to remain silent, to have legal representation, and against self-incrimination. In Vega v. Tekoh, the court ruled 6-3 along partisan lines that Americans cannot sue officers who fail to inform them of their right to remain silent and right to an attorney during an arrest. By removing consequences for violating someones Miranda rights, the court almost certainly made it more likely that law enforcement will infringe upon peoples rights and put their legal status and safety at risk.

3. The Supreme Courts assault on the Constitution included going after Fourth Amendment protections against unreasonable search and seizure. In Egbert v. Boule, the court heldagain 6-3 along partisan linesthat border patrol officers who violate the Fourth Amendment right against unreasonable search and seizure cannot be sued. That gives these officers more power to search the homes of anyone within 100 miles of a border without fear of consequence.

That ruling does not just affect immigrants. Its everyone who lives within the border zonenearlytwoout of three Americans. The ruling doesnt take away your Fourth Amendment rights under the Constitution. It just makes it easier for border patrol, and potentially other federal law enforcement agents, to get away with violating them.

4. The Trump-packed court majority denied every stay of execution application that came before it last session, eliminating rights for vulnerable people facing execution. The Supreme Court denied the emergency stay of execution petitions and overruled two stays of execution ordered by lower courts, allowing all 13 people who applied for relief to be put to death.

Four of the people awaiting execution had intellectual disabilities. Four were challenging Oklahomas lethal injection protocolsa state which has a cruel history of botched executionsbut the court refused to halt their executions. Ultimately, one of the people executed in Oklahoma, John Grant,asphyxiated on his own vomit during the lethal injection. A lower court had stayed Grants execution, but the Supreme Court reversed that order and pushed the execution forward; he was killed just hours later.

5. The court used its shadow docket to shield police who use excessive force from accountability. In Rivas-Villegas v. Cortesluna and City of Tahlequah, OK v. Bond, theCourt reversed two lower court decisions denying qualified immunity for officers involved in two excessive force cases. One of the cases involved a fatal shooting. Qualified immunity shields police officers from accountability for their actions in excessive force claims, allowing them to essentially torture at will. Doing so almost certainly makes it more likely that officers will use excessive force. This is from the shadow docket, so no justices fingerprints are on the decision.

6. In three voting rights cases, the Supreme Court instituted racially gerrymandered maps in three separate states. In a trifecta of voting rights casesMerrill v. Milligan, Wisconsin Legislature v. Wisconsin Elections Commission, andArdoin v. Robinsonthe court continued its assault on the Voting Rights Act through three shadow docket decisions that undermine Black voting power.

In February, the court allowed Alabama to reinstate a racist voting map after a lower court held the map was unlawful. Several weeks later, the court threw out a Wisconsin Supreme Court redistricting ruling that adopted a map adding a majority-Black seat to the state legislature. And in the last week of the term, the court intervened to revive Louisianas racially gerrymandered congressional map, which had been blocked by a lower court.

7. The court made it extremely difficult for immigrants to get help when the government violates their rights. InGarland v. Gonzalez, the courts conservative supermajority ruled 6-3 on partisan lines that noncitizens cannot receive class-wide injunctive relief when the government violates the Immigration and Nationality Act (INA). As a result, when the government violates the rights of a whole class of noncitizens, courts are unable to require immigration officers to provide relief like bond hearings to all affected people; instead, each individual noncitizen must separately request and be given a bond hearing.

On the same day, June 13, the court issued an 8-1 decision in Johnson v. Arteaga-Martinez, holding that noncitizens are not entitled to specialized bond hearings after being detained more than six months. Together, these two cases leave many vulnerable noncitizens without recourse to defend their rights and could leave people in detention indefinitely.

8. The court also harmed resident immigrants, leaving thousands without recourse to challenge unfair Board of Immigration Appeals decisions. InPatel v. Garland, the court ruled that federal courts cannot review decisions made by immigration judges and the Board of Immigration Appealsleaving some of the most vulnerable among us without recourse to challenge unfair decisions. Pankajkumar Patel, who has lived and worked in the U.S. for more than 30 years and raised a family here, was denied permanent residence status because of a mistake on his drivers license application years ago. The Supreme Court shut down his ability to fight that decision, and he and his wife face deportation proceedings without recourse.

9. The court denied U.S. citizens living in Puerto Rico their right to access certain Social Security benefits in U.S. v. Vaello-Madero. Jose Luis Vaello Madero was a recipient of SSI benefits while living in New York, and then moved to Puerto Rico in 2013. He continued to receive benefits, but when the government discovered he had moved, they ended his benefits and sought to claw back $28,000 from him. He sued, arguing that the exclusion of Puerto Rico residentsU.S. citizensviolates the Equal Protection guarantee of the Fifth Amendments Due Process Clause. The court held that the U.S. government can deny SSI benefits to disabled U.S. citizens living in Puerto Ricoresidents who are overwhelmingly Latinoand people of color. More than 300,000 people were impacted by this ruling.

In her dissent, Justice Sotomayor noted that the decision is especially devastating because Puerto Rico has no congressional representation, and therefore has no other means to correct the punishing disparities suffered by citizen residents of Puerto Rico under Congress unequal treatment.

10. The court issued a devastating blow to tribal sovereignty inOklahoma v. Castro-Huerta, upending decades of precedent and basic principles of federal Indian law to strip power away from tribes in criminal justice matters on native lands. National Congress of American Indians (NCAI) President Fawn Sharp called the ruling an attack on tribal sovereignty and the hard-fought progress of our ancestors to exercise our inherent sovereignty over our own territories.

It was only a few months ago that Congress loudly supported tribal sovereignty and tribal criminal jurisdiction with the passage of the Violence Against Womens Act, reaffirming the right of Tribal Nations to protect their own people and communities, but make no mistake, today, the Supreme Court has dealt a massive blow to tribal sovereignty and Congress must, again, respond.

11. The court made it harder for victims of illegal FBI surveillance on Muslim communities to vindicate their rights. In FBI v .Fazaga, the court held that the FBI can hide its discriminatory surveillance of Muslim Americans under state secrets, barring the plaintiffs religious discrimination claims. Those claims were based on evidence that the government illegally spied on those attending mosques in violation of their constitutional religious liberties and federal law, illegally videotaping their homes and recording conversations in several California mosques.

12. In addition to the more widely reportedWest Virginia v. EPA, whichattacked the Clean Air Act, the court also went after the Clean Water Act and the health and safety of communities, this time from the shadow docket. In Louisiana v. American Rivers, the Court issued a radical environmental decision that revived a Trump-era policy, upending decades of precedent and settled law giving states and tribes authority to protect their waters.

The ruling severely limits the authority of states and tribes to restrict environmentally risky projects, such as pipelines and coal export facilities. The Supreme Courtagaingave no reasoning for shredding 50 years of precedent, issuing only a one-paragraph opinion siding with polluting industries over the tribes and communities whose safety is on the line.

These 12 decisions demonstratewhy the legitimacy of the court is in question. Its not simply because people disagree with an opinion, as Chief Justice John Robertswhined earlier this month. Its because the radical, extreme majority has been dismantling core tenets of the Constitution and settled law, undermining the will of the majority of Americans, throwing out decadeseven centuriesof precedent, and demonstrating that it is an existential threat to the rule of law.

The courts next term, starting in just two weeks, will feature cases that threaten LGBTQ rights, environmental safety, election integrity, affirmative action, and more. That includes Moore v. Harper, an effort by Republican legislators in North Carolina to declare themselves the sole arbiters of federal elections, putting them above the states constitution and the states courts. The specious and radical theory theyre arguingthe independent state legislature theoryis basedon an early 19th-century document that is a well-known fake. In other words: fraud.

The Supreme Court has lost legitimacy, and there isnt much time to correct it. Congress and President Biden must expand the court today to ensure our safety, liberties, and futures.

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They overturned Roe and, amid the chaos, gutted 12 more rights and freedoms you might have missed - Daily Kos

(Photo by Paul Hennessy/SOPA Images/LightRocket via Getty Images)

Three thoughts to consider this morning:

You really wouldnt want to be the guy around Mar-a-Lago who came up with the idea for a special master.

Maybe Ron DeSantis didnt really think through this whole flying-migrants-around-the-country thing.

Trumps weekend rally was worse than you thought.

Happy Tuesday.

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Lets start with Team Trumps apparent buyers remorse over the special master they wanted and chose. Judge Raymond Dearie asked Trump to disclose details about any materials he claims to have declassified before calling them his property.

Trump is balking, complaining:

[T]he Special Master process will have forced the Plaintiff to fully and specifically disclose a defense to the merits of any subsequent indictment without such a requirement being evident in the District Courts order, the attorneys wrote.

Oh.

Theres more. Trump is worried that Dearie is moving too fast, arguing that his draft plan for review compresses the entirety of the inspection and labeling process to be completed by October 7, 2022.

And

Trumps team also raised concerns about Dearies request for information about whether any subsequent Fourth Amendment litigation filed by Trump to reclaim the documents should be filed with the magistrate judge who authorized the search in the first place: Bruce Reinhart, who Trump has assailed without basis as biased against him.

As Politicos Kyle Cheney notes:

The back and forth comes a day before Trump will make his first bid to convince an appeals court panel to grant him the same deference that Cannon did when she blocked the Justice Departments criminal review of the national security secrets stashed at his Mar-a-Lago home.

Exit take:

**

Its still early days, but this could get messy: Texas sheriff opens criminal investigation into Martha's Vineyard migrant trips.

[Bexar County Sheriff Javier Salazar] said that 48 migrants appeared to have been lured under false pretenses into staying at a hotel for a couple of days before they were flown to Florida and Marthas Vineyard.

They were promised work, he said. They were promised the solution to several of their problems.

He said a recruiter was paid a "bird dog fee" to gather roughly 50 people around a San Antonio migrant resource center.

The asylum-seekers, most of them Venezuelan, were then taken to the posh Massachusetts island for little more than a photo op or a video op, and they were unceremoniously stranded in Marthas Vineyard, Salazar said.

Salazar said his office's organized crime investigators would handle the investigation.

Maybe the feds should get involved, as well?

Speaking of the DeSantis stunt, read Linda Chavez in todays Bulwark: The Cruelty and Dishonesty of the DeSantis Immigration Stunt.

Also: Make sure you check out Judd Legums expos, which JVL summarized yesterday:

None of the migrants were in the U.S. illegally. They were claiming asylum from the regime in Venezuela that DeSantis himself says is responsible for countless atrocities.

DeSantis and his agents lied to the asylum seekers in order to get them aboard the planes. They told the Venezuelan refugees that they were going to Boston in order to get expedited work papers.

DeSantis and officials in his administration then lied to the public, insisting that they did not mislead the refugees.

Legum has a copy of the brochure that the refugees were given:

Popular Information, however, has obtained a brochure that was provided to the migrants who ultimately agreed to the flights. It was provided to Popular Information by Lawyers for Civil Rights (LCR), a Boston-based legal organization that represents 30 of the migrants.

The brochure says that migrants who arrive in Massachusetts will be eligible for numerous benefits, including "8 months cash assistance," "assistance with housing," "food," "clothing," "transportation to job interviews," "job training," "job placement," "registering children for school," "assistance applying for Social Security cards," and many other benefits.

None of this, however, is true.

**

Over at the Dispatch, Nick Catoggio (the pundit formerly known as Allahpundit) takes a deep-dive into the complicated Trump-DeSantis dynamic.

At some point an impatient narcissist will no longer be able to ignore his rivals effrontery, especially if its cutting into his camera time. Its one thing for DeSantis to steal Trumps hand gestures, its another for him to steal the policy issue on which Trump has made his bones as a fighter. The day Trump loses his distinction as King of the Jerks to DeSantis is the day we have a bona fide fight on our hands for the 2024 nomination.

Which is one reason I think his patience with DeSantishis willingness to hold his tongue about the younger manis about to run out.

**

Must-read from Tom Nichols in the Atlantic:

Saturday nights Ohio rally was not a typical Trump carnival, and it was not just ridiculousit was dangerous. His embrace of the QAnon conspiracy theorists represents a new expansion not only of Trumps cult of personality, but of his threats to sow violence.

Despite his seeming inability to remember anything from one thought to the next, Trump has a kind of lizard-brain awareness of dangeronly to himself, of coursethat guides him when hes faced with threats. His reflex in such situations is to do whatever it takes to survive, including bullying, lying, threatening, and allegedly breaking the law.

He is in political and legal jeopardy now, and he has decided to escalate his war against the rule of law, the American system of government, and the American people by embracing and potentially weaponizing QAnon.

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Grim, but important, read from Major Garrett and David Becker, excerpted from their new book, The Big Truth: Upholding Democracy in the Age of The Big Lie which is out today.

Americas second civil war could start with a bang or with a whimper. It could begin with a skirmish or sneak up on us through a series of small compromises and acts of political cowardice. Civil war could announce itself loudly and bloodily, leaving no doubt as to its awful entrance. Or it could creep in through the back door, only to be recognized in hindsight as a series of seemingly disconnected events that could have and should have been stopped. We may be midstream in such a flow of events already. We now examine this possible future as if we have just emerged from its aftermath.

Republicans had a strategy for downplaying the issue through the midterms, writes Will Saletan. So much for that.

If youre devoutly pro-life, it can be exhilarating to watch a politician flaunt his resolve to prohibit all abortions in every state. But if youre pro-choice, its alarming. And if youre McConnell, its a headache. McConnell just wants to make things easy on Republican senators and Senate candidates. He doesnt want Ron Johnson, Mehmet Oz, Adam Laxalt, and other purple-state GOP nominees to be put on the spot about a federal ban.

Apparently, Graham does. In the interview, he exhorted pro-lifers to hold Republican lawmakers feet to the fire. Without using McConnells name, he called for a direct assault on McConnells position. Heres the question for the pro-life movement: Are you going to accept the Republican party who tells you Washington is out of business? Graham asked. I dont think you will. I dont think you should.

Donald Ayer writes that no one should think Barr is having second thoughts about the awful things he did in office.

Credit for moving the public discussion closer to reality is one thing, but no one should think that Barr is having second thoughts about the awful things he did in office. To the contrary, Barrs recent trashing of Trump in a manner likely to greatly impair his presidential prospects makes perfect sense when one understands the driving convictions and objectives that have guided him throughout his adult life.

In todays Bulwark, Cathy Young writes about a recent PEN symposium:

Obviously, most writers working in liberal democracies in 2022 are not in danger of being sentenced to death in absentia for their writings, or of being confronted by a fanatical and armed would-be enforcer of that sentence. (A Twitter death threat is not quite the same thing.) And yet the theme of free expression in jeopardy, not just in dictatorships but here in the United States, dominated the discussion. In her introductory remarks, Nossel noted that PEN America was committed to resisting encroachments on speech from both right and left, be they attempts to remove unwelcome books (particularly ones with LGBT themes) from school libraries or pressure to restrict free speech on college campuses.

This political evenhandedness was evident through the evening. The so-called library wars, which sometimes include actual and disturbing harassment from the right as well as illiberal legislative action, were repeatedly and duly noted; Ayad Akhtar even asserted that we are in the midst of the most significant repression of free speech by American legislatures in his lifetime. And yet all in all, perhaps more attention was paidat an unquestionably left-of-center gathering before a liberal New York audienceto the dangers of zealotry on the social justice- and identity-focused left.

Sounds reasonable and not at all batshit crazy.

Meanwhile, in Georgia:

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Did DeSantis Really Think This Through? - by Charlie Sykes - The Bulwark