Ever since he attained the age of majority some four decades ago, Terence Hamilton, now 57, has voted in Mississippi’s Second Congressional District, covering 30 counties across the western part of the state. First drawn in 1986 to comply with the Voting Rights Act, the district’s scope has shifted somewhat over the years. But the bottom line has been a majority-black district in a state where African Americans comprise 38% of the population.

Like many of his black neighbors, Hamilton has reliably backed the district’s incumbent US representative, Democrat Bennie Thompson, who’s held his seat since 1993. But the US Supreme Court has now disrupted the pattern, holding that the Voting Rights Act doesn’t require states to draw majority-minority districts like Hamilton’s. In response, Mississippi Republicans have rushed to redraw the state’s electoral map in a manner that is certain to dilute black votes.

They’re doing this, of course, in the name of colorblindness.

Meanwhile, nearly 1,000 miles away, Ethan Chen, aged 18, is preparing to attend Georgetown University, not far from his family’s home in Bethesda, Md. It is a bittersweet transition for Chen, who had always considered Georgetown a “safety school.” His dream was to attend either Stanford or one of the Ivy League schools. But during the winter and spring, he received one rejection letter after another, despite a perfect grade-point average and equally impressive test scores.

How did this come to be, after another high-court ruling that barred colleges from discriminating against white and Asian applicants in the name of “affirmative action”? Chen, of course, will never know what exactly went into admissions officers’ decisions to reject him. What he does know is that many schools have continued to use essays and other “soft” factors to practice affirmative action and racecraft under another name.

The college officials, too, claim to uphold colorblind justice.

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How AI will change society

By Glenn Loury

These two stories — based on composite characters — illustrate the paradox of race and colorblind justice 250 years since the Declaration of Independence proclaimed that “all men are created equal.” The two recent Supreme Court decisions — on affirmative action and on voting rights — have clarified something profound about American public life. They reveal that two-and-a-half centuries since the Founding, we are trying simultaneously to transcend race and to manage its consequences and even “win” on racial terms. These ambitions pull against one another, suggesting that race will continue to indelibly stamp the American experience.

Consider the parallel nature of the two decisions. In Students for Fair Admissions v. Harvard, decided in 2023, the Supremes prohibited universities from explicitly using race in admissions. In Louisiana v. Callais, they sharply constrained the use of race in congressional redistricting under the VRA. On the surface, both decisions advance the same constitutional ideal of “colorblindness”: government should treat citizens without regard to race. Yet in practice, both rulings immediately generated what one might call a politics of proxies.

Universities didn’t abandon the pursuit of racial diversity after the high court proscribed affirmative action. Rather, university leaders shifted emphasis toward other considerations, some of which are strongly correlated with race: economic hardship, neighborhood disadvantage, first-generation status, personal adversity, and essays narrating the experience of marginalization. Formally speaking, these are race-neutral criteria. But everyone understands that they may also function as indirect means of sustaining black and Hispanic representation at selective institutions, as they appear to be doing.

Meanwhile, in the voting-rights context, a similar proxy logic holds. Red states attacking minority-majority districts increasingly invoke race-neutral partisanship, rather than race, as the guiding principle of line-drawing. Since black voters in much of the South overwhelmingly support Democrats, partisan gerrymanders often produce substantial racial consequences without having to explicitly classify voters by race.

The symmetry is striking. In both cases, non-racial instruments are being employed that have predictable racial effects. But political partisans see the cases differently. Conservatives who object to universities using race-correlated proxies to preserve minority enrollment often defend partisan districting as constitutionally neutral. Meanwhile, liberals defend “holistic” admissions criteria as part of a legitimate effort to broaden opportunity. This, even as the Left often condemns partisan gerrymanders precisely because their racial effects are foreseeable. Both sides, in other words, alternate between formal and substantive understandings of equality depending on context, thus illustrating what I call the colorblindness paradox.

This suggests that the stakes are deeper than ordinary partisan inconsistency. The real problem lies in the incoherence of colorblindness itself when race remains deeply embedded in the social structure. For decades, the Supreme Court has increasingly embraced a view of the Constitution that is suspicious of racial classification. The central danger, in this account, is the government sorting citizens by race and allocating benefits and burdens on that basis. This principle — suspicion of government racecraft, even when it’s used for “positive” or non-invidious reasons — dominates the high court’s equal-protection jurisprudence. Rightly so, in my view.

But implementing that principle is another matter altogether. The difficulty here is that race in America remains highly correlated with countless other variables that public institutions may legitimately consider when allocating scarce benefits or opportunities. Educational attainment, neighborhood quality, wealth, family structure, social networks, geography, and partisan affiliation — all continue to bear the imprint of racial history. And they all are relevant when exercising the government’s discretionary powers.

As a result, banning explicit racial classification needn’t preclude racially differentiated outcomes. It merely changes the mechanisms through which those outcomes are pursued — or avoided. The colorblindness principle provides little guidance here. This is why our public arguments about colorblindness increasingly revolve around debates over the use of proxies.

Take college admissions. If a university gives special weight to applicants who overcame severe educational disadvantage, is it pursuing a morally defensible concern for human development? Or is it covertly pursuing racial “balancing”? The answer isn’t obvious, since the non-racial criteria that serve as proxies for race are themselves neither arbitrary nor irrelevant. Educational disadvantages are real. Unequal access to stable schools, family resources, mentoring networks, and social capital is real. Moreover, non-racial criteria that correlate with race may genuinely identify talented students (of all races) whose capacities were developed under adverse conditions. Thus, it is legitimate for an admissions process to consider them.

But such consideration also predictably shapes the racial composition of entering classes, and it is plausible to suspect that this is precisely why some institutions are using them more heavily now than before the 2023 anti-affirmative-action ruling. If so, those institutions are violating the spirit if not the letter of the court’s holding, as Chen in our narrative learned to his chagrin.

Or consider redistricting. A legislature produces a map to maximize Republican advantage, knowing that such a map will reduce black electoral concentration. Is this merely ordinary political hardball with unfortunate racial side effects? Or is it something uglier — partisanship masquerading as a cover story for anti-black animus? Again, the answer isn’t straightforward. Political affiliation is itself a legitimate organizing principle in democratic politics. Yet in a society in which race and party remain so tightly aligned in some regions, the distinction between partisan and racial intent is hard to discern.

The difficulty here is that, while the court can forbid the explicit consideration of race, it can’t forbid the use of statistical signals that correlate with racial identity. Everything turns on the motivations of officialdom, which aren’t easy to determine.

This points toward a deeper conceptual confusion in our racial discourse, which arises from our conflating two very different ideas: racial blindness and racial indifference. A society may prohibit explicit racial classification while remaining intensely concerned with racial outcomes, embracing blindness while rejecting indifference. Indeed, that is precisely our current situation. Universities remain deeply invested in racial diversity even after affirmative action. Voting-rights advocates remain deeply invested in preserving black political representation even after the court’s retrenchment. The disappearance of explicit racial language hasn’t produced indifference to racial disparities. It has simply displaced racial management, and racial politicking, into more indirect forms. This distinction matters, because it exposes the limits of purely procedural solutions to racial inequality.

I have spent much of my professional life arguing that durable inequality isn’t sustained merely by discriminatory transactions at the point of selection. It is sustained through differences in social development — differences in the networks, norms, institutions, and cultural practices through which human capacities are formed. Opportunity travels along the synapses of social networks. Human-capital formation depends upon family stability, educational culture, neighborhood order, mentoring relationships, and access to trusted institutional pathways. These developmental processes unfold long before a university admissions office reviews an application or a legislature draws district boundaries. And racial identity figures prominently in these processes of social development in the United States.

This is why legal and administrative efforts to engineer proportional representation at the endpoint often feel unsatisfying. They attempt to correct downstream disparities via anti-white “reverse discrimination,” which the Supreme Court now decries, while leaving untouched the upstream developmental inequalities from which those disparities partly emerge.

And there is another drawback to the method. Formal neutrality can itself become morally evasive if it ignores the historical conditions that continue to shape social outcomes. A society can’t simply declare itself colorblind and thereby escape the consequences of its past. The legacy of racial exclusion remains embedded in institutions and inherited patterns of advantage and disadvantage. The Terence Hamilton in our opening narrative might be the great grandson of a slave and the son of a father who endured de jure racial apartheid. Those historical realities and their consequences don’t disappear the second a court in Washington holds them irrelevant.

Thus our predicament: the paradox of colorblindness. On the one hand, permanent racial management threatens to entrench precisely the kind of group consciousness that a liberal democracy ought to transcend. A political culture organized around endless racial accounting risks weakening common citizenship. The more every institutional disparity is interpreted through the lens of racial representation, the harder it becomes to encounter one another simply as fellow citizens. On the other hand, abstract invocations of neutrality may fail to reckon adequately with the developmental realities that shape unequal outcomes in the first place.

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By Anatol Lieven

America oscillates between these two poles because we seek both transcendence and remediation. We wish to become a society in which race no longer governs public life. Yet we also seek to offset the stubborn consequences of racial history. These goals aren’t fully compatible.

Indeed, the deeper paradox may be this: the more persistently racial disparities remain visible, the harder it becomes to sustain genuine colorblindness. But the more aggressively institutions organize themselves around racial outcomes, the harder it becomes to achieve a society in which race recedes in civic importance. No constitutional doctrine can fully resolve this tension, because it doesn’t arise merely from law. It arises from the unfinished social condition of the nation itself.

I supported affirmative action many years ago because I regarded it as a temporary bridge across inequalities inherited from Jim Crow. I remain sympathetic to the moral impulse behind such policies. But over time, I have grown skeptical that endless procedural adjustment at the point of selection can substitute for the harder work of social development. Nor do I believe that a healthy republic can indefinitely sustain a politics in which every important institution is expected to produce racially calibrated outcomes.

The Supreme Court’s recent interventions are therefore both understandable and welcome, but they are also incomplete. They reflect an effort to limit explicit racial administration in public life. Yet they can’t eliminate the underlying realities that make proxy politics inevitable, and inscrutable, in the first place.

For that reason, the real challenge before us isn’t simply legal. It is civic and developmental. If we want a politics in which race matters less, then we must build a society in which the capacities required for flourishing are more broadly and deeply cultivated across all communities. No amount of doctrinal refinement can spare us that obligation.

The paradoxes will remain. But 250 years after a 33-year-old Thomas Jefferson penned his majestic words, perhaps we can at least begin speaking about them honestly. Indifference to the roots of racial inequality is actually inconsistent with achieving colorblindness in the conduct of our public affairs.

In the context of the case itself, the fact that black voters comprise roughly a third of Louisiana’s population, the court held, doesn’t automatically require the state to redraw its congressional map to give that group proportional representation in a third of its six congressional seats. Writing for the majority, Justice Samuel Alito reasoned that Section 2 remedies require a clear showing of racial animus — “a strong inference that the state intentionally drew its districts to afford minority voters less opportunity because of their race.”

Mainstream liberal headlines greeted the ruling as another cruel blow to democracy, another attack on racial minorities, another dark day in civil-rights history. NAACP President Derrick Johnson declared it “a major setback for our nation that threatens to erode the hard-won victories we’ve fought, bled, and died for.” Former President Barack Obama warned that the decision frees “state legislatures to gerrymander legislative districts to systematically dilute and weaken the voting power of racial minorities — so long as they do it under the guise of ‘partisanship’ rather than explicit ‘racial bias.’” Liberal Justice Elena Kagan stood to read her dissent aloud from the bench, a rare gesture used to underscore her strong disagreement with her colleagues.

These liberal stalwarts aren’t entirely wrong that something significant has ended. But what has ended isn’t the protection of minority voting rights. What has ended is a decades-long political strategy that used the moral language of civil rights to accomplish something the civil-rights movement never actually intended: the expansion of deliberate racial sorting of American voters into engineered electoral districts designed to favor the Democratic Party.

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Anti-Trump judges sparked a legal crisis

By josh hammer

The concept of “using race to fix race” is a pillar of the legal architecture that arose from the 1960s civil-rights era: affirmative action in college admissions and employment being its most explicit and controversial examples. But “using race to fix race” was never understood to be a feature of the Voting Rights Act. Congress designed the VRA to stop state governments from excluding minorities from the ballot box — not to mandate racially engineered outcomes.

But decades after the civil-rights movement, something shifted in how Democratic-aligned rights groups understood the VRA. The law stopped being primarily a shield against racial discrimination and became a sword to expand minority political power by compelling states to draw new districts. Strangely shaped maps that snaked across counties and clustered racial minorities into artificial majorities were no longer per se bad. They could be a useful tool, so long they benefited Democrats. (To justify their gerrymandering, liberal civil-rights litigation recasts residential racial integration — one of the genuine achievements of the post-civil-rights era — as intentional “vote dilution,” requiring the judicial remedy of clustering racial groups into artificially drawn maps.)

That strategy accelerated after the Supreme Court’s 2013 ruling in Shelby County v. Holder, which gutted the Section 5 provision of the VRA that had required states with a history of discrimination to get federal preapproval before changing their election rules. Stripped of that powerful administrative lever, liberal groups turned to Section 2, the VRA’s general anti-discrimination provision, to litigate similar outcomes through the courts.

Over the following decade, a web of organizations — the NAACP Legal Defense Fund, the ACLU Voting Rights Project, the Lawyers’ Committee for Civil Rights, LatinoJustice, and a constellation of Democratic-aligned law firms led by the Elias Law Group — went into action. They turned to a 1986 Supreme Court precedent to advance the theory that Section 2 requires the creation of majority-minority districts wherever the demographic math could be made to support one. 

With this logic, these groups won federal court orders in dozens of redistricting cases compelling governments to redraw maps at every level, from school boards in Alabama to statehouses in North Dakota and Mississippi. The targets expanded with each cycle: first majority-black districts, then majority-Latino, then Native American, and, most ambitiously, “coalition districts” combining black, Latino, and Asian voters into a single legally protected class.

The deeper problem with this strategy is one mainstream coverage consistently refuses to examine. Racial clustering isn’t an expression of civil rights. Deliberately drawing maps that concentrate people by race is a form of segregation, regardless of the political justification. It was wrong when white Southern legislators used it to dilute Black voting power in the 1960s. It is wrong when liberal lawyers use it to manufacture safe Democratic seats today. 

The principle doesn’t change based on who draws the map.

What the Democratic civil-rights industrial complex built was, at its core, a system that treated black, Latino, and Asian voters not as individual citizens with rights to be protected, but as demographic raw material to be sorted and clustered to the party’s benefit. In 2024, not a single Republican won a majority-minority district anywhere in the country. Instead, these were guaranteed seats for Democrats with no competition, no accountability, and no reason for an elected Democratic representative to do anything other than perform the expected cultural politics of their carefully created constituency. 

The question worth asking, which the Democratic Party has thus far avoided: what did those guaranteed seats deliver for the racial minority communities they were designed to represent? The most Democratic-run cities in America, anchored by these safe majority-minority districts, are also among the most expensive, most unequal, and most poorly managed. Guaranteed seats for Democrats didn’t produce good government. Instead, they set a permanent stage for racial grievance politics that reliably generated fundraising and turnout while delivering remarkably little in the way of material improvement for these captive constituents. 

The new Callais ruling curtails the ambitions of the liberal coastal elites who control the Democratic Party and its various legal and advocacy apparatuses from expanding this captive electoral model through Section 2 of the VRA. There will be short-term costs, to be sure. Republican state legislatures will redraw maps. Some black and Latino Democratic incumbents will face genuinely competitive races for the first time. 

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By vincent lloyd

But discomfort for a political party and injustice for a minority racial group aren’t the same thing. Minority voters dispersed into competitive districts produce something the majority-minority district system never could: real pressure on candidates of both parties to earn those votes. In the long-term, the GOP will have to compete for black voters in Georgia, Latino voters in Texas, and working-class minority voters across the South. This is a better arrangement than one that would simply corral those voters into packed Democratic districts. It also allows Republicans the time and opportunity to build persuadable platforms to absorb the coming demographic wave of post-1960s naturalized Americans voters and their offspring, who will play an increasingly important role in future elections.

As for the Democrats, the high court has effectively curtailed the efforts of party operatives to use the VRA to lock in more racial minorities in state redistricting following every US Census. This is a decidedly good thing, because majority-minority districts for decades have left black and Latino voters captured by one party with nowhere else to go. The result was a party that allowed itself to believe that symbolic representation could replace actual representation; and that racial-justice rhetoric could be substituted for material economic results. 

For many observers, it has been obvious for some time that the long-term Democratic strategy was to use Section 2 to create more majority-minority maps, eventually allowing the “coalition district” concept to be held constitutional to cluster two or more racial minority groups to create new districts as the demographics of the United States reflect not just greater number of Hispanic and black voters, but increasing numbers of Asian immigrants.

Long term, Callais is about something larger than redistricting. For more than 60 years, since the passage of the major civil-rights legislation, race became the organizing logic of Democratic electoral strategy because racial sorting was electorally useful. It filled campaign coffers, it guaranteed political seats, and it gave consultants and lawyers and civil-rights organizations a lucrative and powerful position near the center of the party’s operation. The latest court ruling sets the upper limits of the legal architecture the party sought to expand to capture an increasingly diverse electorate. Now if the Democrats want new voters, they will have to earn them.

Jordan watched porn “almost daily” as a teen and in his 20s, and overlaid porn scenarios onto all his sexual experiences. When he finally quit, he noticed that he “had more energy and ambition, significantly less social anxiety; I felt more tenderly toward my now-wife; I wasn’t as tired in the morning; my thinking was clearer.” Castro noticed during the quitting process that his impulses to view porn occurred not when he was “horny,” but when he was “bored or stressed.”

This, and the statistics on teenage porn use — the average American boy is exposed at age 13 — are enough to horrify any parent and to produce the strong conviction that something should be done. “It’s becoming a bigger topic,” says Gail Dines, the CEO of Culture Reframed, an organization of scholars addressing the harms of pornography to youth. “This has become a public-health issue.”

Today, the something being tried is age-verification laws, enacted by 20 states, though most have been blocked by legal challenges until recently. In June, the US Supreme Court upheld a Texas law, one of the nation’s most aggressive, meaning these laws will likely eventually take effect. Utah Sen. Mike Lee has also proposed national legislation along the same lines. Our strong convictions, however, might be our downfall in terms of preventing kids from watching porn, and the parent who really wants something done would do well to pause and think it through.

Legally, the debate on age verification has centered around the First Amendment. The latest decision, Free Speech Coalition Inc. v. Paxton, held that the government’s interest in protecting children from porn outweighs adults’ rights for unfettered access to this form of speech. The decision lowered previous standards of scrutiny because, as time has shown, alternatives to age-verification, such as content-filtering software, haven’t worked. None of this is wrong, per se, but it’s a narrow approach by definition. Judges respond to existing law; lawmakers respond to constituent demand; neither group is necessarily thinking globally about the whole picture.

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Test article

By Valerie Stivers

Since being galvanized by Castro’s post, I have been exploring the available parental-control options to protect my teenage son from pornography, and I’ve been struck by the disconnect between the solutions and basic realism regarding human behavior.

There are two flavors of child-protection: one involves greater surveillance than the other. In the first model, the parent can enable “family sharing,” which allows them to personally monitor their child’s devices, or they can use an app, which monitors the devices for them using AI. (All of my research has been done on Apple devices.) This requires a parent to be comfortable with total child surveillance — I am not — and to have a proactive, tech-savvy personality.

The less-intensive approach is to set up blacklisting on adult content, either on your home router or on your child’s devices. The router option is fairly secure, but it only catches devices on the home WiFi, and requires a high degree of confidence with technology (starting with knowing which box is the router). The option on the device itself is an easier setup but is inconvenient to manage and not very secure. I, for example, locked my son’s laptop using an admin account, and then had to unlock it every time he needed to do daily things like downloading a math app, which always occurred when I was cooking dinner. Then I lost the password and my enraged son went online and figured out how to delete the admin account.

None of these methods is designed for a wide range of people to easily use them. To be clear: all children should be protected from pornography, not just those who live in states with age-verification laws, or those who have tech-savvy parents. One problem is that most of the solutions, in the fine tradition of vapid safety-ism, are designed to do much more than combat porn. Years ago, my brief experiment with setting up a child account on Apple for my daughter ended when it prevented her from using Instagram or watching YouTube. These may be commendable goals, but they bundle a necessity that almost everyone agrees on — no porn for kids — with more ambiguous cases. Each additional restriction is a new hassle, and a new incentive for the parent to just give up.

The numbers speak to the successfulness of this approach — or the lack thereof. Apple doesn’t release information on how many users opt for family sharing, but one suspects because it’s low. A May 2025 study from the Family Online Safety Institute found that parental control adoption “remains low,” at less than 50 percent, and is inconsistent across devices, with higher adoption on the tablets. And online-safety apps cover a negligible share of children. Bark, one of the more popular, has only 7.5 million users, mostly in the US.

Given all this, government-mandated age-verification might seem like the solution to concerned parents. Louisiana state Rep. Laurie Schlegel, the champion of the first such law in the country, told me that, like me, she first became interested in the topic after hearing personal testimony from a young person negatively impacted by porn — in her case a 2021 appearance by Billie Eilish on the Howard Stern Show. Eilish told Stern that she started watching porn at age eleven, which gave her nightmares and had damaging effects on her later sex life.

Schlegel had been observing her state’s usage of LA Wallet, a digital-ID app, and suspected that Louisiana had the capacity to anonymously implement age verification. “The technology is very much available where you can protect someone’s privacy,” Schlegel says. “All [LA Wallet] does is send a signal to the website. It’s not your ID. It just says Hey, this user is over 18.” Louisiana’s law, like the Lone Star State’s, relies for enforcement on the government’s ability to sue companies not in compliance.

But this, too, fails to take realistic human usage into account. The rub, as opponents have pointed out, is that most people just after searching “anal,” “gang bang,” or whatever, really don’t want to provide their identification, even if it’s supposedly anonymous and secure. Comparisons such as those to age verification for online gambling fall flat. Paid porn users already provide their credit-card information, but paid users are an unknown and smaller percentage of total users. Some paid content is also à la carte, meaning the users have been drawn in by free content and then convinced to upgrade while their defenses are down.

PornHub has argued that age requirements will result in users navigating to other sites that the law hasn’t yet caught up with. This is self-interested but also plausible: between ravenous user demand and porn-supplier self-interest, the laws could easily provide powerful incentives for the already shady porn market to move away from porn supplied by large, centralized, easy-to-sue companies into less policeable structures and jurisdictions. It would be nice to think these laws will work, but we’re guessing.

The reply of the frightened parent is: who cares, let’s try it. But if the laws break up the big, easily accessible aggregators, we’ve set ourselves back another generation of children addicted to porn while we figure that out. And we’ve also lost the potentially potent blacklisting tool, which works as well as it does because the companies are well-known and stable. As I look at my family’s situation, I see porn not as a shadowy globe-spanning operation that should be conquered lawsuit by lawsuit, but as a problem that enters our home on specific devices, each one from a massive company with enormous technological capabilities and no realistic ability to disband and become fly-by-night. Our lawmakers should make them responsible.

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By Sarah Ditum

I’ve programmed my home router, which is rented from Spectrum, to use OpenDNS, an IP solution that blocks traffic to blacklisted adult sites. OpenDNS is one of many services that can block a high percentage of porn sites (estimates run up to 98%), which is already a huge improvement, especially since it gets the big ones kids are more likely to know. One imagines that with more resources thrown behind it, the black list could be even more comprehensive. (OpenDNS is owned by Cisco, which did not reply to my requests for comment.)

So why can’t the option of a porn-locked router be offered at the point of sale? Many parents might choose this if they had the easy option. And it’s much less onerous for the adult porn-user to just choose an adult-content router in the first place, rather than supplying an ID every time they want to watch adult content. Routers can also be programmed to porn-block some devices in the home and not others, so the adults can flourish, while the children are safe. Custom-programming your own router is too much for the average person, but it could easily be done by the ISP’s tech support, either on the phone or at installation — if companies were required to offer this service by law.

Our computers, phones and game consoles could also, I suspect, come with adult-content blocking, to be enabled or not at the point of purchase. An AI-fueled app like Bark costs $14 a month, which to some extent reflects the computing cost of incessantly scanning for adult content but could probably cost less if it were being powered by Apple. (Bark does much more than this, which is fatal mission creep to my purposes, but this is the fine print.) Apple and similar firms could create a widget like Bark, opted into or out of at point of sale. Or Apple could invent something better if it were legally incentivized to do so, and if its engineers were reined in from stupid bells and whistles. In addition, all internet browsers could be legally required to come locked (via the existing and powerful blacklist technology), with ID verification required to unlock them.

It’s unconscionable that the tech companies themselves haven’t already taken the lead on this. Our wealthiest and most powerful companies pump unrestricted access to hardcore porn to our children, scot-free. A conspiracy-minded person might suspect that the tech companies want it this way, because the rumors about technology uptake being mostly fueled by porn consumption are true, and they want to addict us young. A less apocalyptic theory is simply that the bros designing this stuff don’t really have their hearts in it and have no sense of the average, tech-phobic American family experience.

Blacklisting isn’t perfect, and a clever child could probably get around many of these features. But that’s why limiting them to pornography is so essential, giving clever children no reason to do so unless they’re truly determined to navigate to actual porn sites. Don’t block popular video games. Leave Instagram and TikTok alone. Don’t pointlessly require parental approval for the math app. Don’t make life so inconvenient for the porn users that they find new and unregulated delivery methods. And save little Jordan Castro.

The Protestant Reformation was ignited when accepted Catholic practices were carried to extremes that became abusive — most notably simony (selling church offices) and indulgences (pardons purchased to get out of purgatory), neither of which had any basis in scripture. Once begun, the Reformation was seized upon and accelerated by ambitious German princes who sought to free themselves from the financial and political influence of the pope. The Catholic Church eventually stopped selling bishoprics and forgiveness, but not before the fabric of European civilization had been torn asunder.

Much as 16th-century Europe was anchored by respect for religious institutions, the United States is today united by respect for its Constitution, a sacred document to which citizens, civil servants, and the military all regularly swear allegiance. Unlike the constitutions of France or Germany, which have changed with the political seasons, the American Constitution has functioned effectively for nearly 250 years.

Yet nowhere does the Constitution give any one of 677 unelected district-court judges the authority to block the policies of an elected president, as they’ve been doing regularly for the past decade by issuing nationwide injunctions. These injunctions cover everyone in the country, not just those who brought the case. Yet the use of sweeping injunctions is a manufactured practice created by legislation, but not found in the Constitution. And like simony and the sale of indulgences, it has been abused by excessive use. It needs to stop.

Do not scoff at the possibility of a constitutional reformation. For centuries, the pope was a powerful and respected figure throughout Europe, until one day he wasn’t. Today our judiciary is powerful, but there is a large element of faith and mystery upholding respect for the Supreme Court. The justices reside in a building designed to resemble a Roman temple. They appear in costumes resembling the robes of a high priest and inform us that, like oracles, only they are qualified to decipher the constitution. As with the papacy, faith in the Supreme Court will quickly evaporate if it is seen to endorse the widespread abuse of contrived practices not found in scripture.

The facts speak for themselves. Issuing nationwide injunctions to block executive orders has become a routine partisan tool. In Donald Trump’s first term, 64 nationwide injunctions were issued against him, of which 92% were granted by Democrat-appointed judges. In the first five months of his second term, 92% were granted have been issued against him — the overwhelming majority coming from just five judicial districts, all of which are located in liberal cities such as San Francisco and Boston. In many recent cases, the terms “arbitrary and capricious” were used to block any executive order the judge disagreed with, including policies many Americans strongly support such as deporting illegal aliens and reducing government waste.

Conservatives have played the same game: Republican judges issued all 14 of the injunctions against President Biden. As a result of all this, citizens are beginning to regard some judges as unelected politicians in robes rather than unbiased arbiters of justice. That should worry all Americans.

Last week, in a 6-3 decision, the Supreme Court dismissed three nationwide injunctions against President Trump. The significance of the verdict is not that it allowed his efforts to reinterpret birthright citizenship to proceed. That issue will return to the lower courts and be decided later. This was a landmark decision because it concluded that Congress never granted trial judges the authority to issue broad relief to individuals who had not actually brought a case before their court.

In the majority opinion, Justice Amy Coney Barrett indicated that nationwide injunctions do not align with accepted practice in either the United States or Britain. She wrote: “The universal injunction was conspicuously nonexistent for most of our nation’s history… Its absence from 18th and 19th century equity practice settles the question of judicial authority.”

It’s worth noting that the Supreme Court looked only at legislation governing court procedures. It did not address the fundamental constitutionality of nationwide injunctions. Therefore, Congress could quite easily pass new legislation reversing this decision.

Regrettably, the decision also undermined the credibility of the court’s three liberal justices. During the Biden administration, when Republican judges issued nationwide injunctions, Justice Elena Kagan stated: “It just can’t be right that one district judge can stop a national policy in its tracks.” Yet last week she voted against ending nationwide injunctions. Regardless of the legal reasoning behind her decision, it appeared to many as politically motivated hypocrisy.

Even more remarkable was Justice Barrett’s public rebuke of the court’s newest member, Justice Ketanji Brown Jackson. Justice Jackson called the majority decision of six more senior judges “an existential threat to the rule of law”. Justice Barrett, who has frequently sided with the liberal justices, essentially told Jackson that she needed to go back to law school, writing: “We will not dwell on Justice Jackson’s argument which is at odds with more than two centuries of precedent, not to mention the Constitution.” She added, pointedly: “We observe only this, that Justice Jackson decries an imperial Executive while embracing an imperial Judiciary.”

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Such division is worrying given that faith in many civic institutions is already in decline. Reporting by the mainstream media is routinely dismissed as propaganda. Following Covid, scientific pronouncements are no longer accepted at face value. Congress is seen as promoting partisan excess rather than national interest. Even the judiciary is no longer immune from growing skepticism. Accurately or not, many Americans consider prosecutor Letitia James and judge Arthur Engoron to have been overtly partisan in Donald Trump’s real estate fraud trial. A Colorado state court actually sought to keep Trump off the ballot only to be overturned by the Supreme Court. As a result of these and similar incidents, a new and troubling phrase has crept into the American vocabulary, “weaponized lawfare”.

Even more significantly, while the Supreme Court decision limited the use of nationwide injunctions, it still allows “class certification” through which courts can issue injunctions affecting a very broad group of people. As Justice Samuel Alito noted, this is “a potentially significant loophole” in the decision. Is there any reason to doubt that judges who were lax in the use of nationwide injunctions will be any stricter in their use of class certification? The failed plaintiffs in last week’s decision have already sought a new injunction under this provision of the law.

The decision neither enhanced the Supreme Court’s legitimacy nor resolved the issue of judicial overreach. The potential for abuse remains. Once a tipping point in public trust is reached, partisan actors, like the German nobles, will seize the issue. They will twist legitimate reform efforts to their own immediate gain, potentially undermining the entire process of judicial review. Every law school professor will tell you the courts have the authority to declare laws unconstitutional. Every one of them also knows that this authority is not found anywhere in the Constitution. It was the self-aggrandizing brainchild of Chief Justice John Marshall who promulgated it in the 1803 case of Marbury v. Madison. It has been accepted because it is generally regarded as useful. So was papal infallibility.

The Protestant Reformation began on All Saints Day 1517 when Martin Luther nailed his 95 Theses to the cathedral door in Wittenberg and publicly declared that selling forgiveness of sins was a fraud. Yet Luther wanted to reform the Church, not dismember it. Pope Leo X could have defused the Reformation, and preserved the unifying stature of the Catholic Church, by ending practices many had come to regard as corrupt.

Luther’s Reformation became a political as much as a religious event. Today, the authority of district court judges has become a political as much as a legal issue. In “Federalist 47”, founding father and president James Madison noted that it is the concentration of power that defines tyranny, not the ends to which that power is used. The power of one unelected, junior trial-court judge to block the policies of a nationally elected president is an unwarranted concentration of power in the judiciary. Hopefully, last week’s decision will end the abuse of judge shopping to block executive orders, but it may not. We do not need a constitutional reformation. We need the Lutherans and Catholics on the Supreme Court to firmly rein in highly partisan district court judges from both parties before someone nails 95 Theses to their courthouse door.

To understand why this isn’t an anti-Trump slam dunk — indeed, why Democrats bound to crash against majority opinion — look no farther than the noir-action classic Dirty Harry, from 1971.

Harry Callaghan — the film’s hard-boiled, hard-hitting protagonist — became Clint Eastwood’s iconic role. A San Francisco police officer, Callaghan becomes increasingly disillusioned with how liberal proceduralism gets in the way of combating his city’s criminal element. In response, he tortures a depraved serial killer to get him to tell him where his kidnapped victim is, and ultimately shoots the man dead when he could arrest him. The movie ends with Callaghan throwing away his badge.

He knows he can’t pursue justice while upholding the law — or at least, the law as Earl Warren-style judges and prosecutors defined it.

At the time, Left-of-center critics railed against the film’s politics, even as many conceded its unquestionable artistry. The late Roger Ebert called its message “fascist”, while the legendary reviewer Pauline Kael called it “deeply immoral”. The New Republic, then as now the organ of mainstream liberalism, called it “disgusting”.

Yet audiences loved it. Eastwood went on to make four sequels, and even his subsequent career as an Oscar-winning director hasn’t overshadowed Harry in public consciousness. President Ronald Reagan even went so far as to use one of Callaghan’s catchphrases (uttered as he’s about to shoot a criminal): “go ahead, make my day”.

It’s easy to see why the character struck a nerve on both sides. Progressives devoted to procedural rights found Callaghan’s legal shortcuts revolting. But for many others, Callaghan was vindicating a deeper moral precept: namely, that when the law prevents justice, justice should triumph, all the same.

Team Trump is relying on this same principle to maintain public support for the rough justice of its immigration policies. People want to obey the law, and they revere the rule of law. But when the law no longer serves justice — when it systematically works to the advantage of scofflaws and criminals — their sympathies shift. They want justice first and foremost, not the rigorous adherence to procedure. The results can be, and often are, troubling. But once public opinion reaches this stage, arguing against it is like arguing against the weather: it is what it is.

The conflict between law and a deeper justice is at the heart of the public debate over Garcia’s fate. It is undisputed that he was wrongly sent to El Salvador in violation of a court order. Nor is it unclear that a unanimous Supreme Court has ruled that the Trump Administration must “facilitate” Garcia’s return to the United States. In other words, it is clear that as a matter of law, Garcia should come back to the United States.

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But Team Trump and their adherents are playing the justice card. They note that a local law-enforcement agency and the Department of Homeland Security determined that Garcia is a member of the infamous MS-13 gang. He has also been credibly accused of being a wife-beater by his own wife, who filed a police complaint in 2021 alleging that his beatings left her bleeding. He is apparently a “bad hombre”, the type of man Trump has consistently said needs to be expelled from the country.

Law versus justice. Democrats argue that the legal violation is more important than the man he apparently is. Team Trump says it’s more important to protect the safety of the many than the procedural rights of the malefactor. The American majority is likely to side with the Trumpians, for the same reason it cheered Eastwood’s Callaghan.

That’s not to say that Trump’s actions aren’t troubling. The law should be followed, and it’s clear that Garcia can be deported if the charges are true. Conservative columnists Ross Douthat and Byron York each contend the right solution is to bring Garcia back, give him his due process, and then deport him to another country. That seems like the reasonable thing to do, and it’s troubling that the administration seems uninterested in pursuing it.

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It’s also disturbing that the administration is seemingly ignoring a unanimous Supreme Court. The court’s conservative majority will be the only block against Democratic power if they return to power. Disregarding a Court order might look good to MAGA now, but the Trumpians will rue the day when the tables are turned on them.

But none of that is getting traction now because of Garcia’s history, which looks worse by the day. Americans, especially on the Right, are distrustful of institutions in record numbers. Trump voters are especially distrustful of judges after watching the system be perverted by the years long lawfare campaign mounted against Trump.

The Biden administration’s blatant refusal to enforce the laws against illegal migration, and its twisting of laws regarding refugee status to enable that refusal, also harden conservative hearts. This disobedience of the law, purportedly to pursue justice, is why we have so many hardened gang members and criminals in the US homeland today.

Trump voters will happily say what’s good for the goose is good for the gander and look the other way as their man gets rid of the bad guys — and, no doubt, some innocents — by whatever means necessary.

This spectacle will go on for a while as both sides seem dug into their current positions. Trump thinks it’s good to be on the side of the popular sense of justice and public safety, while Democrats think it’s good to be on the side of judges and the law. Neither has the incentive to actually solve the problem, either for Garcia’s case or for the many similar cases that will surely arise as Trump’s mass deportation ramps up.

But politically speaking, it’s Democrats who are likely to pay the higher price. Democrats once had public opinion on their side regarding immigration. Before then-President Joe Biden allowed millions of people to stream across the border, Americans opposed Trump’s immigration policies. Today, CNN political analyst Harry Enten points out that a clear majority of Americans supports Trump’s policies and backs the immediate mass deportation of all illegal migrants.

Mistakenly deporting a “bad hombre” is exactly the mistake Americans today will tolerate, if it means undoing four years of Biden’s mess. That conclusion will outrage liberals and Democrats. But they should know better, as this is exactly the course the country took as crime rose between the Sixties and Nineties.

A country that once veered toward protecting the rights of the accused when their streets were basically safe increasingly demanded strict law enforcement and longer jail terms. President Bill Clinton’s shift toward this position, encapsulated in the 1993 crime bill that hired 100,000 more police officers and cracked down against crime, was one reason he was able to win as a “New Democrat”.

Democrats belatedly realized back then that they could not win national elections by catering to their liberal base. They seem light years away from accepting reality today, captured as they are by a base that wants nothing more than to see their representatives fight everything Trump does.

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Trump and Republicans should realize, though, that public forbearance in this case doesn’t extend to all conflicts with judicial orders. Even Trump voters don’t think he should ignore court orders with respect to immigration cases, and an overwhelming majority (78%) of Republicans generally believe he must obey Supreme Court orders.

In other words, when law doesn’t clearly prevent justice, Americans back the rule of law. Politics is always about public opinion. As Abraham Lincoln said, “with it, nothing can fail; against it, nothing can succeed”. On the Garcia case, public opinion is and will remain with Trump. On the broader question of the rule of law, however, it is squarely with the court system.

Democrats, and Trump, should take heed.

Thanks to the tenacity of grassroots organization For Women Scotland in fighting several cases through the courts, judges at the highest level have now clarified that a man — with or without a Gender Recognition Certificate (GRC) — does not belong in any woman-only prison, hospital ward, dormitory, rape crisis service, or changing room. If trans-identified, he is rightly shielded from discrimination and harassment under the protected characteristic of “gender reassignment” but not those of “female” or “lesbian”. This classification also means that, if he’s a medical professional, he is not allowed to provide intimate care to unwilling women on the spurious grounds that he, too, is female. As a police or prison officer, he may not carry out strip searches of his “fellow women” either. His presence in the upper echelons of a workplace does not count towards feminist empowerment there. His athletic personal bests can no longer break female records, nor his football and rugby tackles break female bones.

Additionally, no matter what his personal confusion over identity, he does not get to count as a “lesbian”, and nor does he get to gatecrash designated lesbian-only social events or dating pools. (This last finding was of particular delight to me, since the organization I co-direct with Julie Bindel, The Lesbian Project, was one of a number of “lesbian interveners” in the Supreme Court case.)

This judgment was a humiliating failure for certain members of the Scottish government past and present, not least the former First Minister Nicola Sturgeon. The ministers’ position, that Equality Act protections for sex and sexual orientation pertained to “certificated” sex, rather than biological sex, was said by judges to exhibit “incoherence and absurdity” — a description which, to seasoned observers of SNP-related gender fiascos, seemed altogether too kind. But the result was also a wider defeat for the US transactivist movement as a whole: the end of a campaign so catastrophically overreaching and self-owning that it has to be up there with Operation Barbarossa.

Around 10 years ago, most organizations didn’t think twice about the relation between the Equality Act and the Gender Recognition Act, and were prepared to turn a blind eye to both men and women with GRCs using the facilities and services of the opposite sex. Given the small numbers of trans-identified people making use of this privilege, and the fact that many of these people exhibited medically-induced physical changes, the general public was none the wiser, and most wouldn’t have cared if they had been. But then transactivist organizations had the brilliant idea of pushing for a shiny new prize called “self-ID”. Any man with surging feelings of inner girlhood should count as a woman for all legal purposes, and vice versa for any woman in touch with her inner man. All of a sudden, there was supposedly no need for any certificate at all, and certainly no previous encounter with any doctor.

If one of the now-burgeoning numbers of trans-identified people did want a GRC, they should get one automatically, without professional oversight — or so a nationwide transactivist campaign, backed by every major political party, proclaimed. But even if they chose not to get a GRC at all, they still had the right to walk into whichever single-sex space or service they pleased, on the basis of however they felt that day. As a result of this piece of strategic brilliance, widely enacted on the advice of Stonewall by thousands of supine institutions, self-ID is now dead as a political project. What’s more, the complete irrelevance of GRCs in relation to single-sex protections has been legally established with maximum publicity.

Like a military historian reviewing the mistakes of wartime generals, we might ask: where did it all go wrong? One big problem was the abilities of the generals themselves. Under Ruth Hunt, Stonewall unilaterally embraced self-ID while still purporting to advocate for LGB people, ushering in what became known as its “no debate” era (as in: “Transwomen are women, no debate!”). In 2019, Hunt apparently gave the self-interested game away to the Guardian: “It’s about treating people as they want to be treated, and when it causes no disadvantage to me whatsoever, who am I to challenge it?”. Next at the helm was statistician Nancy Kelley, perhaps best remembered for likening lesbians to “sexual racists” for their failure to feel attraction towards men professing womanhood, although there was a notorious Census-related balls-up too.

Meanwhile over at Mermaids, the nation’s foremost charity for transitioning children, then-boss Susie Green was busy falsely telling already anxious young people that Mermaids’ critics hated them and wanted them to die. On her watch, there was a series of scandals and tactical missteps, including a disastrous legal attempt to get the LGB Alliance’s charity status removed. This was immediately followed by an embarrassing Charity Commission investigation into Mermaids itself. Green is now reduced to co-directing an “online telehealth service” selling “gender affirming care” including puberty blockers; while her former close associate Dr Helen Webberley is on TikTok, making videos about the supposed ongoing “ethnic cleansing” of trans-identified people, using footage of Auschwitz as a backdrop.

Aside from these personnel issues at the top, another big problem for transactivist campaigners was the restricted arsenal of argumentative weapons at their disposal. They couldn’t rely on reason or evidence as these concepts are commonly understood, because no good arguments for transubstantiation by means of lip gloss existed. This left only three options: intellectual misdirection, emotional blackmail, and aggressively shaming opponents into silence.

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The result of the first of these was fancy-sounding obfuscation about spectrums, social constructs, and the supposedly close relation between trans-identified and so-called intersex people. But this was only ever likely to work with the young or dull-witted, while cleverer minds watched and learned from the mistakes. Equally, as time passed, it became increasingly difficult to maintain heartrending fictions about the unique vulnerability of the trans-identified cohort as a whole. Over and over again, men claiming womanhood kept featuring as perpetrators in court reports. So that left only the tactic of terrifying critics into silence. We on the gender-critical and sex-realist side were called harpies, transphobes, bigots, Christian nationalists, National Socialists, and white supremacists; and that was just by Guardian writers.

At first, the ludicrous name-calling hurt quite a lot, particularly when it seemed those around you were in danger of believing the hype. But after endless mechanical repetition, the words start to bounce off. At that point, you have removed all the fuel from your opponents’ rhetorical flamethrowers, and no attempt to shame you in public is ever going to work again.

In other words: thanks to opponents’ heavy-handed tactics, an army of highly motivated and competent women emerged. These women could no longer be cowed or controlled by the fear of having their reputations destroyed. And even worse for their opponents, despite all the bullying, many proud inhabitants of Rainy Fascist Terf Island maintained an irreverent sense of humor, something nobody has ever said about British transactivists with a straight face.

After self-ID started to affect the Highgate Women’s Pond in 2018, an intrepid group known as “Man Friday” wore fake mustaches and beards to swim in the Men’s Pond. When David Lammy called us “dinosaurs” who were “hoarding rights”, activist Kellie-Jay Keen brought dinosaur costumes to protests. The passing of Scotland’s shameful Gender Recognition Reform Bill was met with horror from onlookers in the parliamentary chamber, but campaigner Elaine Miller defiantly highlighted its sponsors’ moral indecency by flashing a fake pubic wig. And while many hilarious placards and posters have been seen at protests over the years, my personal favorites were also Scottish ones: “No laddies in the ladies” and “Yer daw is not yer maw”.

So, while the other side most definitely had all the gender identities, our side had more tangible assets in the shape of brains, guts, and heart. Given the damage done by Sturgeon to the cause of women and girls north of the border, it is fitting that the biggest victory in the gender wars should belong to members of that esteemed company, the women who wouldn’t wheesht. In the former First Minister, we are given a perfect encapsulation of the tongue-clucking, eye-rolling, mostly performative feminist attitude favored by women in the progressive establishment. But thanks to For Women Scotland and their many grassroots allies, we have been given the real thing.

So it was gross, but it was also symptomatic of something bigger, something real. One thing Trump understands is people’s dislikes. He has an expert nose for the simmering resentment, the latent energies of discontent suppressed by polite opinion. And a lot of people really don’t like DEI — which stands for Diversity, Equity and Inclusion and refers to the regime that manages relations among the various identities of ethnicity, sexuality, and gender, and prescribes proper attitudes and behaviors regarding those relations and identities, in organizations, businesses, universities, and schools.

When Trump uses the term, though, he’s usually, implicitly, talking about race, and media outlets and progressive commentators have been quick to characterize popular discontent with DEI as some mix of delusions and aversions grounded in racism. This reflects an important failure of simple political perception. To respectable figures, the idea that one might oppose diversity initiatives is something like a category error. Affirmation of diversity is merely a given, a necessary assumption — not needing to be argued one way or another — of respectable living in modern society. DEI people often say that “whiteness” is systematically normalized and depoliticized, legitimized by being removed from discussion. You might say the same thing about DEI. In its way of moving through bureaucratic channels where authority is effectively irresistible, the diversity regime has both depoliticized and radicalized racial discourse in many areas of American life. That is, it has removed several core racial issues from public contestation while imposing a decidedly Left-wing understanding of those issues on everyone it rules. This is a recipe for populist reaction.

Strange as it may sound now, there was a time when people talked and argued about race and racial preferences in America without saying or even thinking the word “diversity,” much less the initials “DEI”. Before the dull, bureaucratically depoliticized trope of “diversity” took over, that is, America had the openly, virtuously public and political concept of “civil rights”. For the 25 or 30 years after the Civil Rights Act of 1964, people argued about whether racial preferences — “affirmative action”, racial quotas in hiring, racial set-asides in government contracts, and so on — were a legitimate application of the Civil Rights Act of 1964, or if they were a violation of it. The idea that they were a legitimate application of the Act was articulated most famously by the man who signed that Act, Lyndon Johnson. Johnson worried that, given the historical disadvantages black people faced, merely removing the overt legal obstacles before them would not be enough. In a 1965 graduation speech at Howard University, Johnson said, “You do not take a man who for years has been hobbled by chains, liberate him, bring him to the starting line of a race, saying, ‘You are free to compete with all the others.’” According to Johnson, something more than just removing barriers — something “affirmative” — had to be done.

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There was a live debate here. On one hand, the dilemma that President Johnson dwelt on was real. Merely making overt discrimination illegal would not correct the many historic wrongs against black Americans, and it would not remedy their deeply unequal material status. On the other hand, openly discriminating in favor of black people was still discriminating based on race, and it was thus a violation of the 1964 Civil Rights Act, and of the Constitution’s 14th Amendment, in the most literal and obvious readings of those documents.

There were other ways of addressing the issue as well. The black conservative economist Thomas Sowell, for example, wrote several books arguing that racial discrimination was not the main problem black Americans faced, and so civil rights remedies such as affirmative action were misplaced (as well as illegal and unconstitutional). He argued that other American ethnic groups — most notably Jews, Chinese-Americans, and Japanese-Americans — had also faced serious discrimination in America and yet outperformed the white Christian majority by substantial margins in education and income. Sowell’s critics argued back that what the black descendants of the victims of chattel slavery had experienced was far crueler and more hobbling than what other ethnic groups had experienced. And so on, back and forth.

My point is: it was a debate. The debate was largely contested in the terms of public law and public policy. Were racial preferences a legal and legitimate extension of civil rights legislation? Were they needed? Were they effective? Were they fair?

But as this debate went on, something else was happening that, by the Nineties, would make that debate largely obsolete and irrelevant. An increasing number of powerful institutions were aggressively employing racial preferences, but these racial preferences weren’t really an extension of civil rights law, as Lyndon Johnson imagined they might be. In the view of the U.S. Supreme Court, they were a strange exception to civil rights law, operating directly in tension with it. This exception arose from the 1978 case California vs. Bakke, in which a white medical school applicant named Allan Bakke sued the University of California for rejecting him while admitting several black applicants with inferior academic records. In its ruling, the U.S. Supreme Court sided with Bakke, finding that the sort of racial preferences that resulted in his rejection are illegal because they amounted to a race-specific “qualification” or quota, and these violate both the text of the Civil Rights Act and the 14th Amendment of the Constitution.

But — and this is one of the most consequential buts in American history — the court said universities could consider race in admissions, to some small degree, if it served some “compelling interest”. The admissions department at Harvard, for example, considered race as one part of its broader quest to compose diverse incoming classes — on the belief that human diversity of background and geography and, yes, race might contribute to a richer educational experience for its students. (A core element of this approach to diversity at Harvard, at the time, was the quaint practice of striving to admit at least one student from every U.S. state.) As New York Times writer Nicholas Confessore wrote in an explosive 2024 article on DEI programs at the University of Michigan, “the Supreme Court outlawed racial quotas in college admissions, while allowing a narrower form of racial preferences.”

But bureaucrats at American colleges and universities resisted this narrowness. They did this not by seeking other justifications besides diversity for enacting racial preferences, but by convincing themselves that diversity was more fundamentally important for education than anyone had ever imagined it to be, before 1978. The result was a thematic reordering of campus priorities, so that diversity — a minor consideration before Bakke — became a sort of institutional fetish, rising to number one on official lists of campus “values”. These days, someone from an alien civilization visiting the administrative offices of an American university might assume it’s a religious institution, and the object of its solemn devotions is this word, this holy concept, Diversity, whose earthly incarnation is the small collection of different-colored young people pictured on the pamphlet they handed out.

In other words, not only did administrators keep the deeply unpopular and legally suspect practice of racial preferences alive at American colleges and universities, they redefined the very purpose of their institutions so that this pedagogical novelty — diversity? the most important thing? since when? — was now at its very center. Not coincidentally, this brash and peremptory centering of diversity in their institutional missions also resulted in a pleasing centering of them, the administrators of diversity, in the power structures and institutional goings-on of their schools.

The diversity story is a thus lesson in the self-empowering ingenuity of bureaucrats. Remember, the Bakke case had ended in a ruling against the racial preference at issue. But one Supreme Court justice felt bad about telling a medical school its well-intentioned racial quotas were illegal, and then he remembered Harvard liking those different kinds of diversity, and so he threw in some stuff about diversity — and those college functionaries ran with it. The rest is history.

Racial politics on campus was now a bureaucratic project. The operational appeal of the diversity framework to campus bureaucrats should be obvious. Within this framework, students were understood as belonging to specific types. When students of different types came into conflict, that conflict would be understood not as a conflict of individual students, something regular that’s going to happen on any campus, but as a conflict of types, two categories within the administrative rubric of diversity. For those administrators such a conflict was always a sort of wonderful crisis. It was right in their wheelhouse. They were administrators, and here was something they could administrate the hell out of. And every such administrative occasion was a chance for the bureaucrats of diversity to enlarge their claims of importance over campus life in general. In other words, they had an incentive to make a big deal about it.

The legal origins of diversity power were different in employment settings, but the institutional dynamics have been somewhat similar, especially in large corporations. The origin of much diversity oversight in workplaces was the “hostile work environment” framework laid out by the Equal Employment Opportunity Commission (EEOC) in the wake of the 1964 Civil Rights Act. By making the amorphous network of human interactions that constitute a “work environment” a possible site and source of legal trouble, the EEOC gave employers a strong incentive to set up an apparatus of monitoring and training that would control the risk of such trouble.

I’m more favorably disposed toward the hostile work environment framework than I am to the campus diversity framework, for a couple of reasons. First, it emerged out of good-faith efforts to enforce duly passed legislation, specifically Title VII of the 1964 Civil Rights Act — as opposed to the uncanny power-grab by campus administrators that founded the diversity empire in higher education. And, second, the Civil Rights Act did in fact outlaw employment and workplace discrimination, and an environment of persistent, low-level racial torment is both all too easy to imagine as a fact of life in a workplace and clearly valid as an enforcement target under that Act.

It’s probably the case that the urgent diversity propaganda on college campuses informed the self-understanding of people in other institutions, such as Human Resources professionals charged with managing corporate work environments. The term itself carries such pleasant connotations — human variety and everyone being nice about this variety, not just tolerating it but celebrating it. The happy nomenclature spread easily, everywhere, into marketing and NGO-speak and all levels of education. And, for Human Resources departments, the diversity framework was a natural, deeply administrative way to visualize the human field of the workplace. The administrator of people begins her task in search of ordering categories, and the diversity framework hands her an array of categories, ready-made.

But in both university and workplace settings, the administration of diversity took on a disciplinary edge that people seriously resented. Where the civil rights framework drew on older liberal models of rights as the possession of individuals against government and other institutions, the diversity framework empowered institutions over individuals, rendered individuals prone to the disciplinary whims of those institutions. This is obvious and notorious in the case of universities, whose diversity bureaucracies often double as star chambers, secretive judicial bodies that punish students and professors for violating both imperiously written and mysteriously unwritten codes of speech and conduct.

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It’s a little different in the workplace. There you can still imagine an individual seeking to vindicate a legal claim against real racial harassment by his boss or his colleagues, and this does happen from time to time, such as in the recent case of a Tesla factory in California. But, in the hands of corporations, with their governing interests in risk-management, the threat of such complaints about hostile work environments tends to result in an extension of employers’ surveillance over their employees, rather than an expansion of employees’ rights against unlawful discrimination. Indeed, the sorts of corporate diversity initiatives inspired by the hostile work environment framework are likely to be aimed not at enabling but at preempting civil rights claims by employees: “We can’t be guilty of maintaining a hostile work environment! We do diversity training! We brought in Robin DiAngelo last year! We paid her thirty grand!”

And then there’s that diversity training. The most notorious versions of diversity training take the form of searing interrogations from which the white employee can’t escape without admitting unearned racial privilege and indelible racial guilt. But corporate diversity training doesn’t always come from fanatics like DiAngelo, author of the now-notorious tract White Fragility. It doesn’t always resemble a suffer session from China’s Cultural Revolution, with workers set upon to confess their despicable privilege, and told their dubious attitudes toward the DiAngelo paradigm only prove their guilt, and humiliated for crying “white tears” in the face of the interrogation and accusation. But even the more innocuous forms of diversity training can feel like another of those spiritual burdens that today’s employers force their employees to bear, like “team-building” retreats that are meant to convince workers to invest not just their efforts but their inner selves in the make-believe community of their job.

That is, the average person experiences institutional DEI efforts mainly as the expression of institutional power. It’s not something done in public by a righteous movement for racial justice. It’s just something done to her, in private, on her boss’s orders, on the assumption that there’s something wrong with her soul that needs to be fixed by a consultant. And it can only embitter the resentful employee even further to learn that there’s no practical point to the soul-sucking hassle and/or humiliation of her diversity training sessions, that they don’t even work. But it’s now widely known that this is the case, that most diversity training programs don’t reduce internal bias or improve external behavior. Sometimes these programs increase bias. Sometimes they make people more racist in their behavior. About this there’s now a sort of reckoning, so to speak, everyone realizing that businesses and organizations are paying millions of dollars to diversity consultants who don’t appear to know what they’re doing.

One other area in which people encounter diversity and DEI as blandly depoliticized in their form — borne to them by functionaries, a fait accompli of institutional practice — and yet politically very radical in their content is their children’s schools. This is not surprising. America’s education establishment — public schools, teachers’ unions, schools of education — has been on a Deweyan quest for over a century. That is, it is constantly trying to extend its portfolio from training students in academic subjects to using schools’ daily possession of those students as a way to influence the nation’s handling of its larger social problems. The stubborn problem of race is both useful as an object in this broader quest and an ongoing dilemma that schools themselves have to deal with. Racial differences in academic performance present themselves to educators every day. They’re a festering legitimation problem for the entire education establishment, but also a rich opportunity for the many activists within that establishment. No one knows quite how to close those differences, and so the default approach for educators is a righteous busyness of themes and symbols, an official belief in racial oppression as the main problem, and an official embrace of anti-racism as the remedy.

Neither is it surprising that schools have been the focus of the most prominent and successful agitating against DEI. People don’t like their kids being politically programmed during their school days, and they really don’t like their kids being programmed in ideas that they themselves find obscure and obnoxious. And education is one area where the ideas that animate DEI regimes can’t be buried in administrative procedure, presented to people merely as obligatory workplace operations or unargued dictates of unseen university bureaucrats. In education, the animating ideas have to be stated outright sometimes, often in formulas simplified for children, which reveal just how radical they are. When your 10-year-old’s teacher says she joins Black Lives Matter activists in “disrupting the Western-prescribed nuclear family”, or tells you that she learned how to deconstruct her white privilege in school today, you might suspect that some aggressive politics is happening somewhere, that public issues are being decided via private channels. You might not like that the people involved have also involved your kids.

It’s easy and affirming for liberals and Leftists to ascribe this parental suspicion to a “desire…to protect whiteness”, in the words of one Slate writer. This familiar smugness betrays a failure to even think about what DEI is, in both its basic pragmatic details and its political nature and origins. In its pragmatic details DEI is a collection of disciplinary practices that institutions deploy on people in order to manage risk and enhance their own power. In America, it’s often lamented that courts are often used as a dubious end-run around democratic decision-making. The DEI regime does this one better. It originated in large part as an end-run around both democratic decision-making and courts. It is the creation of functionaries working under cover of bureaucratic darkness, who directly harry people and drizzle agitprop into their children’s education. It has the weak and hollow legitimacy you would expect in a bureaucratic creation that does those things. I’m sure some people don’t like it because they’re racists or afraid of change or whatever. But they have deeper reasons than that not to like it. They are citizens, and it insults their status and their prerogatives as citizens.

For my part, I find many of the background ideas that inform DEI — the academic arguments often described as Critical Race Theory — to be some mix of partially plausible and occasionally stimulating and eye-opening and, also, tendentious and wilfully pessimistic, readily challenged in both analytical and practical terms. They are far from a settled science of social relations. They have not earned the standing to be taught as unquestionable fact in schools, or to form the theoretical basis for peremptory regimes of behavior management and attitude adjustment and secret punishment in workplaces and universities. They are part of the intellectual mix, one interesting side of the vital debate that once happened about race and racism in America, before that debate was rendered moot by enterprising bureaucrats who don’t do debate, who just give orders.

The past year has been particularly rough for the once-robust but now-obese and physically frail Thomas, beset by investigations into financial improprieties and heightened scrutiny over gifts and favours from wealthy benefactors. The oldest member of the Court at 74, he doesn’t seem to be long for the bench. And when he finally departs, not only will it mark the exit of the Court’s most polarising — and, perhaps surprisingly, most relatable and down-to-earth — figure, but could also alter the trajectory of American jurisprudence.

Thomas’s journey to the Supreme Court bench was, as lawyers might say, sui generis. Raised in poverty in Pinpoint, Georgia, his early life was framed by hardship and resilience. He was reared by his grandfather, Myers Anderson, a self-made man who built his own home and instilled in Thomas a rigorous work ethic and staunch moral code that the young man has, at times, struggled to follow.

After entering a seminary with the intention of becoming a priest, Thomas’s path dramatically shifted: he swiftly developed a pornography addiction so profound he wallpapered his apartment with nude pin-ups. To accommodate his less religious tendencies, he moved to the College of the Holy Cross, a liberal arts school in Massachusetts, where he embraced and then critically questioned the radical ideologies prevalent during the Seventies. His shift to conservative thought crystallised during his time at Yale Law School, where he began to question the efficacy and morality of affirmative action and other liberal policies he felt patronised rather than empowered African Americans.

Though one of America’s few black conservative intellectuals, Thomas’s ascent to the Supreme Court was anything but smooth. Nominated by President George H.W. Bush in 1991, his confirmation hearings — conducted in a rushed fashion by then-Senate Judiciary Committee Chairman Joe Biden — were nearly derailed by accusations of sexual harassment by Anita Hill, a former colleague at the Department of Education and the Equal Employment Opportunity Commission. They soon became a national spectacle that polarised public opinion and highlighted deep societal rifts around race, gender and power.

Largely because Biden closed the hearings before more witnesses could come forward, Thomas was confirmed by an exceedingly close Senate vote, 52-48. However, the scars of the process left a lasting imprint on his tenure and public persona: rarely speaking during oral arguments in the decades thereafter, Thomas adopted a jurisprudential approach that favoured colourful written opinions, where his advocacy for an unorthodox conservative interpretation of the Constitution could be fully articulated without immediate rebuttal.

Crudely speaking, Thomas could be considered an “extreme originalist”, often seeing cases through a lens that emphasises the Declaration of Independence and its revolutionary principles (instead of the later Constitution, which actually established the government). Along the way, he has freely taken peculiar positions — such as his opinion in Virginia v. Black (2003) that cross-burning constitutes racially intimidating conduct rather than mere speech, and should be unequivocally banned — aligning him unexpectedly with more liberal views on this issue.

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But these were rare occasions. In United States v. Lopez (1995), by contrast, where the Court evaluated the constitutionality of the federal Gun-Free School Zones Act — which banned the possession of firearms in school zones — Thomas concurred with the majority that this act exceeded Congress’s power under the Commerce Clause. He argued that regulating guns in schools was a fundamentally local matter that had insufficient impact on interstate commerce to justify federal oversight. However, in doing so, he potentially provided the grounds to invalidate the Civil Rights Act of 1964 and a host of other landmark federal laws enacted under the Commerce Clause that helped end state-based segregation in the South.

A decade later, in another significant case, Kelo v. City of New London (2005), Thomas dissented from the Court’s decision, in which the combined liberal-conservative majority ruled that the city could legally seize private property without the owner’s consent — in this case, someone’s actual house — and sell it to private developers as part of an economic development plan. Thomas criticised this decision, arguing that it strayed far from the founders’ intent that “eminent domain” be used only for direct public uses, such as the construction of roads or bridges, not to coercively transfer property from one private owner to another under the guise of economic development. His dissent underscored his deep scepticism of expansive government powers. “Something has gone seriously awry with this Court’s interpretation of the Constitution,” he wrote.

As well as presenting himself as an advocate of a more restrained interpretation of federal authority, Thomas is the most relatable justice in another critical respect: he was born poor and always sought material comfort. Over the past year, ProPublica has highlighted multiple embarrassing instances where Thomas received gifts that included international vacations on private jets and luxury yacht trips, financed by billionaire donors who, depending on one’s interpretation, were either sympathetic friends or cynically buying access.

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Early in the 2000s, for example, Thomas found himself hundreds of thousands of dollars in debt, his financial strain coming to a head after he borrowed $267,000 from a friend to buy a high-end RV. Eventually, mounting political pressure sparked discussions about his potential resignation from the Supreme Court; in response, Justice Thomas advocated, albeit unsuccessfully, for the lifting of restrictions on paid speeches by justices. This change was necessary, he argued, to alleviate the financial challenges faced by public servants like him, who he felt were paid significantly less than they could earn in the private sector for comparable roles. In reality, his perspective has indeed been valuable, but at what cost?

These late-life controversies all but ensure a miserable end for Thomas. As health challenges and ethical controversies cloud the twilight of his four-decade career, Thomas likely won’t leave with his held high, regardless of whether he retires due to infirmity or is forced to step aside. Nevertheless, his story — tragic though it might be — highlights the importance of genuine diversity in government, in thought and approach as well as background. For while his legacy will be a subject of intense debate and reflection, he has already ensured his place in the annals of American legal history as a common-man justice so silent on the bench that he almost wasn’t there — at least in the conventional sense, but profoundly present in every other. He will be replaced by another elite in disposition and background. And we can rest assured that we will never see his like again.

There is one big exception to this trend toward liberalisation in the Americas: the United States. Last summer, American women lost their constitutional right to end a pregnancy overnight. While abortion remains broadly legal in America’s more progressive, mostly coastal states, it is outlawed in 14 states, and restricted, at risk, or unprotected across most of the south and middle of the country. Today, three states will see quasi-referendums on the issue, which has come to define local elections across the country. As a result, American feminists are looking south of the border and asking: what can we learn from Latin America?

Years of organising precipitated the green wave. In 2006, Colombia loosened abortion restrictions; in 2007, Mexico City legalised the procedure. Those hard-fought successes gave the feminist movement the confidence to broaden its approach. Instead of focusing primarily on passing laws in legislatures, they took up a kind of kitchen-sink strategy: do it all, try everything, see what works. While some focused on using the justice system to effect change, others prioritised bringing young people into activism. Women spoke out about their own experiences in a push to destigmatise abortion — and feminist groups put pressure on politicians to highlight women’s rights. This combination accelerated the green wave.

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In the United States, advocacy has long been focused on the courts, and for good reason: the legalisation of abortion came via Supreme Court decisions, and efforts to curtail access were most successful when implemented legislatively and upheld by the legal system. But groups working in the community here and building cross-movement relationships are routinely under-funded and under-resourced.

Another crucial tactic in Latin America has been to emphasise that outlawing abortion doesn’t end it; it just makes it less safe. Many nations where the procedure is illegal have high rates; indeed, while it remains restricted in much of Latin America, the region has a significantly higher rate than Europe, where abortion has long been legal in most nations. Those places where abortion is restricted also tend to see far higher unintended pregnancy rates. In these countries, women often turn to abortion-inducing pills which they source from feminist groups, or from pharmacies or hospitals where they’re sold under the counter or prescribed for other purposes. If they can’t access the pills, which are overwhelmingly safe, some women resort to far riskier methods — drinking poisons, inserting sticks, or going to untrained freelance providers who make promises they may not keep. There are also much higher rates of maternal death and injury due to unsafe procedures.

This is why feminists routinely state just how common abortion is — even where it is illegal. The difference between legalising abortion and banning it is a choice between making procedures that will inevitably take place safe or potentially deadly.

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Latin American feminist groups have also emphasised the importance of abortion access, most recently in Mexico. There, the Supreme Court decision is a step towards legal abortion nationwide, but states throughout the country will still need to lift their own bans on the procedure for Mexican women to have full access. American feminists are taking a similar tack: with abortion now criminalised in many states, there has been a renewed effort to invest in funds which will pay for women to get from abortion-hostile states to ones where the procedure is legal.

They are also fighting each state ban, as well as trying to get the issue on ballots. In every single case where abortion has been voted upon, pro-choice has won. In the conservative states of Kansas and Kentucky, voters rejected proposed bans; in California, Michigan, and Vermont, voters elected to enshrine abortion rights into their state constitutions. As a result, opponents have been working overtime to keep abortion off the ballot — voters, some Republicans argue, simply shouldn’t have a say. Pro-choice activists disagree.

Meanwhile, healthcare workers continue to provide safe abortions. A new report suggests that rates have slightly increased nationally since the Supreme Court decided to overturn Roe v. Wade. They have also increased in liberal states, as thousands of women have travelled there to terminate pregnancies. American women are also going to Mexico — particularly those living in states along the southern border where abortion has been outlawed. At first glance, this seems like a throwback to the pre-Roe era, when scared women would cross the border for procedures that were often dangerous. Now, though, women who go to Mexico to end a pregnancy are most likely to procure on abortion pills. With the latest ruling on abortion from Mexico’s Supreme Court, more Americans may head south seeking safe, legal terminations. But first, states across Mexico will need to update their local laws to fully legalise the procedure.

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The Latin American Green Wave is one model for how feminists worldwide might move forward. But the global movement has also been influenced by developments in the Americas, and has been paying especially close attention to the US. “One of the lessons from Dobbs is that rights are not guaranteed; there can always be setbacks,” two activists told me. This is why, they say, any fight for abortion rights has to recognise “the importance of not having a single source of recognition of the right to abortion”.

The Mexico Supreme Court did not wave a magic wand and make abortion legal and accessible for all women  any more than the US Supreme Court made abortion universally inaccessible. When it comes to the question of whether a woman can get an abortion when she needs one, legal changes are hugely significant — but they are not the sole determinants of whether a woman, or girl, will have to continue her pregnancy against her will. And that, perhaps, is the most powerful lesson that American feminists have learned from women in Latin America. If abortion is truly a woman’s right to choose for herself, then the ability to have an abortion must be in women’s hands, whether or not her government grants permission.

It had been an unusual trial. In protest cases, it is not uncommon to find defendants who choose to go without an advocate, since those defending themselves are, quite rightly, given a little more latitude than lawyers. Usually, protesters’ evidence about their beliefs is kept short, for the sake of time and simplicity, or even proscribed altogether, when the limits of any “reasonable excuse” defence can easily be determined in advance. But the defendants here, with the agreement of all parties, were allowed to explain their motivations at considerable length. The jury heard nearly four hours of evidence about the science of climate change, its consequences, and government policy.

All of which turned out to be, strictly speaking, irrelevant. Because once the evidence had been heard, the court decided that, on all the facts of the case, the “reasonable excuse” defence did not allow for a protest at the top of this bridge.

The right to protest is an important one, protected first by our Common Law and then by the European Convention. But there must be limits, even where no violence is used and no damage caused. Those limits in the British courts, though, are surprisingly hard to discern.

At least part of the reason for the judge’s ruling was that the public has no general right to access the Dartford Bridge, much less to climb it. Indeed, it is a criminal offence even to walk onto it. For protests on other roads, a jury might, depending on circumstances such as how long the disruption lasts, be told that the question of reasonableness is up to them.

Nevertheless, the unrepresented defendant was not prevented from asking the jury to find that their actions were reasonable — and so I was not prevented from arguing that they were not.

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Anyone facing conviction and imprisonment ought, surely, to be permitted to give reasons for their actions, even if those reasons do not amount to a legal justification. If you are caught with a knife, no court would seek to prevent you from telling the jury that you forgot it was in your pocket — despite the fact that the appeal courts have decided that forgetting is no defence. But should a Crown Court be expected to put aside several hours for evidence about climate change? There are 60,000 cases in the queue after all.

But attempts to shut down environmental discourse in court have not ended well. David Nixon, who in his trial ignored a judge’s direction not to refer to climate change, and then refused to apologise, was recently sentenced to eight weeks’ imprisonment. Unapologetic contempt of court must be punished, sometimes harshly, but the general view at the Bar is that the justice system was not the winner there. The case made the courts look harsher than they are.

Judges are in a difficult position, because the law is a mess. The main problem is how to interpret a “reasonable excuse” defence when a defendant’s rights to Freedom of Expression and Freedom of Assembly are engaged. The uncertainty became a problem, in 2018, in an appeal from a Magistrates Court trial about a protest at an arms fair. The District Judge had decided that the obstruction of a highway was reasonable, and therefore not criminal, because — in essence — the protest was peaceful, orderly, worthy, and short. Nothing hugely problematic about that.

But the Crown felt that the judge’s reasoning had gone awry, so appealed the acquittal. And in the course of agreeing with that complaint, the High Court introduced an idea that has complicated things ever since. When judges have to determine whether a law is compatible with the European Convention, they have to perform a “proportionality assessment”, and the High Court said that, in protest cases, a proportionality assessment could simply replace the question of reasonableness. The trouble is, proportionality assessments are very, very complex.

The case then went to the Supreme Court, which condoned the use of proportionality assessments. They also suggested — somewhat offhand and in passing, it seems to me — that this task could be carried out not only by magistrates but also by a jury. Even the most die-hard of activist lawyers see that move as, well, innovative. And many of the rest find it completely bananas. Juries cannot sensibly be asked to perform legal analyses that High Court judges might take days to decide. The result is that it has become very difficult for those attending a protest to gauge their level of exposure to criminal liability.

There are some, of course, who appear to think that there should be no limits on non-violent, yet disruptive, climate protests. A month ago, a few days before the Dartford bridge trial began, Jolyon Maugham KC and others signed and publicised a declaration entitled “LAWYERS ARE RESPONSIBLE”, in which they asserted, among other things, that they would “withhold their services in respect of action against climate protesters exercising their democratic right of peaceful protest”.

There are a number of problems with this approach. First of all, most of the signatories are solicitors, who unless they apply to join the Crown Prosecution Service are in no danger of being asked to prosecute anything. And none of the handful of barristers who signed, I am fairly sure, is on the CPS advocates list, so they too are quite safe. Moreover, although the declaration does not actually go so far as to say in terms that these cases ought not to be prosecuted by anyone, that is the clear implication of a declaration of “conscience” — that is, of what they believe to be the morally correct attitude.

Maugham, of course, punched it all up in the Guardian. “Sometimes the law is wrong”, he noted sagely. Well, yes. But by what mechanism should the enforcement of the law be changed? By Parliament, and the law being applied the same to everybody? Or by the whims of barristers’ consciences?

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A solid causative link between “climate justice”, however you choose to define it, and stopping your fellow citizens from moving about has not yet fully revealed itself to me, even acknowledging the “press attention” argument. But I would have happily and vigorously defended the Dartford protesters, just as I defend people accused of much more unpleasant crimes.

The so-called “Cab Rank” rule, according to which barristers cannot turn down cases, should discourage the public from identifying lawyers with their clients. If you know that a barrister could have refused to act for an unpopular client, you are more likely to believe that he or she approves of their actions. But it seems that the administration of justice could benefit from raising awareness of this traditional, non-partisan approach to barristers’ work: Insulate Britain, for example, has threatened to prosecute me “in the years to come”.

This is an alarming development in activists’ attitude to the Rule of Law. And since climate protest is on the rise, with enormous Extinction Rebellion protests planned for this weekend, the administration of justice — the fair application of the current law to all citizens — must not be undermined.

Trowland and Decker have just been handed sentences much stiffer than climate protesters have been used to receiving. While this may well have some deterrent effect, the actions of Just Stop Oil and similar groups are not going to abate any time soon. Both protesters and the public need to know how the law will balance their respective rights, and in what circumstances. Climate change is an issue of great public concern, but the criminal courts are not the forum for litigating government policy from first principles.

Reports of the demise of Israeli democracy are, however, greatly exaggerated. The proposed changes relate to the balance of power between the judiciary, the legislative and the executive branches of government — a matter of usually staid debate among Israeli academics and wonks for nearly three decades. Today’s incendiary rhetoric on the issue says more about the vicious and polarised state of Israeli politics than the controversiality of the Supreme Court reforms.

The protest movement should be seen in the context of ongoing political opposition to Netanyahu. The leading activists resisting the reforms today are the same groups who participated in weekly demonstrations calling on him to resign in 2020 and 2021. Back then, they were motivated by the prime minister’s corruption charges, not by the scepter of drastic changes to the judiciary, but the new protests have piggy-backed onto the old ones.

What’s at stake here isn’t the death of the nation’s democracy, but straightforward party politics. And two incidents that took place last week in the Knesset plenum, Israel’s legislature, illustrate just how ugly everyday Israeli politics has become. During a late night of debating and voting last week, Almog Cohen, a politician from the extremist party Otzma Yehudit, started a live video on Facebook from the plenum, in which he randomly insulted opposition members. “You have to speak to him in his language, like a sheep,” he said of one, making clicking noises at him as if summoning an animal. “She has the voice of a woman who mops floors,” he said about another. He then shouted at a politician who is a medical doctor: “I wouldn’t even let you care for my dog.”

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Cohen has since expressed regret. But his was an extreme case in a flood of insulting remarks on all sides. One opposition politician compared the current government to Nazis, and another said that Jews of Moroccan origin, who stereotypically support Netanyahu, would rather go back to living under a king than keep Israel a democracy.

That same night, Boaz Toporovsky, prominent in the opposition party Yesh Atid, returned to the Knesset after missing a month of work after being injured in a car crash. He was there to join his colleagues in voting against part of the judicial reform legislative package. Justice Minister Yariv Levin, the reform’s chief proponent, interrupted his presentation of the Bill from the podium to welcome back Toporovsky, saying: “We missed you.” Netanyahu rose from his seat in the plenum to greet Toporosky and shake his hand. Opposition and governing coalition lawmakers followed suit, standing in a cluster around their friend, who was in a neck brace. The moment of collegiality was caught on camera and published widely.

Then came the backlash: journalist Ben Caspit, a well-known Netanyahu critic, called Toporovsky a “poodle”, who should be “wearing the brace on his head” and not his neck. Many of the protests’ organisers said similar things on social media.

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Soon after, opposition politicians started apologising for the mortal sin of being seen smiling next to the prime minister. “We weren’t smiling at Netanyahu; we were happy Boaz returned to us,” Yesh Atid legislator Vladimir Beliak tweeted. “The photo that was taken, under the circumstances, looks bad and I apologise for it.”

An apology for smiling in the general vicinity of the prime minister: here is a neat summary of the demonisation that has been normalised in Israeli politics in the last four years, during which time Israel held five elections rife with mudslinging.

We’ve reached a point where political distrust is so great, it’s getting in the way of compromise being reached. The opposition leader Yair Lapid will not negotiate until the governing coalition agrees to halt all legislation on the judicial reform, which is still in its early stages, while talks take place, saying he won’t negotiate “with a gun to [his] head”. His request was denied, out of concern that the opposition will try to drag out negotiations forever. The two factions are refusing to hash it out in a room together, despite a major effort by President Isaac Herzog to bridge the gap.

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Yet, when one looks beyond the ferocious partisanship, the difference in opinion is far less gaping than that between fascism and democracy. The debate over judicial activism began when the Knesset passed a Basic Law enshrining basic human rights in 1992. Israel does not have a constitution, but such laws were meant to be the building blocks of one. Still, they were not treated like a constitution until 1995, when the Israeli High Court of Justice’s then-deputy president Aharon Barak interpreted the 1992 Basic Law as having constitutional weight. The judiciary has used it as grounds to strike down new laws it deems unreasonable ever since.

Notably, Israel’s current political crisis was sparked in 2018, in part, by the court overturning a law: specifically, one that exempted Orthodox men who studied Torah full-time from mandatory military service. The governing coalition, torn over how to proceed, was dissolved soon after.

Though the Supreme Court originally based its authority to strike down laws on treating Basic Laws like a constitution, it decided in 2021 that it could also strike down changes to Basic Laws. In other words, the court would decide whether the democratically elected members of Israel’s legislature could amend the constitution.

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Whether or not the court should have the authority it demanded in the Barak years is the central question of the current judicial reform. Supreme Court justices were mostly self-selecting in the years after Barak, so they almost exclusively chose new members of the court who agreed with them. Though a law passed in 2009 reducing the weight of judges’ votes in the committee that appoints their colleagues brought more political diversity to the bench, Barak’s activism remains dominant.

Most of the debate in the Knesset today is about the nitty-gritty of the reform and the rhetoric surrounding it — not about the broader concept of needing, once and for all, to democratically decide how judicial review should work in Israel. Few members of the opposition view the court as untouchable. In fact, two of the opposition parties supported or even proposed their own judicial reforms that are almost identical to what is currently on the table. One of them is led by Gideon Sa’ar, who, in his former capacity as interior minister in 2014, had his flagship plan to curb illegal immigration gutted by the court twice, a turn of events that helped to popularise judicial reform on the Israeli Right.

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The vast majority of parties in the Knesset say the court’s power to strike down laws should be more limited, but not wholly eliminated. They also broadly agree that the Knesset should be able to re-pass laws that the court struck down, but are arguing over timing, context, permanence, and how big a special majority should do it. The current Bill suggests that the support of 61 out of 120 representatives should be required, meaning that any governing coalition could re-pass a law. The opposition is arguing for a larger majority, so that invoking the “override clause” would require working across the aisle.

The reform also involves adding more political figures to Israel’s Judicial Selection Committee, so as to give politicians an advantage over jurists. The Bill’s proponents compare it to the United States, where Supreme Court justices are chosen by Democrats or Republicans, but that fact does not put the country’s democratic status in doubt; its opponents point out that the US has a constitution and argue that Israel’s lack of one could make judges beholden to politicians.

These are not debates about democracy or dictatorship. The discussion is, in fact, about the proper balance between different elements of a democracy. If politicians can work together to strengthen Israeli democracy, as both sides say they want to do, they could reach a compromise. But to do so, they’ll have to stop demonising each other.

The factory workers constructed and inscribed the black granite for the Vietnam Memorial in Washington. They created a national monument at Arlington for the Pentagon victims of the September 11 attacks, and they did the same for the heart-stopping 9/11 monument to New York City. They do it too for individual men and women who have been killed in action. When I was there, the Iraq war was raging and they were busy.

Two things struck me about Granite Industries and its place in US life. The first was how remote America’s beating heart can be. Vermont is mainly forest. In winter, it glistens in gorgeous silence as the snows come and go. This company plays a central part in American life and yet exists in an unexplored, unpopulated corner of the nation.

The second thing was how corners of the nation can be not just unexplored but genuinely separate from the rest. Yes, America is a collection of states, and yes, the constitution does not refer to a single nation. But the lived experience of these facts is still somewhat alien to those of us who come from centralised nations, and frankly alien to some Americans, particularly on the Left, who have convinced themselves in recent decades that the Unum is more important than the pluribus.

It’s a fascinating fact that the very same people who value diversity seem not to be keen on it in an area of American life where it has traditionally existed: the relationship between the states and the central federal government. There is evidence aplenty that this diversity is growing to an extent that is unavoidable, occasionally dangerous, but in some ways positive.

To state the obvious first: American states are hugely different even in areas where the geography, the weather, the feel to a visiting Martian, might be similar. Vermont and New Hampshire are good examples. When I drove to see the headstones that day, we crossed from New Hampshire. There’s a sign, “Welcome to Vermont” — but there doesn’t have to be. The last thing you see on the New Hampshire side of the interstate is a Walmart and dozens of other large stores and car parks and accompanying tat.

Then just trees. This is because New Hampshire has no sales tax. So no big stores see the point of basing themselves on the Vermont side of the border where you have to pay a hefty 6% on anything you buy. In theory Vermonters have to declare stuff they bring home but, well, that’s in theory.

There is otherwise little difference between the states — both mainly trees perched on granite. But New Hampshire is a proto-libertarian paradise whose state motto is “Live Free or Die” (there used to be a Free State Project that tried to get libertarians to live there) and Vermont is one of the most taxed and regulated states in the Union whose most famous politician is a self-described socialist, Bernie Sanders.

Good luck to them both. That’s the kind of difference that all America can cope with, even celebrate. What happens now though if the differences become even wider and extend into areas of life that touch everyone?

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One of the greatest political victories of recent times in America was that of the Federalist Society founded at Yale Law School in 1982. Its aim was “checking federal power, protecting individual liberty and interpreting the Constitution according to its original meaning” — in other words, upholding the legal concept of “originalism”. It set about its business of changing the judiciary and advancing its own members with gusto and guile and, via the Supreme Court justice picks of Donald Trump, has won its battle, indeed for a generation, won its war.

But coverage of the victory has concentrated on the wrong aspects of that core mission statement. Yes, originalism and individual liberty have consequences for law, but what of the first part, the checking of federal power?

This is what the court has begun to do and this is what might change America: de-nationalise it to an extent that goes far beyond the odd tax difference. The court may pull it apart or allow it to come apart gradually, but either way points to a new dispensation with some basic rights that all Americans can enjoy, but not nearly so many of them.

It’s worth stressing that the nationalisation of so much of American life was a bipartisan affair even if the Republicans rhetorically railed against it. The prominence of business regulatory issues on the GOP’s agenda meant that in some areas they were the keenest of federal regulators. Large companies tend to prefer comprehensive standards to a hodgepodge of local rules. But now of course the party has largely said goodbye to big business and howdy to the mom-and-pop world of low tax and local regulation. This change allows state control to be a genuine aim.

Individual states will be where the action is in this new world. The end of Roe v. Wade made no difference to the rights of women to have abortions in those states that want those rights protected. Indeed, in Kansas it may well have reinvigorated a local sense of the importance that abortion should remain legal. But what the court undoubtedly did is check federal power.

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The idea of national progress — an idea that extends back to FDR and the New Deal — may well be coming to an end. American history is rightly seen as a series of broad periods of consensus with one party or tendency in overall power. The most recent is the post-war welfare state, which not only improved the lives of Americans in material ways but also gave them the right to a decent life. This helped to forge a sense of national destiny, as such rights must be for everyone or else they don’t count as rights. That is what is threatened now. How odd if Trump — flawed in so many ways — goes down in history as the bringer of such profound change.

Of course, there are dangers. “States’ rights” used to mean rights for racists: a rallying cry for the slave-owning South. Might it again? Might states that don’t care much for national democracy go their own way? In Arizona, the Republican candidates for Governor and Secretary of State are both refusing to commit to accepting potential defeat in the midterm elections next month. They seem to be suggesting that Arizona opts out of democracy as it is currently understood. In the event of them winning office, it is difficult to see Arizona accepting anything other than a Republican victory at the next presidential election.

Unilateral secession is not permitted of course under the post-Civil War settlement. But what about plain rogue-ness? The Supreme Court is about to hear a case that would give added power over federal elections to state legislatures and might encourage them to refuse to certify results they didn’t like. It’s freedom for states to be sure, but is it democracy?

None of those threats is easily dismissed. But nor should the potential upside be ignored in a situation where — as a matter of simply empirical fact — Americans have grown apart and done so with some enthusiasm on both sides. Some will see federalism as a rescue mechanism: a multi-speed America where California can press ahead on climate change, Florida can cut tax on business, some states can decriminalise marijuana and some not. In the battle over trans rights some might favour natal females, perhaps in girl’s sport, and some might back the rights of trans women. Choices, choices, choices. Above all this becomes an America where you might want to do something, ban something, enforce something, but in my state we tell you to sling your hook. And the Supreme Court backs me.

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How Turbo-Wokism broke America

By David Samuels

America is huge. You can get a U-Haul truck and move. Millions do. You can also write home from where you have gone and tell folks how much better things are where you live. If you are convincing, they may press for change where they are too.

In 1968, Vermont became the first state in the continental USA to ban advertising billboards. You need a clear view of the trees, they decided. Some thought it was the beginning of communism, and would soon beenforced nationwide. In the end a couple of other tree-filled states joined in, but most of America is still a billboard heaven.

The point is this: you have no right to billboard-free life in America. But you do have a right to live in a state that bans them. If you feel strongly about universal billboard rights you are going to hate this: but you might have to live with it, and in time you’ll settle down.

The midterm elections next month will lead — via Democratic Party losses in the House and possibly the Senate — to more talk of the end of American democracy. Election deniers will be on the march. Yet although America is indeed troubled, there are still options short of conflict. Perhaps that’s the way to see the new federalism: as balm, in troubled times.

Jackson hadn’t been asked to explain how blood is deoxygenated, or to offer an intricate overview of the molecular mechanisms by which protein function is regulated in cells. The question “what is a woman?” is hardly the riddle of the sphinx; a reasonably intelligent six-year-old would be able to give an adequate answer.

Increasingly, the question has become seen as a “gotcha”, but it is a useful gauge of the extent to which figures in authority have been ideologically captured. How can we possibly trust politicians if they cannot acknowledge the most basic realities of human biology? While most voters have a limited understanding of various key political issues, we can all see that a failure to define “woman” is either delusional or dishonest, neither of which are qualities we seek in our elected representatives.

For a long time, most people have been unwilling to express what they know to be true for fear of being monstered as a “transphobe” or, even more absurdly, as a “fascist”. But we appear to have reached a turning point. Today, the term “peaked” is used to describe the moment when an individual realises that he or she has been blindly following the dogma of trans activism at the expense of the truth. To reach this point is an inevitability for the intellectually curious, given that gender identity ideology will always dissolve upon scrutiny.

This has been most aptly demonstrated in the recent tribunal of Maya Forstater, a tax expert who is taking legal action against the Center for Global Development (CGD) for wrongful dismissal. Her erstwhile employer’s case rests on the view that Forstater’s belief that sex is immutable is a sackable offence, and it has been fascinating to read the live tweets of the tribunal in which Ben Cooper QC, counsel for Forstater, has been able to interrogate representatives of the CGD. The typical strategies of gender ideologues — to cry “hate” or “transphobia”, or to proclaim that there must be “no debate” — simply cannot be deployed in the context of a tribunal. As a result, perhaps for the first time, we are seeing what happens when the high priests are forced to defend their creed.

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The fictional world of trans activism

By Kathleen Stock

So when Luke Easley, the CGD’s Vice President of HR and Operations, claims that “identity is reality — without identity there’s just a corpse”, the religiosity of this movement is on full display. He is reiterating the view among gender ideologues that we each have a kind of soul that determines our identity, what trans activist Julia Serano has described as a “subconscious sex”. Forstater’s crime was to deny this essential doctrine, or to refuse to pay it the necessary lip-service. Like heretics throughout history, she was willing to exclaim that the emperor has no clothes.

Virtually all of us support equal rights for transgender individuals, and so it is understandable that we would sympathise with those whose happiness depends on presenting as the opposite sex. I am convinced that in most cases the intonation of the mantras “trans women are women” and “trans men are men” comes from a place of empathy.

The recent case of trans swimmer Lia Thomas, however, has prompted many to reconsider the uttering of falsehoods even for compassionate purposes. Thomas ranked 554th in the college league tables when competing among men, but soared to the top of the rankings in the women’s category. The biological advantages of being a man in a woman’s competition became obvious when a photograph was widely circulated of the winners in the 500-yard freestyle in Atlanta: Thomas towers over the other athletes on the podium.

Even those who are determined to hold fast to the view that “trans women are women” will find it difficult to look at the image of Thomas mounting the victor’s podium without sensing a collision with the brick wall of reality. As William Hazlitt put it: “Facts, concrete existences, are stubborn things, and are not so soon tampered with or turned about to any point we please, as mere names and abstractions.”

Yet this hasn’t prevented certain media outlets from disregarding the significance of biological sex, even when reporting on male violence. Only last week, an article appeared on the BBC website that outlined the vicious crimes of an 83-year-old woman in New York who had dismembered another elderly woman she had met online, having already spent 50 years in prison for murdering two female friends. Those new to the story would be forgiven for feeling that something is amiss in the reporting. After all, there are very few female serial killers, and even fewer who target other women. It is only towards the end of the article that the writer acknowledges that the killer had “recently identified as a woman”. This detail is presented as an aside, as though it is an inconsequential aspect of the case.

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The liberal case against pronouns

By Andrew Doyle

But perhaps the revelation most likely to “peak” members of the public came last week when Baroness Nicholson of Winterbourne spoke in the House of Lords about a woman who had allegedly been raped on a hospital ward. Apparently, when police contacted the hospital they were told that there were no men on the single-sex ward, and “therefore the rape could not have happened”. The attentive reader will have already filled in the gaps.

This kind of gaslighting is part of a policy known as “Annex B”. The NHS accommodates patients by gender identity, not biological sex, and if a female patient complains that there is a man on her ward, she is to be told that this is not true; there are no men present. As the official NHS guidelines make clear: “Views of family members may not accord with the trans person’s wishes, in which case, the trans person’s view takes priority”.

In the same NHS document, it is asserted that sex is “assigned” at birth. Everyone knows that sex is observed and recorded, often before birth, and so it is surprising to see the holy writ of this new religion find its way into an official report. For medical practitioners it is particularly important that there are records of our sex, which is why we each have a unique NHS number to store this information. Yet patients are currently able to change this number on request so that it reflects personal identity rather than biological reality.

Even more worryingly, a 2010 document from the NHS Information Standards Board entitled “Mixed-Sex Accommodation Specification” explicitly states that the public must be misled on these matters in order to avoid general confusion: “The policy commitment relates to gender, not sex, but to ensure a better public understanding it is referred to as Mixed-Sex Accommodation (MSA)”. In other words, although the then Health Secretary Andrew Lansley had announced that NHS wards must be segregated by sex, behind the scenes it was understood that gender was to be the determining factor. It seems that the plebeians cannot be trusted with the truth.

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The truth about trans murders

By Tish Still

Today, the public are seeing for themselves the impact of gender policies in the real world: male athletes are competing in women’s sports, the media is reporting on male serial killers but using female pronouns, and a rape victim is told that the assault she experienced must have been a figment of her imagination. Incidents of this kind, now occurring too often to be dismissed as aberrations, have led us into what Jürgen Habermas described as a “legitimation crisis”, a general loss of confidence in institutional authority.

This is why it is crucial that we find a way to restore the primacy of truth in our public discourse. It isn’t a “gotcha” to ask a politician to define terms such as “man” and “woman” — it is a means by which we can assess the honesty of the ruling class. Their white lies might be compassionate in nature, but they clearly have damaging effects and the public is losing its patience. For all the false accusations of “hate”, “bigotry” and “transphobia” that stifle open conversation about these important issues, the tipping point is undoubtedly near.

Freddie Sayers spoke to Glenn about Joe Rogan and Whoopi Goldberg, Joe Biden’s new Supreme Court Justice, and how to fix America’s torturous racial politics.

Joe Biden has pre-announced that his nominee for the Supreme Court will be a black woman. What do you think about this? 

I think it is strange. I think no one needs to be apologetic about reacting to that announcement with a bemusement and kind of quizzical ‘what?’ This comes out of Joe Biden’s political ambition, and the character of American politics. During the South Carolina primary when Biden was uncertain of prevailing in the contest for the nomination of the Democratic Party, in 2020, he wanted to appeal to the black vote and so he made this announcement. He announced that his vice presidential selection would be a woman and that his first appointment to the Supreme Court, should he be fortunate enough to have one, would be a black woman.

You could call this craven pandering. I’m bemused by it because it unnecessarily raises questions about the fitness of whomever he might appoint, when he might have simply chosen a black woman as his nominee, and crowed about it after the fact. To avoid casting any doubt over the choice that he would have made, he could have said this is the best, most qualified person that I could find. But in any case, as he’s done it now, he’s limited his range of options to a very small percentage of the total population of people who might have been selected, and, you could say, has put an asterisk by the name of whomever it is that he might ultimately select.

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By Tomiwa Owolade

This is, by the way, the Supreme Court of the United States of America, this is the final stopping point for any legal dispute. There are nine justices serving there, the quality of an appointment is not a small matter. We’re not now admitting a marginal student to an elite college campus, we’re selecting the people who are going to govern the country. The President might have engaged in a kind of subtle and tacit preference, rather than crowing about it and making it overt and explicit. It sows a kind of contempt for the standards that we ought to be employing.

Is it right to aim for public bodies to be “representative” of the population? 

What do we mean by representativeness and who can represent whom? How many Catholics are there on the US Supreme Court? I’m pretty sure there are more Catholics on the court in proportion than there are Catholics in the population. Dare we ask the question: how many Jews, how about gays, how many openly gay people are on the Supreme Court? How dare we. That’s a rabbit hole that we don’t really want to go down.

And it’s kind of silly because it presupposes that something as superficial as racial identity or sexual orientation is of such fundamental significance that legal counsels must have members present who, when they act out in that context, are acting on behalf of, quote unquote, their group. Well, these individuals are not only women, or blacks, or gays, or Catholics. These are human beings whose humanity supersedes and reaches beyond the categories that we might impose on them.

You were the first African American to become a tenured professor at Harvard. Would you have felt differently about this achievement had the governors at Harvard pre-announced before selecting you that they were going to choose someone of African American heritage? 

My appointment as professor of economics at Harvard, which happened in 1982, was accompanied by an initiative at Harvard to enhance the quality of the Afro American Studies department there. I was jointly appointed: economics and Afro American Studies. I was 33 years old. It would have been entirely fair, for some outside observer looking at that to say: “Oh, well, fine. But if he hadn’t been black, they wouldn’t have appointed him.” That’s probably true. So such is the condition that we find ourselves in.

How do you think someone like Whoopi Goldberg can get to the point where said that the Holocaust was not about race? 

I assume it’s because she thinks Jews are white. I would chalk that up to ignorance and naïveté — just not being immersed in the long history of modern Europe and anti Semitism and the ideology of Nazism, in which the notion of race had a very particular meaning. I think Whoopi just didn’t appreciate the actual meaning of the word race, in the context in which the Holocaust arose, revealing her ignorance. She ought not to have put it that way. It is a misstatement or mischaracterisation to say that the Holocaust was not about race — it just wasn’t about ‘race’ in the way in which we in the United States might be talking about race.

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What liberals get wrong about race

By Eric Kaufmann

One finds anti-Semitism not only on the far-Right, with ‘Jews will not replace us’ kind of sentiments, but also in ethnic minority communities. Especially among African Americans, there’s quite a bit of anti-Semitism; there are attacks on Jewish interests. The Reverend Al Sharpton, a prominent civil rights leader, got his start in part by demagoguery over incidents in which there was conflict between blacks and Jews. He has a history in which I think anti-semitism would be a fair descriptor.

Why is there not more sympathy for the Asian community among progressive activists? 

The Asians are called a model minority — people say that sardonically. And of course, the subtle implication there is that you must be anti-black if you compare blacks to Asians, and you find the blacks wanting — or anti-Latino.

Some of the corruption and decadence of the legacy population here, black and white, in American society, is exposed by Asian success. They expose the lack of depth and seriousness of too many of our people by their assiduous self application, and their excellence in the mastery of the currency of the modern world. I’m talking about calculus, I’m talking about biochemistry.

Do you think this kind of thinking actually makes racial tensions worse? 

So George Floyd is killed — murdered, a jury has spoken — by Derek Chauvin in Minneapolis, in 2020. A policeman inappropriately applying force, he had his knee on the man’s neck, the man expires. Was that a racial incident? Now the police officer was white, the man was killed, George Floyd was black — it became a racial incident. A whole movement was launched or abetted by the racial characterisation of that incident. But why should we understand it as a racial incident?

There is very little evidence at all, if any, that Chauvin was motivated by racial animus when he acted. And on the victim side, George Floyd, the fact that a policeman might over use his power and harm a citizen — that’s something that happens to white people, too. There are cases parallel to the George Floyd case in which the victim has been white, which have not occasioned national attention. So that’s one thing.

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By Asra Q. Nomani

But the other thing that I would say is that by cultivating a practice of looking at such incidents in racial terms, invites a parallel practice of looking at criminal victimisation of citizens in racial terms. You want to count the number of white cops who have killed unarmed black men, somebody is going to start counting the number of black murderers who have abused, black carjackers who have robbed and threatened, black assaulters who have bludgeoned and beaten white people. There are an endless number of such cases.

There is enough racial blame to go around, and I’d hate to live in a country in which when a white person was victimised by a black criminal, the first words out of their mouth were “a black criminal victimised me”. That’s not good for black people, because there are many black criminals. And that’s not good for our country because the issue is a criminal victimising a person; the criminal’s blackness doesn’t stand in for his race. He doesn’t represent his race when he acts badly. The victim’s whiteness doesn’t stand in for her race.

What would happen if Affirmative Action is deemed unconstitutional by the Supreme Court? 

The Supreme Court has six conservative justices, the majority of whom have publicly stated that they have serious doubts about affirmative action. There’s a very good chance that racial affirmative action will be stricken by the Supreme Court.

If it happens, I assure you, there will be mobs in the streets of this country. No progressive activist is going to take the Supreme Court’s ruling as an opportunity to turn within and consider: “if we want to be at Harvard or the University of North Carolina in larger numbers, why don’t we get busy preparing our youngsters from the cradle to be competitive in this great country that we live in where competition is the coin of the realm?” No, they’re not going to do that. They’re going to interpret that as an anti-black move by a racist Supreme Court. I assure you that it is a disaster and I think we’re headed toward it.

In the past week there has been a big, powerful movement to get Joe Rogan removed from Spotify over historic cases of him using the N-word. What should we make of this?

I’m not going to say the N-word on your programme, but I should be able to say it, it’s just a word. I’m talking about a word — I’m not talking about a slur. And neither was Joe Rogan’s use of it a slur. He wasn’t pointing to a person and calling them one in a way of being a derogation, of an insult. He was speaking about speaking. That is to say he was saying that the word exists and then he was saying the word in the context of quoting someone else’s use of it or whatever.

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Kamala Harris was set up to fail

By Ayaan Hirsi Ali

We have a genre here of music, it’s called hip hop or rap, in which the word is used regularly. And they are not using it as a slur either. It’s a part of the English language. Now, this thing that we’re doing here — where we’re making the utterance of certain sounds an indication of a person’s racism, and then seeking to cancel people for it being revealed that they uttered sounds, without any reference to their intent — is a bizarre phenomenon.

And I think that it’s actually not a sign of strength, by the people, black people, who insist that the sound of the word is so injurious to them. I think it’s a sign of their weakness. There’s something almost pathetic about requiring people to indulge you by not making certain sounds with their mouth because hearing it reminds you of lynching, of nightriders coming down on black people who are defenceless and are being set upon and whatnot.

It seems like a lot of the voices that were most upset about this were white. And it seems like more of an intra-elite power battle to do with the nature of the media, in which the race issue is used as a battering ram. What do you think?

Who are those people who listen to Joe Rogan? They are mostly not latte-sipping, National Public Radio-listening, coastal elites in New York City or Washington DC or San Francisco or whatever. They are mostly, or more often than not, male, more often than not, white. There’s some truck drivers among them. There’s some Trump voters among them.

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Designated Criminal

By David Mamet

So this culture war that’s well-advanced here in the United States in which we are in effect, mutually contemptuous of one another based upon what camp we belong in — Joe Rogan is right at the centre of it and his audience substantially is on the ‘wrong side’ from a progressive’s point of view. A lot of this enmity directed toward Rogan is really directed toward his audience.

How do we make it better? 

I’d like to tone down the emphasis on race and be more concerned about the humanity of people. If we want to talk about disadvantage, poverty and the lack of wealth in America, there are more poor white people than there are black people. And anything worth doing, whether it be reform of education, or changes in the tax laws or extension of the welfare state programmes, anything worth doing to help black people is worth doing to help people who are in need of of help. I would have our arguments, that is our African American arguments, couched in broad, humanistic terms. And I think that less attention to racial identity and more attention to human common need is healthy for the country.

This transcript has been lightly edited.

But even those who disapprove of BBB’s fate must surely see that this is America’s political system functioning as it is supposed to function. Biden’s legislation can’t even get the support of half of the Senate — and so it won’t become law. This is standard Washington fare. It is politics as it always has been.

However, to listen to Democrats in the days since Manchin delivered his fatal blow is to be left with a very different impression. According to their version of events, the senator’s decision is tantamount to a crisis for American democracy. Alexandria Ocasio-Cortez has said that “our entire democracy is on the line”; to fix this, she wants to “crack down” on the “very privileged, very entitled and very protected” Senate. Chuck Schumer, notionally in charge of Senate Democrats, responded to Manchin’s decision with a promise that the upper chamber will vote on a bill that would overhaul US voting laws as soon as it is back from a Christmas recess.

Even before Manchin doomed Biden’s agenda, calls for changes to the rules governing America’s system of government — some small, others profound — had grown louder as the prospects of Build Back Better faded. Last week, Elizabeth Warren introduced a bill to pack the Supreme Court with additional justices. “The current court,” she argued, “threatens the democratic foundations of our nation.”

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In Democratic-supporting parts of the media, the tone is no less alarmist. Jennifer Rubin, the West Wing’s favourite columnist, argued in the Washington Post that the failure of Build Back Better puts “democracy itself in a precarious position”. She emphasised: “the Democrats’ hopes for 2022 and the fate of our democracy depend on the President’s ability to reconstruct an agenda he can actually deliver.”

In one sense, she’s right. Their legislative disappointment is a chance for Democrats to face a banal, if frustrating, reality: that Biden was not elected with a mandate for transformative legislation, that the party has only the loosest grip on the legislative branch, and that America simply isn’t crying out for the progressive reforms that most of the party favours.

But facing unpleasant facts isn’t fun. Hence why Democrats appear to be slipping further into their own delusions, processing Manchin’s obstinance as a crisis that imperils not just their own electoral fortunes but the future of the republic. And hence why what should be a moderating moment looks likely to have a radicalising effect: their own legislative impotence persuading a party already comfortable with an apocalyptic register to dial up the doom and gloom to eleven.

Such a response can, of course, be understood on an emotional level: you’re more likely to complain about the quality of the refereeing when you’re losing. But it is also worth appreciating on a political level. The Democrats’ 2020 victory was built on the unpopularity of Donald Trump. Without that, it is far from clear they can put together a coalition of voters broad enough to hold on to both chambers of Congress and the White House. And so, with a legislative agenda foundering, it’s time to return to something they can all agree on: the wickedness of the other side.

None of this is to say there aren’t threats to American democracy from the Trumpist Right. The last President spent the months between the election and Biden’s inauguration doing everything he could to stay in power. Any sensible reforms to the rules governing Washington would safeguard against something similar happening again.

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By Oliver Wiseman

But that danger to America’s electoral system only makes the Democrats’ focus on the largely unrelated question of voting rights — and their overblown rhetoric of voter suppression and “Jim Crow 2.0” — more baffling, and less excusable. Instead of tailoring their pro-democracy agenda to the dangers that surround post-election certification, the party is ploughing ahead with a bill that would federalise voting rules in response to some mostly inane changes at a state level.

Elsewhere, Democrats want to overturn the rules that govern the Senate and, if Warren is anything to go by, take the extraordinary step of rebalancing the Supreme Court simply because progressives aren’t satisfied by its current composition. As the centre-left commentator Matthew Yglesias has observed, Democrats certainly aren’t acting as though they believe that the future of democracy is in peril. If they did, they’d surely shelve party-political concerns and build as broad a coalition as possible to combat the Trumpist threat.

The dark irony of the Democrats’ predicament is that they could end up being right for the wrong reasons. There’s a chance, after all, that the failure of Build Back Better really is bad news for American democracy — but only because it radicalises their own side.

A universe in which Biden and other Democratic lawmakers listen to Manchin’s complaints about the legislation, attempt to understand the concerns of the voters he represents (without whom the Senate would be in Republican hands), and steer themselves back towards the centre feels a long way away. Biden, for his part, has taken a tough line all along: according to the Washington Post, the White House rejected an offer from Manchin that included the vast majority of the bill’s provisions.

Now the West Virginian has walked away, they appear to be pursuing a vindictive, scorched-earth strategy. Faced with Manchin’s exasperation, Democrats cry foul, accusing him of being a corrupt coal boss and choosing to ignore the obvious fact that the legislation would have been very unpopular in his home state. Again, the clear, normal, predictable explanation is spurned in favour of a more alarmist narrative.

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Biden himself is certainly capable of overblown rhetoric about the future of American democracy. But so far he has mostly resisted calls from Democrats to go nuclear and change the rules that govern Washington to favour his own party. That refusal grows harder by the day.

Many in his party are rightly concerned that their country is stuck in a downward spiral, but they cannot see their own part in the process. Increasingly, both sides view anything other than victory for themselves as illegitimate. A party that responds to its own perfectly normal legislative woes by doubling down on an all-out battle to rewrite the rules of the system in its favour is not serious about ending that descent into anarchy. And so, the more impotent the Democrats feel, the more dangerous they become.

Pro-life culture was particularly hostile at the time, and many of us felt under siege in our Texas location. We ran drills so we all knew what to do if someone released anthrax in our building. Being hated is often clarifying, and we all believed we were doing good, even if in a sometimes shabby way.

It took a while to notice that the executive director was making six figures; that the administrative offices, unlike the clinic, never had broken chairs; that the clinic in the posh neighbourhood was nice and the clinic on the side of town where white people were a minority was not. Planned Parenthood was forever making headlines for testifying in front of Congress, or getting into a war of words with some hideous Christian fundamentalist who claimed abortion causes breast cancer (it doesn’t!). But it didn’t seem to be lobbying for healthcare expansion, or campaigning for compulsory training in abortion services for medical students. It wasn’t challenging politicians who claim to be pro-choice but only mention it when there’s an opening on the Supreme Court, instead of consistently supporting policies that would help the women who came to us in need.

But as hard as it was working in the hostile environment of Texas, back before people started to have hopes of flipping the red state blue, it also felt historically important. This is where American abortion rights were born, and this is where the greatest threat to those rights now lies. On September 1, the state blocked access to all abortion services for women beyond six weeks of pregnancy. Because most pregnancies are impossible to detect or confirm before the four-week mark, and because many women won’t realise they are pregnant until considerably later than this, the state has effectively blocked abortion access full-stop. The law was immediately challenged, and the Supreme Court has heard arguments, but so far it has not released any ruling. Still, with the way the court is packed at the moment, with a heavily conservative slant, it’s not looking good for supporters of reproductive justice.

It’s poetic, almost, that Texas is erasing a right that originated within it. Sarah Weddington was only 25 when she filed a lawsuit, in 1970, against the Dallas district attorney. She was acting on behalf of a pregnant client who was seeking to obtain an abortion, pseudonymously known as Jane Roe. Before long, Weddington found herself in front of the Supreme Court, making the argument that finally gave American women the legal right to terminate a pregnancy. But the focus of this landmark case, and the way it was handled by the professional feminist community, showed that it was only a matter of time before the pro-choice project came crashing down. Because from the very beginning there existed a gulf — one that I noticed on the frontline of Planned Parenthood — between the empowering rhetoric of the professional activists and the realities of those who found themselves pregnant and vulnerable, caught in the middle of a political battlefield.

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The Planned Parenthood promotional materials always exhibited the bright smiles and shiny hair of healthy young women, confidently making the healthcare choices that were right for them. They aren’t the ones who needed our help. I remember a week of repeated calls from a young man describing his girlfriend’s symptoms over the phone, all of them suggesting pregnancy. “But she’s not pregnant right?” All I could do was say it’s impossible to diagnose pregnancy over the phone and urge him to tell her to come into the clinic. I could hear him telling her, “They say you’re fine,” and I wondered how long he pressured her not to get help — and if, by the time she was “allowed” to take a pregnancy test, it was too late to choose whether or not to end it.

The people who most needed assistance, then, were not the independent and beautiful poster children of a Planned Parenthood ad campaign. They were much more like the woman at the centre of Roe v Wade, whose name was actually Norma McCorvey. She already had two children. Her first became the centre of a custody battle between McCorvey and her own mother; her second was adopted outside the family. When McCorvey realised she was pregnant for a third time, she tried to get an illegal abortion, but she found the clinic had recently been raided by authorities.

Her young, idealistic attorneys immediately recognised the potential McCorvey’s story held. It was the kind of case that could make it all the way to the Supreme Court, due to her already troubled maternal history. But they also knew that this wouldn’t help her individually: if she stayed in the spotlight, McCorvey would have to continue the pregnancy. She made the sacrifice, in the name of women’s rights. But she found that the feminists who championed Jane Roe, a legal persona, had very little time for Norma McCorvey.

In the 2020 documentary AKA Jane Roe, McCorvey talked about how she was sidelined. She wanted to speak at a pro-choice rally, but the organisers were more interested in Gloria Steinem and other more professional, or photogenic, activists. McCorvey was poor, identified as a lesbian, and lacked formal education. Her story wasn’t one of triumph and empowerment; it was one of abuse by men, familial dysfunction, and addiction. She was in desperate need, but she wasn’t a particularly inspirational standard-bearer.

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By Kat Rosenfield

This same problem plagues the pro-choice movement today. In an attempt to “normalise” abortion, and thereby gain widespread support for reproductive rights, the movement focuses on an appealing minority: attractive, professional, financially stable women “shouting their abortion” on social media. It’s as if once we hear that the cute blonde girl got pregnant through no fault of her own and she really just isn’t ready for motherhood — she can barely take care of herself right now! — then we’ll finally understand that it should be fully legal and accessible. Lindy West, in a viral essay, compared getting an abortion to having a tooth removed, giving the sense that these decisions are easy to make, these services are convenient to access, and the procedure is comfortable to endure.

But pretending that the young, urban, middle-class woman who is choosing ambition over family is representative of those who need abortion services does nothing to help, well, anybody who isn’t that. And providing abortion access on the ground looks quite different from getting paid a couple of hundred dollars to write your personal pregnancy essay for an online magazine. It means dealing with death threats and harassment by protesters at clinics. It means putting your body on the line to escort clients from their cars to the clinic so they don’t have to face the screaming, praying, howling protesters on their own. It means listening to terrible stories sometimes, of people refusing to take responsibility for their own lives. It means seeing a woman coming in for an abortion six months after her last one and helping her anyway. It means letting strangers sleep on your couch because they drove for five hours to get to the clinic and didn’t have money left over for an AirBnB.

While I worked in the education department during the day, at night I often covered shifts for the abortion fund’s hotline, offering financial and logistical counselling for those who were pregnant and urgently needed to figure out how not to be. We talked about applying for credit cards, we compared prices at different clinics, we strategised places to stay if they had to go out of town. It was hard, draining work. Because often they felt compelled to explain how they got into their situation, and many ended up referring to our failings.

They went to Planned Parenthood to get an IUD but were offered no pain relief, and it hurt so badly that they vomited and passed out before the procedure could be completed. Or the clinic required a Pap smear before it would renew their Pill prescription, but when they came for their appointment, they could only wait for an hour before they had to give up and go to work, otherwise they’d be fired. And I listened to all this knowing that Planned Parenthood weren’t model employers. In fact, they have been the focus of multiple labour disputes for underpaying and exploiting their clinicians. The consequences for our institutional failings never affected our CEO, but it left me flat on the floor night after night.

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Texas has betrayed women

By Jill Filipovic

In a recent essay for Harper’s Bazaar, Sarah Schulman wrote about her experience working with an underground abortion network in Seventies Fascist Spain. As an American, she could enter and leave the country without much notice, making it easier for her to smuggle in illegal contraceptives and other materials needed by the group. The activists were risking imprisonment in order to help one another end pregnancies, creating a kind of solidarity and sense of purpose that’s lacking in the American pro-choice community. Our professional feminists are heavy on the rhetoric and weak on hands-on action. They are focused on institutions, like the Supreme Court or Planned Parenthood, instead of the women who need them most. They have managed to squander support from the majority of the population and allowed our rights and access to fall in disarray. This time, we can’t only point our fingers at the religious Right and the patriarchal stereotype of Texas.

When I had to have an abortion in Germany, I was extremely nervous about the general anaesthesia. I had never gone under before. What would it be like? What if something happened while I was there all alone, in a country where no one knew me? I didn’t speak any German, but as the nurses and doctor moved around me in the room, I managed to squeak out, “I’m scared.” And immediately everyone stopped what they were doing and just put their hands on my arms and legs. They applied just a brief pressure before they returned to their tasks, but it was the most comforting and caring gesture I had ever experienced. I think of it often. Pregnancy is a crisis, and the only moral and compassionate response should be: all hands on.

Ginsburg-worship is just another way to proclaim your place on the political and cultural spectrum, but it might actually have changed American history. In 2013, just as RBG memes were becoming popular, Ginsburg was urged by some supporters to step down and allow President Barack Obama and a Democratic Senate to appoint a younger liberal replacement. Then aged 80 and suffering recurrent cancer, she refused. She died in office in 2020, allowing Donald Trump and Republican senators to tilt the court, and American life, away from her values. Did enjoyment of fame contribute to her decision? Never mind the dangers of judicial vanity: there are T-shirts to sell, and virtues to signal.

Some people clearly dream of turning Brenda Hale into Britain’s RBG, a pioneering feminist lawyer and cultural symbol. These are people who spend too much time online and have #FBPE in their Twitter bio. A couple of years ago, many of them added spider emojis, too, in tribute to Hale: she is best known for wearing a spider-shaped brooch while ruling, as president of the Supreme Court, that Boris Johnson’s prorogation of Parliament — a crude attempt to “get Brexit done” — was unlawful. In the days that followed, people seemed more interested in this “coded statement” — this “secret message” — than the unambiguous ruling, which marked the culmination of Hale’s stellar legal career. She retired not long afterwards and has now written a book that her publishers evidently hope will appeal to all those people who obsessed over her “power dressing”.

I suggest that this is her publishers’ hope because Hale doesn’t seem particularly keen on this attempt to turn her into a celebrity. Her book suggests an author somewhat resistant to the narratives that are being enthusiastically imputed to her.

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One of those narratives is of social mobility and possibly even class struggle: however did a girl from a little village outside Richmond in Yorkshire (not, she says early in the book, “the sort of place where you would expect a top judge to grow up”) reach the Supreme Court? Yet Hale’s origins are hardly humble. Born in 1945, she is the daughter and granddaughter of Oxbridge graduates. Her father is head of a boys’ grammar school. Her parents take the Telegraph, invite neighbours for sherry after church, and send the handyman to collect Hale and her sister from school at lunchtime so they don’t have to eat with the village kids.

Serious, diligent and ferociously bright, Hale progresses to Cambridge with neither difficulty nor trepidation. She rightly notes that this makes her part of a tiny minority: only 4% of school-leavers went to university at the time. She also says the transition to university didn’t faze her, because this was just what her family did: it was normal. So much for that class struggle, then.

Meanwhile, Hale pays only the most superficial attention to wider issues of access to the legal professions. She offers a rose-tinted view of today’s law school as places that mean people who would never have dreamed of becoming lawyers in the past can now do so. And yet, they undeniably remain bastions of privilege, much of it inherited. The sociologists Sam Friedman and Daniel Lauriston calculate that the children of lawyers are 17 times more likely than other kids to become lawyers. A 2020 study by Bridge Group and the University of York concluded that “the legal profession remains dominated by individuals from higher socioeconomic backgrounds with students from lower socioeconomic backgrounds half as likely to attend the top English law schools as other students”.

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Still, Hale seems better placed to discuss struggles not of class but of sex. Her success as a female lawyer in a male-dominated establishment is remarkable, and she deserves to be held up as a role model. But again, she seems reluctant to play the part. Her book has a striking opening, in which she writes frankly of suffering “imposter syndrome” at numerous points in her impressive career. But this candid author then quickly disappears behind a fairly dry account of her career progression. Having been set up to tell the story of a determined woman who rose to the top in the face of male chauvinism, Hale sometimes makes becoming a top judge sound almost easy.

In her telling, the closed male legal establishment actually looked after her rather well. She becomes the first ever female member of the Law Commission, despite not actually applying for the role — a more senior lawyer on the Commission nudges her into it. She becomes a judge after the traditional “tap on the shoulder” from a senior official. Further promotions sound smooth and painless. Occasionally she’s annoyed by anachronistic masculine judicial titles, silly remarks from colleagues and daft old dinner-table traditions that exclude women. But her book isn’t a tale of institutional sexism.

That’s not to say such bias doesn’t exist, and didn’t figure in Hale’s career. Rather, Hale isn’t giving us the whole story here; she often seems reluctant to talk about herself, her experiences and feelings. Her personal life is largely absent. The end of her first marriage, after 24 years, is mentioned only obliquely. Her daughter gets a handful of mentions, but there is no account of how she combined family life with a demanding job. The book is subtitled “A Life” but it would be better to say: “A Career”. Influential men, of course, when they write their memoirs, aren’t expected to explain who was looking after the kids while they were conquering the world — but given that so many women find their careers hindered by family responsibilities, Hale might be a more accessible role model if she’d addressed the subject.

That career has been driven by a truly formidable intellect — it’s hard to avoid the conclusion that Hale’s rise demonstrates the old adage that a woman has to be twice as good as a man to achieve the same. But her refusal to talk about herself blunts her ability to explore sexism in the legal establishment. She’s more comfortable talking about her cases and the law itself. This is generally done dispassionately, though she reflects intriguingly that her time as a family court judge was largely spent “oppressing” women.

Perhaps she’d rather not be defined by her sex, but it’s hard not to think, reading her memoir, that an entire book by Hale on how and where the law fails women would be fascinating — and powerful. But that book wouldn’t include the prorogation case, Brexit or that spider brooch — the things that made her properly famous, and therefore the things most likely to sell copies.

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Focusing on them, though, is to forget that Hale was a public figure for decades. During that time, she figured occasionally in newspaper reports. Not all of them were positive, and this rankles — she recalls not just unfriendly Daily Mail headlines about her, but the page numbers and reporters’ bylines (“On 23 October 1995 there was a front-page article by Paul Harris”). In a rare display of emotion, she says such personalised coverage is “distressing”, but insists the greater worry is journalists’ failure to understand her legal thinking.

Was this memoir written as the last word, then? Somewhere behind the veil of judicial dispassion stands a human being with the same frailties as the rest of us — including vanity and inconsistency.

Both of these are displayed in Hale’s account of the prorogation case. To my mind, the Supreme Court’s ruling was a good one, re-establishing Parliament’s constitutional primacy, and deserving of ongoing attention. But how much do we need to know about the people who gave that ruling? How much do we gain from learning that Hale wrote her findings from her house in Yorkshire, and that one of her fellow judges did the same in Sicily?

Hale herself insists that the legal principles are what really matter here — and professes exasperation with public focus on her appearance in court. “What I was wearing that day is not important,” she declares, shortly after telling us what she was wearing that day, including the spider brooch and its history. Despite her exasperation, she appears rather pleased by the people who buy T-shirts with a spider logo or wear spider badges “to show their support”. And then there’s the title of her memoir, Spider Woman, which features the famous brooch on the front cover. Hale may not like that attention on her outfit and jewellery — something a male judge, surely, would never experience — but she’s content to use it to promote her book.

Is there a touch of vanity here? I suspect so, but I don’t say that as a criticism: we are all vain creatures, and there’s no shame in that. Even the most august and dispassionate of judges may succumb to the urge to show off a bit — fame has a terrible allure. To plug her book, Hale has been doing the media circuit of broadcast and print interviews, alongside authors, actors, and influencers. And even before the prorogation case, she heard the siren call: in 2018, she appeared as a judge on Masterchef. This is the age of celebrity, and everyone’s invited, even judges. Indeed, in her book, Hale make the case for diversity on the bench by arguing that judges must look like the society they serve. Perhaps they ought to be selling themselves, on Instagram or TikTok, to ensure that young people engage with the law and relate to those who uphold it.

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By Selina Todd

Then again judges are arguably the closest thing we now have to Plato’s Guardians, a group that comes from society but still sits apart from it, in order to make decisions in our best interest. We don’t really need to know what they think or — worse — how they feel while they dispense justice. And the more we know about them, the more likely we are to disagree with them. Familiarity breeds distrust. The story of Ruth Bader Ginsburg should be a cautionary tale to British judges, not an inspiration. For every American who adores “Notorious R.B.G.” there is one who distrusts liberals in the judiciary. It is better for public trust in our institutions if impartial public servants keep quiet than if they make themselves more “relatable” figures, a lesson that a certain former House of Commons Speaker has sadly ignored.

I’m wary of imputing thoughts to Brenda Hale, but I wonder if she, too, is in two minds about the wisdom of a senior judge courting celebrity. Perhaps that explains why her book is stuck somewhere in the quagmire between fully revealing autobiography and impersonal legal history.

Weeks ensue and a multitude of these postal ballots are contested in the courts. Soon after, they are appealed to the highest legal authority. The now heavily Trump-laden Supreme Court (including its newest member, the recently confirmed Justice Amy Coney Barrett) largely adjudicates in the GOP’s favour. But there’s still no definitive outcome in the Electoral College tally. Encouraged by Hillary Clinton, Biden refuses to concede.

Absent a determination in the electoral college, the US Constitution mandates a vote in the House of Representatives where Speaker Nancy Pelosi will lead a roll call of voters. The only problem here is that if the determination goes to Congress (which has only happened once before in the nation’s history), each state gets one vote, and Republicans now control 26 of the 50 state delegations. Assuming the party lines hold, that would mean re-election for Trump.

Democratic supporters are in a state of hysteria. Feeling cheated out of the popular vote yet again, violent protests surge across the country. Some of the biggest are in California, whose residents are tired of having their votes persistently nullified by tiny states like Wyoming or South Dakota. After a few weeks of riots and the National Guard’s inability to quell the unrest, a dormant “Calexit” movement springs to life…

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Uber's dangerous drive to serfdom

By Marshall Auerback

Secession has not been seriously contemplated in the US since April 1861, when Confederate guns around Charleston Harbor opened fire on Fort Sumter in South Carolina just over a month after Abraham Lincoln’s inauguration. The Union’s victory in the four-year long Civil War, along with a later constitutional ruling in the case of Texas v White in 1869 was thought to have settled once and for all the issue of unilateral secession. 

But this does not preclude a constitutional renegotiation. Much like Brexit, once seen as a wild-eyed fringe movement, a California independence movement is no longer fanciful. Since the election of Trump, the idea has been gaining traction: a 2017 Reuters poll suggested that one in three Californians was supportive of an independence movement. In the context of a highly contested election in which Trump is re-elected, that’s almost certain to rise.

A California Independence Referendum initiative was drafted last July, a proposed initiative that, if qualified by the California Secretary of State, would allow a popular vote on whether to leave the Union to be on the state ballot by 2022. It is unlikely that this process would lead to civil war. Indeed, when confronted with the happy political implications of the largest Democratic state leaving the union, Republicans might welcome “Calexit”.

But would sovereignty truly represent a panacea to most Californians? On the surface, it would certainly appear to be viable as a stand-alone country: California would have the 5th largest GDP in the world, barely behind Germany, but ahead of both India and the United Kingdom. And its ostensibly progressive politics would no longer be hampered by American constitutional arrangements that seem designed to frustrate such aspirations.

But look a bit closer, and the benefits appear less obvious. It is true that Californians by large margins disapprove of almost everything Trump has done as president, notably on housing policy, climate change, healthcare reform, deregulation, tax, and issues pertaining to economic inequality. However, the state also exemplifies the most extreme version of America’s worst pathologies, many of which are the reasons why Trump got elected in the first place.

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Consider that California’s economy remains profoundly unequal, despite its robust economic growth historically. Its level of income inequality exceeds that of all but five states. Wealth inequality is even more pronounced: 20% of all net worth is concentrated in the 30 wealthiest zip codes, home to just 2% of Californians. 

The response to the Covid-19 pandemic has further exacerbated these disparities, as have the wildfires currently incinerating the state. The latter highlights the state’s vulnerabilities to the ravages of climate change and droughts, which have decimated its many agricultural-based industries. Similarly, the decaying public infrastructure has necessitated rolling electricity blackouts in order to prevent the state’s electric utilities from starting yet more wildfires (we’re not even through 2020, but already this year’s fires dwarf the 10 biggest from the previous decade).

Anybody moving to the Golden State today would be shocked at the cost of housing; California’s housing affordability ranks last among the 50 states. This has led to an epidemic of homelessness that evokes scenes from the dark ages, as author and long-time California resident Michael Shellenberger has described: “The 44,000 people living, eating, and defecating on the streets of L.A. have brought rats and medieval diseases including typhus.” And all this is occuring in a state that is home to the largest number of billionaires living in the country.

Virtue-signalling Silicon Valley oligarchs (who comprise a large chunk of these billionaires) hope to sustain the status quo through the expedient of a Universal Basic Income guarantee. The UBI sounds like progressive policy, but in fact is a placebo reform that fails to address the serf-like employment conditions that increasingly prevail in the state. 

Silicon Valley employers love the idea of the UBI. For them, it represents a de facto subsidy from the government, which means they could retain more of their fat profits instead of paying them out to their increasingly stressed workers. But at least they find the time to pay lip service to social justice movements like Black Lives Matter.

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Who will salute Trump's man in Berlin?

By Marshall Auerback

For all of the state’s celebration of innovation, entrepreneurialism, and job creation, a research brief from Chapman University’s Center for Demographics and Policy highlights that California is producing far fewer mid- and high-paid jobs than the rest of the country. The brief also indicates that most of these jobs pay under the US median wage, and 40% pay under $40,000 a year. 

By contrast, higher-paid industrial jobs, critical to the progress and upward aspirations of the working class, have dropped well below the national average over the past decade. As a result, “California has now taken on an increasingly feudal cast, with a small but growing group of the ultra-rich, a diminishing middle class, and a large, rising segment of the population that is in or near poverty”, writes Joel Kotkin.  

While Silicon Valley itself has become synonymous with high tech-led prosperity, cities in North Carolina, notably Charlotte and Raleigh, along with Austin, Texas, now outrank many leading California metropolitan areas as the top spots for tech professionals to work. And let us not forget how Washington state has risen as an alternative high-tech hub with the creation of Amazon and Microsoft over the past 30 years. 

Secession, therefore, would complicate matters, as that specific employment escape-valve might no longer be automatically available to Californians if or when its workers decided to emigrate in search of superior job opportunities. 

Which brings another uncomfortable truth closer to home. As much as California likes to see itself as the new frontier for technology and cutting edge visions for the future, this rose-tinted view conveniently forgets the significant role that the US government itself played in creating the innovation platform that established the foundations of much of the state’s prosperity. 

It is the US government, for example, that created the Internet, as well as many other transformative general-purpose technologies. If we see a return to ambitious hi-tech industrial policy on the part of the US government, then a separate nation of California obviously wouldn’t benefit.

Of course, this conjecture about California’s future as an independent nation-state is still all in the realm of fantasy. Depending on the national US election outcome, however, the fantasy could well morph quickly into reality.

But that future reality provides no happy ending. Breaking up the alliance between Washington DC and Silicon Valley would leave the latter exposed — especially in a world where the continued dominance of the existing tech giants is by no means guaranteed. If the standard-bearers of the Golden State’s economy end up sharing the same fate as Lucent or Eastman Kodak, then Californians would regret forgetting that they are, at heart, Americans.

This war truly divides American politics today: the struggle is between those who revere America’s past and those who question or disdain it. It is a war that, like binary conflicts of the past, promises to get much worse before resolution can be found.

America’s Founding Fathers recognised how dangerous such divisive binary wars over values could be to the political order. In the Federalist Papers, Alexander Hamilton and James Madison explained how the new Constitution was intended to minimise the dangers. Their arguments remain important today, both in understanding why America has so rarely become engulfed in these types of conflicts, and why it is now teetering on the brink of one.

They identified two types of conflicts that could destroy a state. The first flowed from the economic demands democracy would create. Looking to the ancient Greek and Roman republics, they sought to remove the possibility that a popular majority would try to take the wealth of a rich minority. To this end, the Constitution’s primary author, Madison, insisted on three innovations that remain mainstays of America’s governing structure: representation, bicameralism, and the separation of powers.

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The existence of the three reduces the possibility that one single group – what Madison called a faction – could seize control of all the levers of government at once. Representation ensured that a mob could not be whipped into a frenzy to violent action: their will could be exercised only indirectly. Bicameralism meant that a faction had to obtain control of two different electoral bodies, each with its own mode of election, and elected according to different schedules, to obtain legislative power. The separation of powers added a third hurdle: that such a faction would need to win control of an independently elected executive to wield the full power of government. Madison thought that these measures would break the zeal and intensity of a single faction’s desire to dominate, and as such preserve civic peace.

The second type of binary conflict stems from debates over ways of life. If one faction believed that their way was the right way, it could use control of the government to force its views on dissenters. This is what happened in Europe during the religious wars of the 16^thand 17^th Centuries, when Protestants and Catholics warred incessantly over whose was the one true religion.

Madison and the Founders sought to prevent such a destructive conflict from ever coming to America by removing religion from national politics altogether. The Constitution contains a clause that forbids the institution of a religious test for holding public office; in the United States, simply being a Catholic or a Jew would not bar one from public life.

The Constitution’s First Amendment also prevents Congress from “making any law respecting the establishment of a religion, or the free exercise thereof”, further removing religious disputes from national public life. Nothing in the original Constitution prevented states from establishing a religion; indeed, Massachusetts would not disestablish its state church until 1833, and New Hampshire did not remove its own religious test for office until 1876. The Constitutional impediments, however, did prevent religious quarrels from becoming national political questions.

Today’s conflict is neither religious nor economic. In this respect, the Founders’ protections have held. But the growth in national judicial power has made Madison’s original barriers to faction much less salient. And today, binary conflicts over values need not necessarily concern religious doctrines.

Americans today are, instead, deeply divided over culture; they are at odds over which is the best way of life to lead. On the one side are people who find America’s traditional, European, and Christian culture defective; on the other, there are those who believe that heritage to be valuable and essential. The first group finds its political expression in support for same-sex marriage, feminism, and measures empowering immigrants and non-whites. The second is the realm of the evangelical Christian and its allies in other orthodox and traditional faiths – as well as those worried about the declining importance of Americans of European heritage.

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By Frank Buckley

A poll from late 2017 shows how neatly these views separate into the two political camps. Conducted by YouGov on behalf of the cross-partisan Voter Study Group, it asked whether respondents thought America “has one primary culture with traditions and values that most everyone believes in”, or “has many different cultures with different traditions and values that people believe in”. Seventy-seven percent of Clinton voters said America has many different cultures, while 54% of Trump voters said it had one primary culture. The share of respondents who thought America has one primary culture increased with self-described conservatism, and among groups most favourable to Trump or the religious Right.

These differences have spawned dramatic increases in partisan hatred. A new book, Prius or Pickup, citing survey data, shows that nearly half of Republicans and Democrats hate the other party, more than twice the level of hatred just two decades ago. Another survey taken in 2016 found that between 41 and 45 % of partisans thought the other party’s policies were a threat to the nation. By mid-2017 more than half of Democrats and Republicans thought the other party represented a national threat. In light of these data, perhaps recent editorials by liberal columnists saying the Kavanaugh confirmation was “illegitimate” or represented “war” should be taken as serious beliefs rather than hyperbole.

These cultural divides are politically crucial nowadays because America’s Constitution has, through decades of Supreme Court rulings, made them the subject of national political debate. The traditional understanding that the federal Constitution, and especially the First Amendment, did not apply to the states was overruled in a series of cases between 1925 and 1947. Since then, virtually every major issue concerning traditional Christian views of morality has been decided via a Supreme Court decision, not by legislation. As a result, cultural questions have been nationalised in a way the Founders sought to prevent, and control of the Court is thus vital to each side’s interests.

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By Henry Olsen

This is why Kavanaugh’s nomination has stirred such passions. His confirmation meant that his would be the fifth and deciding vote that could overrule a host of Court precedents supported by Democrats and Clinton voters. For them, therefore, stopping him was a must, something that could not be compromised. The survival of their way of life depended on their winning this battle.

Similarly, traditionalists saw his vote as a bulwark against further potential Court rulings that might be adverse to their interests, as well as a potential vote to overturn such rulings as Roe v Wade (which established a constitutional right for a woman to have an abortion) or Obergefell v Hodges (which established same-sex marriage as a constitutional right across the United States). Losing for them was not an option.

The religious wars were similarly fought over the right way to live, each side deeming its own interpretation of Christianity as the one true one. Only the stalemate produced by over a century of warfare, culminating in the Treaty of Westphalia, ended the bloodshed.

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Is Trump killing or curing American conservatism?

By Henry Olsen

The Westphalian solution could be an answer to America’s woes, but adopting it would require turning back American jurisprudence to its earlier conceptions. The Treaty famously established the idea of religious federalism – as contained in the doctrine cuius regio, eius religio (the ruler of a realm determines its religion) – as the solution to the wars. This is identical in nature to the original American formulation that matters of culture should be for the individual states, and not the national government, to decide.

If applied today, it would mean that Baptist Alabama could have one set of laws concerning abortion and homosexuality, while progressive California could have another. Each side could believe zealously in its own views but, by removing the conflict from the national sphere, the nation itself could be preserved.

There would be difficulties, as the experience of post-Westphalian Europe demonstrates. Religious minorities within states were still subject to persecution. Louis XIV’s revocation of the Edict of Nantes in 1685 ended the freedom of Protestants to worship, leading to mass emigration. Even Great Britain suppressed the rights of religious dissidents until a series of acts of “emancipation” restored full civil rights to Catholics (1829) and Jews (1858).

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Trumpism: America's new religion

By Peter Franklin

In contemporary United States, however, many Americans would be concerned about what would happen in traditionalist states to non-whites, gays and lesbians, and women who sought abortions in other states. The federalist solution sits very uneasily with the ideal of universal human rights.

America did try this approach before, and it ended in our Civil War. And the division was over human slavery. The Founders had deferred the conflict when they drafted the Constitution by adopting a Westphalian model and leaving slavery to the states to determine. But by the mid-19^thCentury that solution no longer satisfied either side.

Those who opposed slavery in the free states of the North sought to either abolish it or curtail its spread by barring slaves from federal territories. Those who supported slavery in the slave-holding South sought to defend it as a positive good and insisted on the right to settle federal territories with slaves in tow. No attempt to mediate this dispute, although many were attempted, could satisfy both sides. And so, as President Abraham Lincoln said in his Second Inaugural Address, “the war came”.

No one expects this conflict to end in war, but that is because the ability of one section of the country to resist another is no longer militarily possible. The potential for physical conflict cannot be ignored, however, as Left-wing activists follow conservative legislators to dinner to harass them, and Right-wing activists regularly denounce their foes as mendacious and deceitful.

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Why I helped Trump kill the old Republican Party

By Frank Buckley

Hundreds of protestors have been arrested already within Senate office buildings as anti-Kavanaugh forces swarm offices of the last undecided members. In a country with nearly 400 million firearms in private hands, it would be easy to imagine random acts of violence breaking out anywhere in the country no matter what the Kavanaugh result had been. What happens now only God knows.

The third author of the Federalist Papers, John Jay, noted that “Providence has been pleased to give this one connected country to one united people – a people descended from the same ancestors, speaking the same language, professing the same religion, attached to the same principles of government, very similar in their manners and customs”. That original unity no longer pertains, and that is the root the cause of the conflict.

It is difficult now to see how it ends. Similar conflicts in history have been defused through partition (India and Pakistan, for example), a grant of special rights to the minority, as in the Edict of Nantes or the Good Friday Agreement, or through the replacement of one set of primary values (Christianity) with another (liberalism). Each of these examples, though, contain the potential seeds of its own failure.

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Why the Open vs Closed debate is so deplorable

By Henry Olsen

America faced questions like these during the period of our massive immigration, which was diluting the political power of our original British, Protestant settlers with millions of Catholics and Jews from Ireland and Southern and Eastern Europe. After much trial and error, forged in part through the common experiences of the Great Depression and the Second World War, American identity morphed from that of a British-descended, Protestant country to one of the ‘melting pot’ where people from any background could come, so long as they adopted American values of decency, hard work, and devotion to political liberty.

It is possible that this identity can be updated to both include the new, secular or non-Christian American while maintaining the liberties and values of the older stock. But given the depth of the division and ferocity of the passions on display, it’s hard to see any sort of resolution coming soon.

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Adventures in Trumpland

By Ian Birrell