Politics & Stuff

[YorkshireBlue 3,307]

50 minutes ago, Vesper said:

burning a flag IS political speech

Does that make it right? Like these just stop oil idiots ruining art work and sports sitting in the middle of roads like mental fucking idiots? Are people that thick these days that these acts are considered as “political speech”? 

[Vesper 30,371]

Everything is terrorism in Trump’s America

Identifying faceless ICE agents. Mutual aid for jailed protesters. Calling JD Vance a fascist. The war on ‘antifa’ is a war on free speech, and it’s just getting started.

https://www.theverge.com/policy/790510/trump-fascism-antifa-soros-ice

https://archive.li/Nss7P

The Trump administration declared war on the “terrorist organization” of “antifa” and the supposed “networks” associated with it last week. Antifa is not so much a vast national conspiracy as it is simply an abbreviation for anti-fascism — but don’t point out that anti-anti-fascism looks a lot like fascism. That would make you antifa, too. The plain intent of the memo is to make Americans afraid to call fascism what it is — or worse, to say fascism is bad.

 

President Donald Trump first signed an executive order purporting to classify antifa as a domestic terrorist organization — a designation that doesn’t actually exist. This was followed by a national security presidential memorandum (NSPM) a few days later. According to the memo, calling things fascist “justif[ies] and encourage[s] acts of violent revolution,” which is why anti-fascism is terrorism, actually.

 

There is no such thing as a domestic terror group designation, or a federal domestic terrorism charge, which is part of what renders the executive order and memo so perplexing. That is lucky for Trump and his supporters, since a domestic terrorism charge might have applied to the violent insurrection on January 6th, 2021. But it is anti-fascism that is the problem, clearly.

 

This upside-down treatment of the English language is not novel. The George W. Bush administration coined such unforgettable phrases as “they hate our freedoms” and “enhanced interrogation techniques.” Historical authoritarian regimes repurposed words as part of their assault on collective social reality, a theme that George Orwell returned to many times in his works.

 

Trump’s anti-anti-fascism orders work similarly. They distort not just words like terrorism, violence, and fascism, but also the law, how the federal government is organized, and what the Constitution establishes as the foundational principles of this country. The orders do not make sense logically, they do not match up with reality, and they are not designed to be enacted effectively.

 

The current level of surveillance — both online and in real life — means that it is easier than ever for the government to blacklist people for speech. Any reasonably intelligent person can read past the Trumpist doublespeak and euphemisms. The White House has issued a naked threat, attempting to use right-wing agitator Charlie Kirk’s death as a pretext to reenact the excesses of the post-9/11 Patriot Act and more — to leverage the government’s sophisticated surveillance apparatus, its many forms of legal exceptionalism, and its punitive controls on financial activity when it comes to international terror groups. The Trump regime will watch the internet and punish wrongthink. It also now has an excuse to put jackboots on American soil.

 

On Saturday morning, two days after his memo, Trump purported to have sent “troops” into Portland, a city that is specifically named in the NSPM; Portland leaders have confirmed a “sudden influx” while urging residents to stay calm. He also proposed that American cities be used as training grounds for America’s military. “We’re going into Chicago very soon,” he added.

 

Portland will not be the only victim — or even the primary victim — of the war on antifa, which is part of a larger war against the freedom of speech. Antifa, as described in the NSPM, is both everything and nothing. It is in forums and social media and in-person meetings. It is in educational organizations and nonprofit institutions. It is protests (“riots”) not just in Portland, but in Los Angeles as well, whether against Trump’s immigration policies or, separately, “anti-police and ‘criminal justice’ riots.” It is the doxxing of masked and armed ICE agents. It is the “rhetoric” on the bullets alleged to be engraved by Charlie Kirk’s killer — referring, it seems, to an unused bullet casing with a video game button combo on it.

 

So antifa could be a kid in a black mask tossing a brick at a CCTV camera at an ICE facility. Antifa could be the grandma on the sidewalk holding a sign reading “DONALD TRUMP IS A FASCIST.” Antifa is ACAB. Antifa is Fuck ICE. Antifa is No Kings. Antifa might be a reading group, a teach-in, an Instagram solicitation for mutual aid. Antifa could be the ICEBlock app, and the App Store could be providing material support for terrorism.

 

While it is tempting to believe that the war on antifa is just more Trumpist bluster — sound and fury signifying nothing — there are worrying signs that it is deadly serious. Take, for instance, this recent press release about Portland, Oregon: “The Radical Left’s reign of terror in Portland ends now, with President Donald J. Trump mobilizing federal resources to stop Antifa-led hellfire in its tracks.”

 

Law enforcement and experts have long emphasized that antifa is a decentralized movement. The Center for Strategic & International Studies (CSIS) said in 2021 that its “data do indicate a recent increase in violent activity by Antifa extremists, anarchists, and related far-left extremists,” but that this is “likely connected to the concurrent increase in violent far-right activity, particularly from white supremacists and others whose ideology anti-fascists actively oppose.” If there is a notable rise in anti-fascism, it may be because there is suddenly a whole lot of fascism.

 

At a meeting with military leaders, Trump emphasized that his ambitions for anti-anti-fascism encompassed more than just Portland. “We’re gonna straighten them out one by one,” he said. “This is gonna be a major part for some people in this room. That’s a war, too. It’s war from within.” If “war from within” feels familiar, well, “the enemy within” is a classic of authoritarianism.

 

This is all pretty clear: The president wants to turn the military loose on American civilians. Having merged right-wing terror with the Republican Party, the government is now attempting a purge of anyone Trump deems an enemy.

 

A national security presidential memorandum is neither a statute nor an executive order. It is instead a directive setting priorities for agencies such as the FBI, the DOJ, and the Treasury Department. This one calls for the Joint Terrorism Task Forces (JTTFs) to rally against the ill-defined “antifa” threat, directing agencies to investigate individuals, organizations and their donors, “illicit funding streams,” and nonprofits with tax-exempt status.

 

What the DOJ and the FBI ultimately do with the memo could usher in a chapter of American history that makes the McCarthy era look like amateur hour. But there are many steps to get to that ugly future.

 

According to the memorandum, antifa’s “common threads” include “hostility towards those who hold traditional American views on family, religion, and morality.” Antifa is also described as being animated by “anti-Americanism, anti-capitalism, and anti-Christianity,” and holding extremist views “on migration, race, and gender.” These ideological threads, it claims, are at the root of political violence in America, and must be thoroughly investigated and countered.

 

What is anti-Americanism, one might ask? Well, it would be the negative portrayal of “foundational American principles” like “support for law enforcement and border control,” two “principles” that are somehow neglected in the Federalist Papers.

 

The Attorney General has been directed to prioritize “politically motivated terrorist acts such as organized doxing campaigns, swatting, rioting, looting, trespass, assault, destruction of property, threats of violence, and civil disorder.” This list of “terrorist acts” is alarming even before you remember that the mayor of Newark was arrested for “trespassing” on an ICE facility. Further into the memo, the president cites the statute for obstructing arrest by federal law enforcement, the same charge previously levied at New York City Comptroller and former mayoral candidate Brad Lander.

 

Forget about the deployment of feds to Portland for a moment — after all, the deployments in Los Angeles and Washington, DC, predate this newest excuse to use military force against the populace. While his failed occupation of Portland in 2020 might still be top of mind for Trump, his more mentally deft handlers — like Stephen Miller and JD Vance — understand the immediate devastation they can wreak with the parts of the memo that are about money: IRS investigations, financial institutions’ Suspicious Activity Reports (SARs), and statutes prohibiting “material support” for terrorism. (Given that there is no such thing as a domestic terrorism designation, the legal basis for using these tools becomes murky — not that that sort of thing seems to bother this administration.)

 

The first financial target appears to be George Soros, who Trump called “a likely candidate” for investigation. Soros, the billionaire Trump has previously threatened to jail, began a network called the Open Society Foundations to distribute money for human rights and pro-democracy groups. (Soros is also unpopular with Russia’s Vladimir Putin, who views pro-democracy charities as political threats.)

 

Two weeks ago, on a memorial episode of Charlie Kirk’s podcast with presidential puppeteer Miller, Vance drew a line to Kirk’s slaying, promising “to go after the NGO network that foments, facilitates, and engages in violence.”

“We are going to channel all of the anger that we have over the organized campaign that led to this assassination, to uproot and dismantle these terrorist networks,” Miller responded.

 

On Thursday, as the president signed the memorandum, Miller repeated much of what he had said on the podcast. “For the first time in history there is an all-government effort to dismantle left-wing, to dismantle Antifa, to dismantle the organizations that have been carrying out these acts of political violence and terrorism,” he said, while standing next to FBI head Kash Patel, who appeared to be in some kind of dissociative fugue. Miller went on to rail against “the riots that started with Black Lives Matter” and “the attacks on ICE officers,” claiming they were part of a larger, elaborate plot. “It is structured. It is sophisticated. It is well funded. It is well planned.”

 

The same day, The New York Times reported that a senior DOJ official had “instructed more than a half dozen U.S. attorney’s offices to draft plans to investigate” Soros’ Open Society Foundations. Soros is a popular target for right-wing conspiracy theorists, but they likely won’t stop there. But any cursory look at domestic terrorism in the last 30 years, and especially the last 10, will suggest the real problem was, and remains, the political right.

 

The modern era of political violence started with Timothy McVeigh. McVeigh’s 1995 Oklahoma City bombing, a crime explicitly motivated by white supremacism, came as a shock to America. No act of domestic terror since McVeigh has been as deadly, but right-wing violence has increased in frequency — so much so that America has become numb to it.

 

Anyone who has been paying attention for the last 10 years understands perfectly well that the country is convulsed by an epidemic of domestic terrorism, with right-wing terrorism comprising the majority of attacks. From the white supremacist 2015 Charleston church shooting to the car that rammed counter-protesters at the 2017 Unite the Right Rally to the 2019 El Paso Walmart killings that were motivated by the “great replacement” theory, right-wing extremism has an immense body count.

 

Left-wing terrorism is creeping upward, a recent CSIS report claims. But even that report is clear: From 2011 to 2024, there were 20 right-wing terror attacks a year. By contrast, the number of left-wing incidents per year rose in 2016 through 2024 to four. The body count is even more damning — 112 people killed by right-wing terror, eight times as many as by left-wing incidents.

 

Although there is a complex legal regime around what is described as international terrorism, “domestic terrorism” is, in the federal legal sense, little more than an empty phrase. It is mentioned in the USA PATRIOT Act, but without specific repercussions attached. There is no domestic equivalent for the State Department’s Foreign Terrorist Organization (FTO) list. The FTO list also is part of a separate, even broader list maintained by the Office of Foreign Assets Control (OFAC) under the Treasury Department — but as OFAC’s name implies, it is not really intended to be a tool against domestic terrorism.

 

The United States has a vast array of robust (and constitutionally questionable) enforcement mechanisms when it comes to combating and prosecuting international terror, from advanced surveillance regimes to laws barring “material support.” In comparison, it is anemic when it comes to domestic terror. This is no accident. Long before MAGA was but a twinkle in Trump’s eye, Republicans were systematically undermining attempts to address right-wing extremism.

 

In 2009, the Department of Homeland Security issued a dire warning: right-wing radical groups, including white supremacist groups, were using the dismal economy alongside the election of the first Black president to recruit new members. The nine-page report that warned about right-wing extremism kicked off a furious Republican backlash. The sturm und drang forced Janet Napolitano to rescind the report and roll back the DHS’s efforts in monitoring right-wing extremism.

 

In 2013, a controversy around IRS scrutiny of right-wing groups seeking 501(c) tax designations ended with an apology and, in 2017, a settlement. That same year, 501(c)(3)s like Identity Evropa were associated with the Unite the Right rally in Charlottesville, Virginia, where Heather Heyer was killed.

 

Even laughably modest attempts at countering domestic right-wing terror have been rolled back. For example, government grants to organizations that rehabilitate those who want to leave neo-Nazi or white supremacist groups were revoked during Trump’s first term in office.

That said, the threat to civil liberties posed by anti-terrorism initiatives is far from theoretical.

 

The war against what is described as “international” terrorism has enveloped the American Muslim community in a nightmare of surveillance, infiltration, and fear. Community gatherings are subject to wiretapping and FBI agitators. Charitable giving has become a minefield that can result in nonprofits being dissolved and well-meaning donors becoming legally liable, thanks to the Treasury Department’s “virtually unchecked power to designate groups as terrorist organizations.”

 

The first Trump administration started with the Muslim ban and ended with January 6th, an insurrection against the foundation of American democracy itself. Even as Congress convened to certify the results of the 2020 election, a right-wing crowd that included organized groups of extremists gathered to support Donald Trump at a Stop the Steal rally. They constructed a gallows and chanted “Hang Mike Pence.” The crowd surged into the Capitol building, smashing through doors and windows, as the vice president was rushed to an underground bunker.

 

This was an attack on a symbol of democracy, on the legislative body that most directly represents the people. Its aim was to invalidate an election by force. “We all look like domestic terrorists now,” one White House aide texted in the immediate aftermath.

Although many violent January 6th participants were prosecuted, no terrorism charges were brought — after all, there was no such thing as a federal domestic terrorism charge.

 

Some of the insurrectionists were later convicted, but the overall event was legitimized by the Republican Party. What’s more, those who were convicted were pardoned by Trump when he returned to office, unavoidably marrying political violence to the political system.

---

The day after the NSPM was published, right-wing rag the Daily Caller ran a column headlined “Enough is enough! I choose violence.” In the editorial, editor-at-large Geoffrey Ingersoll writes, “Today, I choose violence. Literally. I know calls for violence are generally frowned upon. The issue is … I simply don’t care.”

 

Ingersoll goes on to describe his fantasies of “hospitalizing” a “fat black lady,” a female activist getting “instantly clotheslined,” and indictments of his political enemies list, which includes Anthony Fauci, Ilhan Omar, Alexandria Ocasio-Cortez, Barack Obama, and “everyone in Clinton world” and “Biden world,” too. The goal is not even to jail these enemies, just to put them through a legal process that “absolutely ruins them.” “I want blood in the streets,” he writes.

 

The Daily Caller’s editor-in-chief told The New York Times that to characterize this column as a call for political violence is “totally dishonest.” Very well, then. Let’s call it a clear and accurate picture of Trumpism — one the Daily Caller felt safe enough to print because its editors know, just like the rest of us, that punishment is only for the people the Trump administration dislikes.

 

Ingersoll’s calls for violence are in line with the official Republican position. John Gillette, a Republican state representative for Arizona, called for Rep. Pramila Jayapal (D-WA) to be hanged on his X account. Two Kansas Republicans alluded to — “joked” — about shooting a former Democratic colleague on the floor of the Kansas House.

 

Louisiana Republican Clay Higgins threatened to jail the mayor of Denver, while Florida Rep. Anna Paulina Luna threatened to refer him for criminal charges. Arizona Republican Paul Gosar shared an anime video depicting him killing Ocasio-Cortez and attacking then-President Joe Biden.

 

Denaturalization is another favorite Republican threat. Republican Andy Ogles of Tennessee said that New York mayoral candidate Zohran Mamdani should be stripped of his citizenship and deported; Ogles later demanded the same for Rep. Delia Ramirez of Illinois. Texas Republican Brandon Gill, Georgia Republican Marjorie Taylor Greene, and South Carolina Republican Nancy Mace have called for Minnesota Rep. Ilhan Omar, a naturalized US citizen, to be deported.

 

Criticizing the unidentified masked men kidnapping people off the street in broad daylight is “blood libel,” as Vance puts it. But calling for the assault, even to the point of hospitalization, of political opponents is just “strongly-worded opinions,” as the editor’s note atop Ingersoll’s column reads.

 

As for threats to elected Democrats from elected Republicans, that’s just politics as usual. So as people — including a Des Moines, Iowa, school superintendent — are vanished by secret police, Americans are told that left-wing terrorism is the real problem. Political violence happens because the left “dehumanizes” the right, they say, while the White House posts Pokémon deportation memes.

 

It is of course helpful to remember that in the Trump regime, every accusation is a confession. Antifa might not be organized, but the Department of Homeland Security sure is. George Soros might not be paying professional protesters, but right-wing media personalities are bankrolled by Trumpist billionaires.

 

In the case of Ben Shapiro, that’s billionaires Dan and Farris Wilks; for Rumble, thank Peter Thiel. This is to say nothing of Rupert Murdoch’s Fox News, or Elon Musk’s X, or the Daily Caller itself, which is funded by Charles Koch.

Indeed, the memo’s description of the environment that leads to terroristic violence applies cleanly to the entire right-wing ecosystem. But perhaps the most striking accusation-as-confession is this paragraph from the national security presidential memorandum:

This political violence is not a series of isolated incidents and does not emerge organically. Instead, it is a culmination of sophisticated, organized campaigns of targeted intimidation, radicalization, threats, and violence designed to silence opposing speech, limit political activity, change or direct policy outcomes, and prevent the functioning of a democratic society.

What is this but an elegant encapsulation of the past 10 years? It describes everything from the removal of Jimmy Kimmel from the air to the Libs of TikTok pattern of incitement to Charlie Kirk’s Professor Watchlist to Fox News’ defamation of Dominion Voting Systems and its employees to the celebrity worship of people like Kyle Rittenhouse.

 

What is this entire anti-terrorism memorandum if not an admission that terrorism works, and that terrorism has secured the White House?

---

Trump’s national security memorandum reads like some serious bullshit — but then, mass deportation sounded pretty fucking stupid, too. The Trump administration simply does not have the capacity to enact mass deportation at scale; nevertheless, even ineffective mass deportation means a plague of faceless ICE agents spiriting people away to inhumane detention centers while the administration’s closest allies gleefully shitpost about “Alligator Alcatraz.” 

 

The antifa that Trump imagines might not exist, but that doesn’t mean a war on antifa won’t have serious and devastating effects not just on real people but on the future of democracy itself.

 

Those who oppose Trump do have one thing going for them — his administration has the most delicate of glass jaws. After Brendan Carr’s barely veiled threat to pull ABC’s licenses unless the broadcaster suspended late-night host Jimmy Kimmel, the Disney-owned network suspended Kimmel.

 

A broad public backlash led to his reinstatement, and Kimmel returned in a highly rated monologue-only episode taking aim at Carr. Though Nexstar and Sinclair — two companies that operate ABC affiliates — blacked out Kimmel at first, even they backed down by the end of the week.

 

The most significant battles that the Trump regime has won have been against corporations, institutions, billionaires, and elites — the “chickenshit,” in journalist Adam Serwer’s words, worse than mere cowards. “Acts of cowardice can be provoked by genuine danger — think of a deserting soldier fleeing the peril of the battlefield,” he writes. “When you’re chickenshit, you capitulate to avoid the mere possibility of discomfort, let alone something resembling real risk.”

 

When faced with the mass fury of ordinary, everyday people, Disney — a corporate juggernaut which functionally owns the hearts and minds of the nation’s children — suddenly recovered something resembling a spine and allowed Kimmel to come back. It is ordinary people, as Serwer points out, who have shown the most bravery and resilience in the face of authoritarianism. We are surrounded, one might say, by everyday anti-fascists. It is one of the reasons antifa is not actually organized; in America, as in many countries around the world, it doesn’t have to be.

 

So Stephen Miller is targeting the most pliable among us: the billionaire set. Scaring Soros and NGOs isn’t just an easy sop to the Republicans’ conspiracy-addled base — it’s also revealing. The right cannot imagine that politics could still flourish without money.

 

The idea is to scare people out of protesting in the streets, because protesting in the streets hurts the president’s feelings. The wave of doxxing following Charlie Kirk’s death, which was supported by the vice president, was meant to silence people on social media — to prevent them from posting their political beliefs lest they lose their jobs.

 

The Trump administration is issuing this highly questionable memo because not even masked thugs snatching people off the streets could quiet the opposition. The deployment of soldiers with guns into American cities didn’t stop the protests against Trump — indeed, one fed got the privilege of wearing a sandwich for his trouble.

 

When the Trump regime attempted to frighten other protesters by trying to stick Sean Charles Dunn with a felony assault charge for throwing that sandwich, the grand jury refused to indict. The memo is an attempt to terrorize the American people, and the terrorists are doing this because they have not yet won.

 

 

 

 

[Vesper 30,371]

14 minutes ago, Fernando said:

Well I gave you my opinion. 

you switch, post to post, from what you state is merely your opinion (which you are utterly free to have) to actual pronouncements on what is legal or not

you act like they are one and the same

that is textbook sophistry

(and is mirroring the want-to-be king Trump)

[Fernando 6,612]

5 minutes ago, Vesper said:

you switch, post to post, from what you state is merely your opinion (which you are utterly free to have) to actual pronouncements on what is legal or not

you act like they are one and the same

that is textbook sophistry

(and is mirroring the want-to-be king Trump)

Nope I gave my opinion of why it should be illegal to burn the flag. 

But if the supreme court has a ruling then there's nothing we can do, and if Trump does it now he is breaking the law. 

I agree with what he said but he would need it to bring to the court to me modified. Just like they did with abortion. 

 

 

Edited Sunday at 17:35 by Fernando

[Vesper 30,371]

5 minutes ago, Fernando said:

I agree with what he said

thus you are foundationally against freedom of speech

as regardless of anything else that can be said, burning the flag IS political speech

that is not up for any legitimate debate whatsoever, no matter how much you try and deny it

[Fernando 6,612]

Just now, Vesper said:

thus you are foundationally against freedom of speech

as regardless of anything else that can be said, burning the flag IS political speech

that is not up for any legitimate debate whatsoever, no matter how much you try and deny it

Well we will have to wait and see if the supreme court ever decides to take up that matter with the input of Trump and company because as you alluded they make the law. 

[YorkshireBlue 3,307]

9 minutes ago, Vesper said:

as regardless of anything else that can be said, burning the flag IS political speech

Free speech is bull shit, there is no such thing as free speech, you cannot say what u want these days, and i agree burning a flag is a disgrace, political or not if i caught some one burning an England flag id be putting the fire out with their head, oh wait they/them head because im not allowed to say if any one is a man or a woman any more without offending an entire set of nut balls, free speech eh 😂

Edited Sunday at 17:54 by YorkshireBlue

[Vesper 30,371]

27 minutes ago, YorkshireBlue said:

Does that make it right? Like these just stop oil idiots ruining art work and sports sitting in the middle of roads like mental fucking idiots? Are people that thick these days that these acts are considered as “political speech”? 

Whether it is right or wrong is an opinion and not a determination of whether or not it is political speech.

I also remind you of Evelyn Beatrice Hall's words (discussing Voltaire's views on free speech) from her 1906, London-published, book The Friends of Voltaire:

'I disapprove of what you say, but I will defend to the death your right to say it.'

[Vesper 30,371]

2 minutes ago, YorkshireBlue said:

Free speech is bull shit, there is no such thing as free speech

good to know where you stand

thankfully you do not have the legal nor political power to try and enforce that horrid stance

[YorkshireBlue 3,307]

2 minutes ago, Vesper said:

good to know where you stand

thankfully you do not have the legal nor political power to try and enforce that horrid stance

Nor would I want it, politicians are down there with dog shit and parking wardens and two tier kier is even further down than that, infact fuck it yeah free speech exists, next time some one says something you don’t like or agree with I suggest you remember this, their right to free speech beats your own right to be offended.

[YorkshireBlue 3,307]

13 minutes ago, Vesper said:

Whether it is right or wrong is an opinion and not a determination of whether or not it is political speech.

I also remind you of Evelyn Beatrice Hall's words (discussing Voltaire's views on free speech) from her 1906, London-published, book The Friends of Voltaire:

'I disapprove of what you say, but I will defend to the death your right to say it.'

Who’s determined the fact burning a flag is political speech? Wonder if brits took to the streets of London burning Palestine flags anything would be done about it? Again act of political free speech right? But we both know they would be arrested and jailed 

[Vesper 30,371]

10 minutes ago, YorkshireBlue said:

Who’s determined the fact burning a flag is political speech?

by its very nature it is poltical speech, unless it is the method of disposal of an older, damaged flag (which of course, is not what is under discussion)

[Fernando 6,612]

50 minutes ago, Vesper said:

by its very nature it is poltical speech, unless it is the method of disposal of an older, damaged flag (which of course, is not what is under discussion)

United States v. Eichman (1990) was a Supreme Court case that struck down the Flag Protection Act of 1989, a federal law that criminalized flag desecration. The Court ruled 5-4 that the Act violated the First Amendment's guarantee of free expression, finding that the government's interest in protecting the flag was related to the suppression of free expression and the content of that expression. This decision reaffirmed the Court's earlier ruling in Texas v. Johnson (1989), which also found flag burning to be a protected form of symbolic speech. 

Background 

 

• The Flag Protection Act of 1989: 

  In response to the Texas v. Johnson decision, Congress passed the Flag Protection Act, which made it illegal to destroy or deface an American flag.
• The Protests: 

  The case involved individuals who burned U.S. flags on the steps of the U.S. Capitol to protest government policies.

The Supreme Court's Decision

• First Amendment Violation: 

  The Court found that the Flag Protection Act was unconstitutional because it infringed on the First Amendment right to freedom of speech. 

   
• Content-Based Regulation: 

  The Court determined that the government's interest in protecting the flag was directly related to the suppression of expression and the content of that expression. 

   
• Strict Scrutiny: 

  Because the law was a content-based restriction on speech, it had to be subjected to strict scrutiny, a high legal standard that the government could not meet. 

   
• Reaffirmation of Texas v. Johnson: 

  The Court's decision in Eichman essentially reaffirmed its holding in Texas v. Johnson, confirming that flag burning is a form of symbolic speech protected by the First Amendment. 

   

Dissenting Opinions 

 

• Justices William H. Rehnquist, Byron R. White, John Paul Stevens, and Sandra Day O'Connor dissented, arguing that the law did not truly infringe on First Amendment rights and that there were many other ways for demonstrators to exercise their rights.

[Fernando 6,612]

I agree with the Dissenting Opinions. 

I wonder if they bring it up now with a larger conservative judges if they would change it. 

I'm in favor of changing this. 

[Vesper 30,371]

8 hours ago, Fernando said:

I agree with the Dissenting Opinions. 

I wonder if they bring it up now with a larger conservative judges if they would change it. 

I'm in favor of changing this. 

You would be instantly enraged if a left wing SCOTUS ruled that political speech that YOU favour was illegal and thus barred.

As is typical with many authoritarians (of any ideological type, but especially commonplace amongst the right), you exhibit a 'rules for thee but not for me' stance.

[Fernando 6,612]

6 hours ago, Vesper said:

You would be instantly enraged if a left wing SCOTUS ruled that political speech that YOU favour was illegal and thus barred.

As is typical with many authoritarians (of any ideological type, but especially commonplace amongst the right), you exhibit a 'rules for thee but not for me' stance.

Why you putting words on someone. 

Have you seen anyone protest on the streets about this recently? 

The ones that where enrage recently where the left that took to the street when the wade abortion was overthrown. 

And as you tipically do you think the right is the authoritarians all the time when the same happens with your leftist.

To me they are both of the same coin. They each try to play the high moral ground when in truth they each try to force you to believe their ideologies. 

 

Edited 16 hours ago by Fernando

[Vesper 30,371]

[Vesper 30,371]

[Vesper 30,371]

House of South Carolina Judge Criticized by Trump Administration Burns Down

Trump Administration’s targeting of judges is increasing

https://time.com/7323442/south-carolina-judge-diane-goodstein-house-fire-trump-political-violence/

Police are investigating the cause of a fire that burned down the home of South Carolina Circuit Court judge Diane Goodstein, who had reportedly received death threats for weeks related to her work.

State law enforcement is investigating the house fire on Edisto Beach, which began at around 11:30 a.m. E.T. on Saturday, sources told local news outlet FITSNews. Goodstein was reportedly not at home at the time of the fire, but at least three members of her family, including her husband, former Democratic state senator Arnold Goodstein, and their son, have been hospitalized with serious injuries.

According to the St. Paul’s Fire District, which responded to the scene, the occupants had to be rescued via kayak. Law enforcement has not disclosed whether the fire is being investigated as an arson attack.

“At this time, we do not know whether the fire was accidental or arson. Until that determination is made, [State Law Enforcement Division Chief Mark Keel] has alerted local law enforcement to provide extra patrols and security,” South Caroline Chief Justice John Kittredge told FITSNews, adding that the fire appeared to have been caused by an “explosion.”

The 69-year-old judge had received death threats in the weeks leading up to the fire, multiple sources told FITSNews. Last month, Goodstein had temporarily blocked the state’s election commission from releasing its voter files to the Department of Justice, a decision that was openly criticized by Assistant Attorney General for Civil Rights Harmeet Dhillon and later reversed by the state Supreme Court. The DOJ had sought the information, including names, addresses, driver’s license numbers, and social security numbers, of over three million registered voters as part of President Donald Trump’s March executive order restricting non-citizens from registering to vote. (Non-citizens are already not allowed to vote in federal and state elections.)

The Trump Administration has sought to drastically reshape the election system in the name of election integrity by requesting, and in some cases suing, states for voter registration data to compile a comprehensive centralized database. The administration has sought data from more than 30 states and has considered pursuing criminal investigations into state election officials. Critics have argued that the Administration’s efforts are an attempt at disenfranchising voters from marginalized communities and overstepping states’ constitutional authority to control election procedures.

If the fire at the judge’s house turns out to be targeted, it may mark the latest incident of a startling rise in political violence in the U.S. And while the Trump Administration has blamed the left’s rhetoric for inspiring violence such as the assassination of conservative activist Charlie Kirk, an attack on a judge would come as the Administration has increasingly vilified the judiciary, blasting judges that rule against it as “U.S.A-hating” insurrectionists.

Political violence on the rise

In addition to Kirk’s murder last month, the murder of Democratic Speaker of the Minnesota House of Representatives Melissa Hortman and her husband in June, and an arson attack at Democratic Pennsylvania Gov. Josh Shapiro’s residence in April, a number of judges who have ruled against Trump have also received attacks and threats from his supporters.

Chief Judge for the District of Rhode Island Jack McConnell told NPR in August that his court has received more than 400 threatening voicemails, including several credible death threats. McConnell had issued a ruling blocking Trump’s freeze on federal aid earlier this year. Judges told NPR that they have received unsolicited anonymous pizza deliveries, a tactic known as “pizza doxxing” that implies that the sender knows the judges’ addresses.

A White House spokesperson told NPR that attacks on public officials have “no place in our society,” noting the President’s own experience with assassination attempts last year.

“I’m hearing everywhere that judges are worried about their own safety. There are people who are inflamed by the incendiary comments of our president and members of Congress about judges. Public officials have legitimized attacks on judges with whom they disagree,” Nancy Gertner, a former judge and current professor of practice at Harvard, told the Guardian in May.

That month, Richard Durbin, top Democrat on the Senate judiciary committee, penned a letter to Bondi and FBI Director Kash Patel requesting an investigation into “pizza doxxing” incidents against at least a dozen judges.

“Threats against judges are threats against constitutional government. Everyone should be taking this seriously,” New York Judge Richard Sullivan, a Trump first-term appointee, told the Associated Press in March.

“This is a basic authoritarian instinct,” Steven Levitsky, a political scientist at Harvard University and coauthor of How Democracies Die, told the AP. “You cannot have a democracy where the elected government can do whatever it wants.”

Trump Administration’s targeting of judges

Less than a year into his second presidential term, Trump has asserted an expansive view of his executive powers. As of October, Trump has issued over 300 orders, proclamations, and memoranda, many of which have resulted in thorny and protracted legal battles. Between May 1 and June 23, federal district courts blocked Trump’s actions with temporary restraining orders or preliminary injunctions around 94% of the time, according to data analyzed by Adam Bonica, an associate professor of political science at Stanford University, while the Supreme Court reversed those orders in close to 94% of its cases. Critics have said that the sheer amount of litigation, some of which has been brought or appealed by the Trump Administration, could overwhelm the judiciary.

“What President Trump has done, perhaps more than other presidents, has been to not only bring the test cases and force the courts to deal with these issues, but to do it in a shock and awe strategy, which puts additional stress on the courts,” Steven Richman, Chair of the IBA Bar Issues Commission, told podcast Global Insight, speaking in a personal capacity. “Test cases are one thing, but as in any litigation involving parties and lawyers on both sides, the facts and positions taken must satisfy rules of professional ethics in terms of not being frivolous.”

Others have said the bigger threat comes from Trump officials attacking judges that rule against the Administration. Trump and his allies have also sought to portray the judiciary and their decisions as politicized and “judicial overreach.”

Hours before the fire at Goodstein’s house, Trump’s deputy chief of staff Stephen Miller accused U.S. District Judge Karin Immergut of “legal insurrection” for granting a restraining order that blocks Trump’s deployment of the Oregon National Guard in Portland. California Gov. Gavin Newsom, a Democrat, said in a post from his office that Miller’s accusation “for ruling on a case isn’t just reckless. It’s authoritarian propaganda, plain and simple.” (Miller has previously accused Democrats of using incendiary language to “mark people” for political violence.)

Trump has called specific judges who have pushed back on his executive orders “radical left lunatic” and “troublemaker and agitator.” In May, White House Press Secretary Karoline Leavitt called the panel of judges that ruled against Trump’s sweeping tariffs “activist judges.” In a post that month, Miller said, “We are living under a judicial tyranny.”

Miller posted on X in March, “Under the precedents now being established by radical rogue judges, a district court in Hawaii could enjoin troop movements in Iraq. Judges have no authority to administer the executive branch. Or to nullify the results of a national election.”

“Another day, another judge unilaterally deciding policy for the whole country. This time to benefit foreign gang members,” Republican Chuck Grassley, chairman of the Senate Judiciary Committee, posted in March after a Washington judge temporarily barred Trump from carrying out mass deportations. “If the Supreme Court or Congress doesn’t fix, we’re headed towards a constitutional crisis.”

In April, Attorney General Pam Bondi called the swathe of lawsuits filed against White House actions a “constitutional crisis.”

“President Trump’s executive authority has been undermined since the first hours of his presidency by an endless barrage of injunctions designed to halt his agenda,” she said in June.

Republican House Speaker Mike Johnson asserted congressional authority over U.S. courts, and appeared in March to threaten to disempower district courts if it came down to it. “We do have the authority over the federal courts, as you know. We can eliminate an entire district court,” Johnson said. “We have power of funding over the courts and all these other things. But desperate times call for desperate measures, and Congress is going to act.”

But the Administration has also gone beyond verbally criticizing the courts. The Justice Department in Trump’s second term has moved to prosecute several of his perceived enemies and judges that have pushed back on his political agenda. In April, Hannah Dugan, a Wisconsin judge, was arrested for allegedly aiding an undocumented immigrant to leave a courthouse. In July, the DOJ filed a misconduct complaint against James Boasberg, chief judge of the U.S. District Court in Washington, D.C., over alleged comments Boasberg made at a meeting of judges in March. In a social media post, Trump called for Boasberg, without naming him, to be impeached: “This judge, like many of the Crooked Judges' I am forced to appear before, should be IMPEACHED!!!”

The Administration has disregarded court orders, including plowing ahead with deporting 238 Venezuelans to an El Salvador prison in March after Boasberg blocked the deportations. A Washington Post examination of 165 lawsuits in which judges ruled against the Trump Administration found “widespread noncompliance with America’s legal system” by the Administration. The White House is accused of “defying or frustrating court oversight” in nearly 35% of those cases. Nonprofit media outlet Truthout reported in June that the Trump Administration also appeared to have defied a federal court order allowing transgender people to update gender markers on their passports.

“Lawyers are a regulated profession,” Dana Gold of the Government Accountability Project in Washington, D.C., told Global Insight. “The Department of Justice is inherently the bastion where the rules of professional conduct play a meta role because they are supposed to be serving justice.”

“If the Department of Justice is willing to bend, to basically break its own rules of professional conduct, it’s a red line being crossed,” she added.

More than 150 ex-federal and state judges in May signed a letter to Bondi and Patel rebuking the Administration’s attacks on the judiciary, as critics have said that the Trump Administration’s rhetoric fuels broader threats against judges.

“What we need is our political leaders from the top down to stop fanning these flames, to stop using irresponsible rhetoric, to stop referring to judges as corrupt and biased and monsters that hate America,” Esther Salas, a federal judge in New Jersey whose son was killed in 2020 by an attorney pretending to be delivering pizza, told NPR.

[Vesper 30,371]

The “Dual State” Theory Was Invented to Describe Nazis. The US Supreme Court Could Take Us There.

Authoritarianism—but make it look like the rule of law.

https://www.motherjones.com/politics/2025/10/dual-state-supreme-court/

Perhaps the most brazenly illegal action of President Donald Trump’s second term so far took place on his first day in office: an order to deny birthright citizenship to thousands of newborns. Within months, the question had reached the Supreme Court. But rather than affirm the right to birthright citizenship, which is plainly enshrined in the Constitution, the high court used the case to strip lower courts of the ability to issue nationwide emergency relief in most cases—now only those who sue can get reprieve. Instead of halting the administration’s lawless action, the justices made it easier for Trump to get away with future illegal abuses. 

The ‘dual state’ framework explains how a dictator can exercise power while life appears mostly ordinary.

In her dissent, Justice Ketanji Brown Jackson accused the majority of facilitating a two-track system of justice: One for those with the resources to challenge illegal actions, and a second where those without recourse are subjected to the president’s illegal whims. “The law-free zone that results from this Court’s near elimination of universal injunctions is not an unfamiliar archetype,” Jackson wrote. It is, she added, “eerily echoing history’s horrors” that “the zone of lawlessness the majority has now authorized will disproportionately impact the poor, the uneducated, and the unpopular.”

To eliminate any doubt about which historic “horrors” she had in mind, Jackson included a footnote citing Ernst Fraenkel, a Jewish labor lawyer who observed the transformation of the German legal system under Adolf Hitler. When Fraenkel fled Berlin in 1938, he smuggled out a manuscript on the legal mechanisms of Nazi authoritarianism. He eventually came to the University of Chicago and in 1941 published The Dual State: A Contribution to the Theory of Dictatorship. Fraenkel’s work has seen a resurgence of interest in the United States in recent months because it provides a framework for a phenomenon we are increasingly experiencing under the second Trump administration: How a dictator can exercise unfettered power while life appears ordinary for most people. Or, as Jackson observed, how a “zone of lawlessness” can swallow some, while the rest go about their lives under the protection of the law.

In the Third Reich, Hitler’s will replaced German law. Whatever he wanted, he did. If anyone was perceived to threaten the Nazi project of a fascist ethno-state, no legal protection could save them. Fraenkel called this realm the “prerogative state.” But the broader legal system didn’t immediately crumble under arbitrary rule. To the contrary, the Nazis purposefully left some of the existing legal system intact in the 1930s and courts were allowed to function, particularly in areas of contracts and other economic concerns. This parallel “normative state,” Fraenkel observed, enabled Germany’s capitalist system to continue against the backdrop of an uninhibited regime. Most Germans generally lived in the law-bound normative state, while Jews and other disfavored people were victims of the arbitrary and violent prerogative state. The dual state is thus two-faced twice over: it is characterized by a bifurcation in the law, but also by the facade of normalcy obscuring the fact of an authoritarian state.

Life in the early months of Trump’s second presidency hews to this framework in important respects. How else to explain that most people enjoy a sense of normalcy while, for example, foreign students like Rümeysa Öztürk and green card holders like Mahmoud Khalil can be detained for their speech. Americans and immigrants alike can be terrorized by ICE, the federal government’s unleashed immigration force, if they speak Spanish, look nonwhite, or happen to be in the wrong place at the wrong time. The administration is sinking Venezuelan vessels and executing the civilians on board without any legal authorization—killings that look like war crimes or murder. The government demanded that Disney fire comedian Jimmy Kimmel as if the First Amendment didn’t exist. But at the same time, the Trump administration’s law-breaking in its war on immigrants, its crusade against dissent, its takeover of the machinery of the federal government, its unrestrained use of the military, have not cannibalized the broader legal system or society—at least not yet. 

While these actions augur the onset of a dual state, the Trump administration hasn’t gotten us to this point alone. The Supreme Court, with its Republican-appointed 6-3 majority, has been a crucial facilitator. When the court blesses the administration’s disregard for the law while maintaining the appearance that the law still rules, it is enabling a dual state. When Jackson made explicit reference to Fraenkel, she was sounding an alarm on the court’s role in the shift toward a dual state. As Evan Bernick, a constitutional law professor at Northern Illinois University College of Law, puts it: “The reality is that the court is adjusting the law to make place for arbitrary power.”

“The court is adjusting the law to make place for arbitrary power.”

With the Supreme Court beginning its next term this week, the question hanging in the air is whether the Republican-appointed majority will finally draw legal boundaries to fence in the president or, confronted with Trump’s demands for ever-increasing power, it will revise or abandon the law to accommodate him. The results could consolidate a dual state or, in the extreme, extend Trump’s leash so far that all Americans begin to feel the effects of his unbridled powers—the onset of an authoritarian state without the dual state’s pretense of normalcy.

In three major cases, the Supreme Court will be addressing a key feature of a dual state: the ability of the government to switch a person or entity from the normative state and the protection of the law to the prerogative state, where the laws do not apply. Emergency powers, like the ones Trump has cited in these cases, are a quintessential switch.

In November, the justices will hear oral arguments over Trump’s sweeping tariffs. In his first three months in office, Trump announced tariffs on dozens of countries. Tariffs are Congress’ bailiwick, but Trump claimed power to impose them under the 1977 International Emergency Economic Powers Act. That law gives presidents power to respond to “any unusual and extraordinary threat” from abroad, but does not explicitly name tariffs as an available tool. Citing the Roberts Court’s own recent precedents, the lower courts found that the president cannot unilaterally impose such a major policy—indeed, a policy that could hamstring both the United States and global economies. The question, as UC Berkeley Law Dean Erwin Chemerinsky wrote last month, is “Will the conservative justices adhere to what they have said and held recently, or will they just rubber stamp whatever Trump does?” 

The case will be an important signal of whether the United States is operating as a dual state. If the justices abandon their legal principles in order to give the president more power, but do so under the color of law, then they will be bowing to the prerogative state while maintaining the illusion of the normative state.

Though it is not currently on the court’s docket, the justices will likely have to confront the question of whether Trump can once again use the specter of an emergency—even a pretend one—to round up and deport people. Since March, Trump has claimed the power to invoke the Alien Enemies Act with the baseless assertion that Tren de Aragua is invading the United States. This case, if it reaches the Supreme Court, will similarly test the justices’ willingness to maintain the guardrails around presidential power or whether, when it comes to the president’s targets, the law suddenly does not apply.

The justices will also consider the president’s attempt to remove Lisa Cook from the Federal Reserve Board of Governors even though her position is protected from firing except for cause. Trump claims sufficient cause in allegations of mortgage fraud—allegations that are factually weak and unproven. If the court blesses this as sufficient for immediate removal, even as the dispute moves forward in the lower courts, it will have ultimately handed control of the Federal Reserve to the president, unlocking Trump’s ability to control interest rates and transform the Fed’s coffers into a personal slush fund. Worse, Trump could use the Fed to withhold access to the financial system to any entity or individual who crosses him. It’s hard to overstate the degree to which the entire economy could tumble into the prerogative state if Trump were to stack the Federal Reserve Board with loyalists.

Should the court hand Trump the unchecked power to declare emergencies, invasions, and causes for removal, it would give him a legal tool that can nullify the law he claims to be invoking. As Aziz Huq, a constitutional scholar at the University of Chicago explains, in a dual state, the high “court’s role is in creating affordances within the law that operate as off switches for the law… The classic example of that is the emergency powers article in the Weimar Constitution that was used to switch off the Weimar Constitution.” It’s lawlessness dressed up as law.

“There’s no explanation…that’s one of the frightening things about the shadow docket.”

The Supreme Court is also facilitating the creation of a dual state through its emergency or “shadow” docket, where the court issues decisions in cases it has taken up outside of its typical procedures. In the first nine months of Trump’s second term, the six Republican-appointed justices have issued weakly or unexplained orders via this docket that switched off legal constraints on the president. They’ve blessed Trump’s firings of federal officials—despite those firings being illegal—enabling Trump to take control of bodies that Congress created to be bipartisan and independent, and to hollow out other agencies beyond what the law allows. It used it to reinstate Trump’s ban on transgender service members in the military, greenlighting a policy unconstitutionally animated by disdain for a minority group. In the realm of immigration enforcement, a shadow docket decision allowed the administration to violate federal and international law to send immigrants to dangerous places like South Sudan, and sanctioned the administration’s policy of racially profiling people as part of its immigration enforcement toolkit, subjecting both citizens and immigrants alike to harassment and inhumane detainment. The court even used the shadow docket in the birthright citizenship case to stop the lower courts from issuing universal relief from these abuses. When Trump refused to spend $4 billion in foreign aid appropriated by Congress, the Supreme Court used the shadow docket to let him ignore the law and withhold the money—even though Congress is supposed to have the power of the purse. 

“A prerogative state situation is a situation where it seems like there’s this rule that should apply and require X—and then all of a sudden, it’s Y,” says Bernick. “The court says it’s Y and there’s no explanation that’s given. That is a dual state situation. And that’s one of the frightening things about the shadow docket.”

In The Dual State, Fraenkel recounts how the German courts allowed landlords to stop renting to Jews in the 1930s, even though tenancy laws protected Jewish and Aryan renters alike. “The courts therefore had to choose between doing their duty and applying the law for the protection of the defenseless victim or sacrificing justice to the demands of National-Socialism,” Fraenkel wrote. Initially, courts protected Jewish renters. But after the Nazi press criticized those decisions, the courts changed their tune—not by reinterpreting the law, but by forgoing with the business of law entirely; a decision Fraenkel cites from the Appellate Court of Berlin held that the “question before the court is not a problem of the law of landlord and tenant, but a question involving a fundamental outlook on life.” In complying with the Third Reich, the courts elevated Nazi policies, as Fraenkel put it, “above the laws.” 

It’s hard not to see echoes of this in the court’s current use of the shadow docket. Often, the court’s orders, issued with little or no explanation, don’t even attempt to find justification in the law. The law appears ignored. Take the decision last month to permit ICE officers to racially profile people who don’t look white. After years of decrying any state use of race to differentiate between people, the court allowed ICE to use race without any explanation. Only Justice Brett Kavanaugh attempted a justification, though it was the legal equivalent of swiss cheese. 

“ICE is the face of a prerogative state, emerging or actual: It swoops in, it ignores safeguards, you can’t escape it,” says Bernick. “A Supreme Court that gets out of the way in that context, where the state is at its most brutal, and tries to manage everything else as normal, is a dual state Supreme Court.” 

The key to understanding the Supreme Court’s interest in creating a dual state—and how close the United States actually is to becoming one—is that the normative state is not truly a safe zone. While the dual state framework generally refers to the law-bound normative state and the lawless prerogative state, that doesn’t capture the dual state Fraenkel described.

Under the Nazis, the normative state proved to be a fiction. As much as the Nazis wanted to use the courts to preserve the country’s capitalist economy, they would never be constrained by them. “Where the Prerogative State does not require jurisdiction, the Normative State is allowed to function,” Fraenkel wrote. “The limits of the Prerogative State are not imposed from the outside; they are imposed by the Prerogative State itself.”

Republican appointed justices prefer a hidden authoritarianism to one that is out in the open.

In such a dual state, the normative state remains a useful illusion, but it is not truly bound by the rule of law. Huq, who is working on a book about Fraenkel’s theory and today’s United States, suggests that Fraenkel thought of the prerogative state as something like a black hole: “It’s this void, but it’s a void that exerts a gravitational pull on everything around it. So there’s this constant distortion of what he calls the normative state. And there are these moments where some piece of the normative state just gets collapsed and blown away.”

As long as there are actual limits, a real safe zone, the United States is not a Fraenkelian dual state. Öztürk and Khalil were eventually released from detention on judges’ orders, while Kilmar Abrego Garcia, whom the administration deported in violation of a court order and then claimed it did not have to retrieve him, did finally bring him back. While these are signals that a true dual state hasn’t yet arrived, their situations remain touch-and-go, with the administration still attempting to deport Khalil and Abrego Garcia to farflung nations. Similarly, insofar as the Supreme Court actually is a critical facilitator of Donald Trump’s increasingly unfettered power—which would also mean it retains its authority to limit the administration’s actions—then Trump has not succeeded in creating a true prerogative state. 

However, the justices appear to have a keen understanding, possibly intuitive, of Fraenkel’s dual state theory. In recent months, the court’s Republican wing has let Trump opt out of following the law virtually every time Trump has asked the justices for a hall pass. Covetous of their authority, this improbable winning streak—some 21 shadow docket cases—may actually signal the conservative justices’ unwillingness to cross him. They may realize that should Trump defy the court, it would mean that the court’s authority was, just as in Fraenkel’s world, an illusion of normalcy projected by the prerogative state to lull the masses into complacency. 

The Republican appointed justices, to the extent the United States has become a dual state, would rather stave off such a collapse, not least because their legitimacy and power relies on such a mirage. Thus, they prefer a hidden authoritarianism to one that is out in the open. And more than anyone else, the justices are in the position to paper over Trump’s lawlessness or expose it. But this is precisely why the dual state is so dangerous: It allows the would-be autocrat to consolidate power under the cloak of democracy and norms.

Clearly, the Republican appointees are not mere victims of Trump’s authoritarian aims. Their role in the creation of a dual state began before Trump’s second term. Kim Lane Scheppele, an expert on authoritarian regimes at Princeton, has documented the ascendance of “autocratic legalism,” a modern form of authoritarianism that uses existing laws and constitutions to ultimately subvert those guardrails and establish an autocratic state. To succeed, she notes, autocrats must inherit an already weakened democracy or first weaken it substantially; a robust democracy is much harder to conquer.

Any account of America’s sclerotal democracy must include the Supreme Court. As often happens in backsliding democracies, the US’ highest court has been captured by loyalists to the autocrat. Between 2017 and 2020, Trump appointed three Supreme Court justices when, under historical precedent, at least one if not two of those seats should have gone to the Democratic president who either preceded or succeeded him. In other words, the current court is the result of a partisan plot to seize power through court appointments, enabled by a president who took office without majority support. But even before those appointments, the Supreme Court under John Roberts—he has been its chief for 20 years—was already facilitating the US’s democratic decline. From voting rights to campaign finance, the Roberts Court has repeatedly interfered with the machinery of a healthy democracy. 

The Roberts court has given “the presidency the option, essentially, to opt out of statutory laws.”

A dual state is a legal artifice of authoritarianism, and under Chief Justice John Roberts, the Supreme Court inflated the powers of the president in case after case, as critics warned that the justices were paving the way to autocracy. The capstone in this progression was Roberts’ July 2024 opinion granting former presidents immunity from criminal prosecution for most official acts. “It’s basically saying Congress cannot constrain the President with criminal statutes,” Scheppele previously explained to Mother Jones. “So then why should Congress be able to constrain the President with appropriation statutes or anything else?” 

You can look at these Roberts court opinions building up to the immunity decision, says Huq, as giving “the presidency the option, essentially, to opt out of statutory laws.” The opinions created a dual state mechanism wherein the Constitution itself could be used to switch off the law when it comes to the president. In his book, Fraenkel defined the “principle of the inviolability of law” as meaning that “once the sovereign has promulgated a law, he may not violate it at his discretion” and explained that its abandonment is quintessential to the prerogative state: “The complete abolition of the inviolability of law is the chief characteristic of the Prerogative State.” It’s likely no accident that a year after Trump was given the unregulable power to launch sham prosecutions of political enemies, he is doing just that. 

Why would a dictator prefer a dual state to an overtly authoritarian regime? In Fraenkel’s telling, the normative state served the Nazis’ aims by maintaining an illusion of normalcy, especially in economics. Similarly, an American president with authoritarian ambitions would be more likely to realize them if people thought their lives wouldn’t be affected. The Republican wing of the Supreme Court has a self-interest in a dual state as well; without the illusion of the normative state, the justices’ are revealed to be pawns, not power brokers. Their authority would evaporate because it is based on the perception of the rule of law. But maintaining a stable dual state means that the prerogative state must hold itself back, particularly in when it comes to the economy—the black hole cannot grow too large.

The upcoming term contains key tests of whether this administration and this court can maintain the sort of dual state that reassures voters and financial markets. In May, the Supreme Court used the shadow docket to allow Trump to fire commissioners on the National Labor Relations Board and Merit Systems Protection Board, even though the law prohibited their removals. But in its order, the GOP appointees attempted to protect the similarly-situated Federal Reserve Board from Trump’s firing authority. “The Federal Reserve is a uniquely structured, quasi-private entity that follows in the distinct historical tradition of the First and Second Banks of the United States,” the opinion stated. That exemption isn’t actually grounded in any set of laws or precedents—and neither is the Fed board quasi-private. But the distinction’s utility in a dual state context is clear: hand Trump control of every other agency but reassure the markets by protecting the Fed. As Bernick put it, “It’s like the court is offering, ‘We’re going to help you. We’ll do this for you. And if you want to have a dual state, we’ll give it to you.’”

Unappeased, the administration is back before the court in the Lisa Cook case, again pushing it to hand Trump control of the Fed by allowing him to remove members for obviously pretextual “causes.” The dual state response would be to fashion a compromise in which the court both lets the administration remove Cook while also calming the markets by making it seem like a complete Trump takeover of the nation’s monetary policy is not about to happen. That balancing act may be impossible. “The paradox is that if the markets don’t believe you, because they see through it, then you don’t have a dual state,” says Bernick. “If it’s too transparent that what’s going on here is just capitulation to authoritarians who want to do whatever they want, then you don’t have the normative state. And then markets get spooked because they like the normative state.”

“You can read Fraenkel as a story of inevitability… The dual state eventually collapses.” 

The tariff case carries the same economic perils for the dual state—and the administration seems to know it. Its reassurances in its briefs in both cases that its positions will only help the economy are likely its own attempt to calm both the justices and the markets. Similarly, Trump’s decision in April to back off his most extreme tariffs when bond prices began to wobble signals that the administration is aware, at least on some level, that a takeover of the machinery of the economy is self-defeating. And yet, the desire to seize this power and quite likely wield it in aggressive and economically disastrous ways has been a feature of Trump’s second term. “You can read Fraenkel as a story of inevitability; going back to the black hole, at some point the prerogative state just sucks everything in,” says Huq. “That’s one version of the story, where the dual state eventually collapses into a single prerogative state.” 

Justice Jackson’s warning in the birthright citizenship case tries to halt the shift to authoritarianism before it is too late. In her dissent citing Fraenkel, she tells the public that the Republican appointees are not applying the law so much as clearing it out of Trump’s way. “To hear the majority tell it, this suit raises a mind-numbingly technical query” about the historical analogues to universal injunctions, she wrote. “But that legalese is a smokescreen. It obscures a far more basic question of enormous legal and practical significance: May a federal court in the United States of America order the Executive to follow the law?”

The dual state is dual in two respects: First, it divides the law into the prerogative and normative zones; next it uses the normative zone to create an illusion of normalcy to cover up an authoritarian reality. This “smokescreen” sustains the economy and fosters acceptance by the people until it’s too late. Jackson accuses her colleagues of creating this dual state on both tracks: first, by sanctioning a zone of lawlessness, and second, by pretending that doing so is business as usual. But, she warns, “Were courts unable or unwilling to command the Government to follow the law—they would ‘sanctio[n] a tyranny.’”

Jackson, in the court’s minority, cannot stop her colleagues from hastening this tyranny. But in her dissents, she can blow their cover.