tag:theconversation.com,2011:/fr/topics/us-supreme-court-5362/articlesUS Supreme Court – The Conversation2024-03-27T12:37:18Ztag:theconversation.com,2011:article/2263762024-03-27T12:37:18Z2024-03-27T12:37:18Z‘The Amazon of Sports’ has already cornered baseball’s apparel market – and is now on the verge of subsuming baseball cards, too<figure><img src="https://images.theconversation.com/files/584187/original/file-20240325-24-8sv22l.jpg?ixlib=rb-1.1.0&rect=30%2C7%2C5073%2C3638&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">The U.S. sports card industry is an estimated $12 billion market.</span> <span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/group-of-young-fans-hold-up-their-topps-baseball-cards-news-photo/830913124?adppopup=true">Mark Cunningham/MLB Photos via Getty Images</a></span></figcaption></figure><p>During spring training, Major League Baseball’s official uniform supplier, Fanatics, became a focal point for all the wrong reasons. </p>
<p>After arriving in Florida and Arizona, players began to complain about the quality of their new, Fanatics-manufactured uniforms. </p>
<p>One player for the Baltimore Orioles <a href="https://www.thebaltimorebanner.com/sports/orioles-mlb/orioles-players-slam-new-mlb-jerseys-like-a-knockoff-jersey-from-tj-maxx-DEXUP34CLNFNNEW3AMES56G6U4/">groused that the new uniforms looked</a> “like a knockoff jersey from T.J. Maxx.” Others were dismayed to learn that the white pants were transparent, with seams from tucked-in jerseys – <a href="https://twitter.com/JRoc23/status/1760930264828563621">and sometimes more than just seams</a> – visible to all.</p>
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<p>The spring training uniform fiasco has led to more scrutiny for Fanatics, a company that had, until recently, been widely considered an American success story. CEO Michael Rubin, a college dropout, grew Fanatics from a ski and snowboard business into what some now call “<a href="https://theathletic.com/3998333/2022/12/14/michael-rubin-business-sportsperson/">the Amazon of Sports</a>.” </p>
<p>Thanks to its connections with the leading U.S. sports leagues, Fanatics has quickly become the dominant player in nearly every aspect of the sports licensing industry. It manufactures and sells everything from team hats and T-shirts to logo-adorned <a href="https://www.fanatics.com/nhl/new-york-rangers/auto-accessories/new-york-rangers-wincraft-chrome-colored-license-plate-frame/o-4628+t-47598504+d-64881168+f-9585632+z-9-3053713359?">license plate frames</a> and <a href="https://www.fanatics.com/mlb/boston-red-sox/lawn-and-garden/boston-red-sox-bird-house/o-3432+t-92334186+d-75002380+f-539183674+z-9-1600955566?">birdhouses</a>.</p>
<p>But uniforms are not the only aspect of Fanatics’ licensing strategy that has elicited controversy. Over the past few years, <a href="https://sportscollectorsdigest.com/news/fanatics-sports-card-rights-reaction-mlb-nba-nfl-hobby">Fanatics has undertaken an aggressive campaign</a> to acquire the exclusive rights to produce the officially licensed sports trading cards for not only MLB but also the NFL and NBA. In some cases, these deals are set to run for as long as 20 years.</p>
<p>As we explain <a href="https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4739580">in a forthcoming article</a> in the University of Illinois Law Review, Fanatics’ consolidation of the sports card industry threatens to reduce the company’s incentive to innovate or invest in trading cards, risking a stagnant future for the hobby.</p>
<h2>Pro sports get exclusive</h2>
<p>In order to produce apparel or memorabilia featuring official team logos, manufacturers must secure the legal right to use the teams’ trademarks, the intellectual property that legally protects teams’ names and emblems. </p>
<p>The companies will typically acquire these legal rights by entering into contracts, called <a href="https://www.investopedia.com/terms/l/licensing-agreement.asp">licensing agreements</a>, with a particular sports league, giving the manufacturer the right to use all league and team logos on its products.</p>
<p>Historically, U.S. sports leagues have granted multiple companies these rights.</p>
<p>In recent years, however, leagues and manufacturers have tended to favor <a href="https://www.law.cornell.edu/wex/exclusive_license">exclusive licenses</a> – agreements that ensure that only a single company will have the right to use the league’s trademarks on a particular type of product. EA Sports, for instance, has held the exclusive rights to produce NFL video games – via its Madden franchise – <a href="https://kotaku.com/remember-its-not-just-the-nfls-exclusive-license-with-5988357">for nearly 20 years</a>, giving it an effective monopoly over this product line.</p>
<p>After deciding to move into the sports trading card market, Fanatics used exclusive trademark licenses <a href="https://sportscollectorsdigest.com/news/fanatics-sports-card-rights-reaction-mlb-nba-nfl-hobby">to secure the sole rights to produce MLB, NFL and NBA cards</a> in 2021.</p>
<p>While some people may see baseball cards as mere child’s play, the U.S. sports card industry <a href="https://www.verifiedmarketresearch.com/product/sports-trading-card-market/">is estimated to be a US$12 billion market</a>. Since the COVID-19 pandemic, <a href="https://theathletic.com/3447519/2022/07/26/sports-card-baseball-market/">there’s been a surge in interest</a>. </p>
<p>Moving forward, Fanatics will have near monopoly control over a large chunk of that market.</p>
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<img alt="A young woman wearing sunglasses, an older man wearing sunglasses, and a middle-aged man." src="https://images.theconversation.com/files/584197/original/file-20240325-28-qao0hy.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/584197/original/file-20240325-28-qao0hy.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=426&fit=crop&dpr=1 600w, https://images.theconversation.com/files/584197/original/file-20240325-28-qao0hy.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=426&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/584197/original/file-20240325-28-qao0hy.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=426&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/584197/original/file-20240325-28-qao0hy.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=535&fit=crop&dpr=1 754w, https://images.theconversation.com/files/584197/original/file-20240325-28-qao0hy.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=535&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/584197/original/file-20240325-28-qao0hy.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=535&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
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<span class="caption">Fanatics CEO Michael Rubin, right, embraces New England Patriots owner Robert Kraft at the 2019 Fanatics Super Bowl party.</span>
<span class="attribution"><a class="source" href="https://newsroom.ap.org/detail/2019FanaticsSuperBowlParty-Arrivals/5f67df95733e4014af8a9b8d5d97a2ce/photo?Query=michael%20rubin&mediaType=photo&sortBy=arrivaldatetime:desc&dateRange=Anytime&totalCount=62&currentItemNo=34">Paul R. Giunta/Invision/AP</a></span>
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<h2>Trading card competition spurs innovation</h2>
<p>This won’t be the first time that the U.S. sports card hobby has fallen under the control of a single manufacturer. </p>
<p>Throughout the 1960s and 1970s, one of the companies recently displaced by Fanatics – the Topps Chewing Gum company – possessed largely unchallenged power over the industry.</p>
<p>Topps had acquired its monopoly in the mid-1950s after <a href="https://fanarch.com/blogs/sports-cards/is-bowman-owned-by-topps">buying out its former competitor</a>, Bowman, following a protracted legal battle. It then maintained the monopoly for decades by signing exclusive contracts with nearly every MLB player. These contracts gave Topps the sole rights to use images of the players on trading cards.</p>
<p>This lack of competition resulted in an era that featured little innovation – and, in the eyes of many collectors, uninspired offerings. Indeed, during this period, Topps would not only often rely on relatively unattractive card designs, but the company would also occasionally <a href="https://www.sportscollectorsdaily.com/woulda-coulda-shoulda-vintage-baseball-team-photos-topps-left-out/">reuse the same player photos multiple years in a row</a>.</p>
<p>The Topps monopoly was ultimately broken up by a federal court <a href="https://blogs.loc.gov/law/2019/01/baseball-card-litigation-fleer-v-topps/">in a suit filed by would-be competitor Fleer</a> under the Sherman Antitrust Act, and this decision led to a variety of new brands entering the market. </p>
<p>In addition to Fleer, the 1980s would witness the launch of a flood of new card companies, including <a href="https://www.cardboardconnection.com/donruss-baseball-card-designs-years">Donruss</a>, <a href="https://www.baseball-almanac.com/baseball_cards/baseball_card_sets.php?m=Score">Score</a> and Upper Deck. The resulting competition pushed these companies, <a href="https://books.google.com/books/about/Card_Sharks.html?id=J-_vAQAACAAJ">with Upper Deck leading the way</a>, to dramatically improve their product offerings, not only upgrading their card designs and photos, but also their printing technology and card stock.</p>
<p>Eventually, however, many card collectors became overwhelmed by the vast number of product offerings in the 1990s and early 2000s. Realizing that overproduction was dampening consumer interest, sports leagues began to grant exclusive licenses to individual card manufacturers to restrict the number of cards on the market. Topps, for instance, <a href="https://www.nytimes.com/2009/08/06/sports/baseball/06cards.html">regained its status</a> as the exclusive card manufacturer for MLB in 2009.</p>
<p>Until recently, however, different companies had held the exclusive rights to produce trading cards for the leading U.S. sports leagues, providing some degree of continued competition in the industry.</p>
<h2>Is Fanatics running afoul of antitrust law?</h2>
<p>Fanatics’ consolidation of the industry raises the specter that the hobby could once again witness the ills of monopolization in the coming years.</p>
<p>Perhaps unsurprisingly, Fanatics’ takeover of the sports card hobby <a href="https://www.cnbc.com/2023/08/07/fanatics-panini-launch-legal-battle-with-a-pair-of-lawsuits.html">is currently being challenged in court by Panini</a>, another of the companies that Fanatics supplanted.</p>
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<img alt="Yellow and sign reading 'PANINI' in front of manufacturing facilities." src="https://images.theconversation.com/files/584186/original/file-20240325-18-1cecuh.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/584186/original/file-20240325-18-1cecuh.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/584186/original/file-20240325-18-1cecuh.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/584186/original/file-20240325-18-1cecuh.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/584186/original/file-20240325-18-1cecuh.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/584186/original/file-20240325-18-1cecuh.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/584186/original/file-20240325-18-1cecuh.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
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<span class="caption">The Italian collectibles company Panini filed an antitrust lawsuit against Fanatics in 2023.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/this-photo-taken-on-april-20-2018-shows-the-panini-group-news-photo/950673158?adppopup=true">Marco Bertorello/AFP via Getty Images</a></span>
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<p>The lawsuit alleges that Fanatics has violated the Sherman Antitrust Act by engaging in anti-competitive practices that have ousted Panini and other competitors from the industry. </p>
<p>In this sense, Fanatics’ re-monopolization of the U.S. sports trading card business exhibits additional parallels to the earlier Topps monopoly of the 1960s and 1970s.</p>
<p>Ultimately, Panini’s case merely underlies what may actually be bigger questions about Fanatics’ business practices in general. </p>
<p>Fanatics has used exclusive license agreements – similar to those that it has executed for sports cards – to help build its dominant position in the broader sports licensing marketplace. </p>
<p>Whether these exclusive licensing agreements are legal or not remains unresolved; the permissibility of similar exclusive trademark licenses under federal antitrust law was last raised in a 2010 case before the Supreme Court in <a href="https://www.oyez.org/cases/2009/08-661">American Needle, Inc. v. National Football League</a>. </p>
<p>In that case, a former manufacturer of NFL hats sued the NFL after the league decided to grant Reebok the exclusive rights to make its team-logoed hats beginning in 2002. American Needle alleged that the decision by 32 individually owned and operated NFL franchises to collectively license their trademarks to a single manufacturer ran afoul of <a href="https://www.law.cornell.edu/wex/sherman_antitrust_act">the Sherman Antitrust Act</a>.</p>
<p>While the Supreme Court held that the NFL-Reebok deal was subject to scrutiny under antitrust law, the parties ultimately settled the case before the courts issued a final resolution regarding the legality of the NFL’s exclusive license.</p>
<p>While sports trading cards comprise a multibillion-dollar industry, they represent just a share of the larger, <a href="https://www.grandviewresearch.com/industry-analysis/licensed-sports-merchandise-market-report">$33 billion U.S. sports licensing market</a>. </p>
<p>See-through, cheap-looking baseball pants may or may not be a consequence of a lack of competition in this market.</p>
<p>But we think it’s only a matter of time before the depletion of competition for licensed sports apparel results in higher prices and less choice for fans. The same holds true for trading cards.</p><img src="https://counter.theconversation.com/content/226376/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>The authors do not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and have disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Fanatics’ consolidation of the sports card industry risks a stagnant future for the hobby.Nathaniel Grow, Associate Professor of Business Law and Ethics, Indiana UniversityJohn Holden, Associate Professor of Management, Oklahoma State UniversityMarc Edelman, Professor of Law, Baruch College, CUNYLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2266702024-03-26T20:54:50Z2024-03-26T20:54:50ZAbortion drug access could be limited by Supreme Court − if the court decides anti-abortion doctors can, in fact, challenge the FDA<figure><img src="https://images.theconversation.com/files/584450/original/file-20240326-30-a29mv8.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Pro-abortion rights activists rally in front of the Supreme Court on March 26, 2024, the day justices heard oral arguments about the use of mifepristone.</span> <span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/abortion-rights-activist-rally-in-front-of-the-us-supreme-news-photo/2107843451?adppopup=true">Drew Angerer/AFP via Getty Images </a></span></figcaption></figure><p><em>Who has the legal right to challenge decisions by the U.S. Food and Drug Administration? And should the moral umbrage of a group of anti-abortion rights doctors shift policy across the country, limiting women’s ability to get the widely used abortion drug mifepristone?</em></p>
<p><em>These are a few of the central questions that the <a href="https://www.cbsnews.com/news/supreme-court-abortion-pill-arguments-mifepristone/">Supreme Court fielded on March 26, 2024</a>, during the oral arguments in <a href="https://www.scotusblog.com/case-files/cases/food-and-drug-administration-v-alliance-for-hippocratic-medicine-2/">FDA v. Alliance for Hippocratic Medicine</a>. A group of doctors is challenging the FDA, saying that the federal agency’s decision allowing people to get mifepristone via telehealth, at up to 10 weeks of pregnancy, is causing some medical professionals harm.</em></p>
<p><em>Amy Lieberman, politics and society editor at The Conversation U.S., spoke with family law and reproductive justice scholars <a href="https://scholar.google.com/citations?user=gCJEShUAAAAJ&hl=en">Naomi Cahn</a> and <a href="https://www.law.gwu.edu/sonia-m-suter">Sonia Suter</a> to better understand what’s behind the oral arguments before the Supreme Court – and how the court’s eventual decision, expected in June, could affect people’s ability to get abortions by using mifepristone, one of two drugs used for medication abortion.</em> </p>
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<a href="https://images.theconversation.com/files/584469/original/file-20240326-26-9qpi95.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="White boxes of Mifepristone are seen stacked in a shelf." src="https://images.theconversation.com/files/584469/original/file-20240326-26-9qpi95.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/584469/original/file-20240326-26-9qpi95.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=900&fit=crop&dpr=1 600w, https://images.theconversation.com/files/584469/original/file-20240326-26-9qpi95.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=900&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/584469/original/file-20240326-26-9qpi95.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=900&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/584469/original/file-20240326-26-9qpi95.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=1131&fit=crop&dpr=1 754w, https://images.theconversation.com/files/584469/original/file-20240326-26-9qpi95.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=1131&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/584469/original/file-20240326-26-9qpi95.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=1131&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
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<span class="caption">A cabinet holds mifepristone at a health clinic in Casper, Wyo., in June 2023.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/cabinet-containing-mifepristone-seen-in-wellspring-health-news-photo/1258730531?adppopup=true">Rachel Woolf for The Washington Post via Getty Images</a></span>
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<p><strong>What is this case about?</strong></p>
<p><strong>Sonia Suter:</strong> It’s about whether the FDA’s regulations for the use of <a href="https://www.fda.gov/drugs/postmarket-drug-safety-information-patients-and-providers/questions-and-answers-mifepristone-medical-termination-pregnancy-through-ten-weeks-gestation">mifepristone were appropriately loosened in 2016 and 2021</a>. These changes generally make mifepristone more accessible by allowing people to have the medication prescribed via a telehealth visit and then getting the pill in the mail.</p>
<p><strong>Naomi Cahn:</strong> That 2016 regulation also extended the time during which mifepristone could be prescribed, increasing it from seven to 10 weeks gestation. Medication abortions accounted for <a href="https://www.guttmacher.org/2024/03/medication-abortion-accounted-63-all-us-abortions-2023-increase-53-2020">63% of all abortions</a> that occurred in the U.S. in 2023. This percentage has increased since the Supreme Court overturned the constitutional right to an abortion in 2022.</p>
<p><strong>Why are these guidelines being challenged?</strong></p>
<p><strong>Suter:</strong> A group of doctors and medical associations that oppose abortion <a href="https://www.nytimes.com/2024/03/26/us/erin-hawley-abortion-pill-supreme-court.html">are challenging these guidelines</a> and using this court case as a way, we believe, to limit the ability to get an abortion by using medication. </p>
<p>They challenged the drug’s initial approval by the FDA and the relaxed restrictions on how it is used. They claimed that the FDA exceeded its authority, did not rely on proper data and did not have adequate support from scientific studies for its decision that mifepristone could be safely prescribed. Their initial arguments, which the lower court accepted, would have banned mifepristone. But that decision was not upheld by the <a href="https://www.ca5.uscourts.gov/opinions/pub/23/23-10362-CV1.pdf">5th Circuit Court</a>. </p>
<p>Instead, the issues before the Supreme Court focus on whether the FDA should have expanded the use of mifepristone. Virtually all studies have shown that <a href="https://www.nytimes.com/interactive/2023/04/01/health/abortion-pill-safety.html">mifepristone is not dangerous</a>, even with the relaxed conditions on its use. </p>
<p><strong>What is the federal government’s central argument against these claims?</strong></p>
<p><strong>Cahn:</strong> The government is stating that the FDA appropriately reviewed all of the evidence and its decision was appropriate. </p>
<p>Indeed, the attorney representing the mifepristone manufacturer, <a href="https://www.supremecourt.gov/oral_arguments/argument_transcripts/2023/23-235_p8k0.pdf">Jessica Ellsworth</a>, pointed out that <a href="https://apnews.com/article/abortion-pill-mifepristone-redacted-studies-supreme-court-ebd60519fd44dc69c5ac213580d1c1ba#:%7E:text=A%20medical%20journal%20has%20retracted,and%20flaws%20in%20their%20research.">the studies cited by the challengers have either been</a> discredited <a href="https://www.npr.org/sections/health-shots/2024/02/09/1230175305/abortion-pill-mifepristone-retraction-supreme-court">or withdrawn because they were unreliable</a>. </p>
<p>Another critical issue, as <a href="https://www.nytimes.com/live/2024/03/26/us/abortion-pill-supreme-court">U.S. Solicitor General Elizabeth Prelogar said to the justices today</a>, is whether the organization challenging this ruling actually has legal standing – the right to sue – to bring a lawsuit against the FDA. </p>
<p><strong>Why is the question of who can sue the FDA important here?</strong></p>
<p><strong>Suter:</strong> Under U.S. law, you cannot succeed in court every time you are unhappy. The Supreme Court has ruled that the Constitution requires parties who bring suit in federal court to <a href="https://www.law.cornell.edu/constitution-conan/article-3/section-2/clause-1/standing-requirement-overview">have “standing.”</a> This means parties have to show that they have been injured in some tangible way or threatened with such an injury by the acts that are the basis of the lawsuit. In this case, a group of doctors morally opposed to abortion are saying they have been injured. Their claim is that with the changes in the FDA’s regulation of mifepristone prescriptions, patients will come to them in the emergency room, requiring medical care that violates these religious beliefs and causes them stress. </p>
<p>The government’s response is that the FDA is not making them do anything, including prescribe these pills or treat these patients. And <a href="https://www.hhs.gov/conscience/conscience-protections/index.html">there are conscience laws</a> that say if the treatment is against a health care provider’s beliefs, they do not need to provide that care. So the government asks: How are the doctors harmed here?</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/584543/original/file-20240326-18-ohf6hs.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="A line of people in formal clothing are seen behind barricades outside the Supreme Court on a grey day." src="https://images.theconversation.com/files/584543/original/file-20240326-18-ohf6hs.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/584543/original/file-20240326-18-ohf6hs.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/584543/original/file-20240326-18-ohf6hs.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/584543/original/file-20240326-18-ohf6hs.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/584543/original/file-20240326-18-ohf6hs.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/584543/original/file-20240326-18-ohf6hs.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/584543/original/file-20240326-18-ohf6hs.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">People wait outside the Supreme Court to hear oral arguments on mifepristone on March 26, 2024.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/people-wait-in-line-outside-us-supreme-court-to-hear-oral-news-photo/2107843290?adppopup=true">Drew Angerer/AFP via Getty Images</a></span>
</figcaption>
</figure>
<p><strong>What is your impression from the justices, listening to these arguments?</strong></p>
<p><strong>Cahn:</strong> I was surprised by how much time the justices spent asking about legal standing and whether there was a direct enough connection between the plaintiffs and the FDA’s guidance. </p>
<p><strong>What’s the potential impact of the court’s eventual ruling on this case?</strong></p>
<p><strong>Cahn:</strong> The court’s decision has implications for the whole FDA approval process as well as access to medication abortion, including through telehealth and the mail. If the court rules for the doctors challenging the FDA, mifepristone would still be available, but access to it would be severely limited because people would need an in-person visit before they could get it.</p><img src="https://counter.theconversation.com/content/226670/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>The authors do not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and have disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Two legal scholars who study abortion-related laws explain what happened at the Supreme Court in a case that could make it harder to get an abortion.Naomi Cahn, Professor of Law, University of VirginiaSonia Suter, Professor of Law, George Washington UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2260922024-03-22T12:31:14Z2024-03-22T12:31:14ZWhy March Madness is a special time of year for state budgets<figure><img src="https://images.theconversation.com/files/582647/original/file-20240318-24-4tudw6.jpg?ixlib=rb-1.1.0&rect=6%2C6%2C4390%2C3045&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Feeling lucky?</span> <span class="attribution"><a class="source" href="https://newsroom.ap.org/detail/SportsBetting-ThingstoKnow/d07b68af393548588b8a646d5cdd79e9/photo?Query=sports%20betting&mediaType=photo&sortBy=arrivaldatetime:desc&dateRange=Anytime&totalCount=1985&currentItemNo=2">Wayne Parry/AP Photo</a></span></figcaption></figure><p>March Madness – the time when the <a href="https://www.ncaa.com/march-madness-live/watch?cid=ncaa_mml_nav_men">best men’s</a> and <a href="https://www.ncaa.com/womens-di-championship?mml=1&cid=ncaa_mml_nav_women">women’s college</a> basketball teams challenge each other – is a made-for-television spectacle <a href="https://www.sportsmediawatch.com/2023/04/ncaa-national-championship-ratings-record-low-uconn-sdsu-cbs-mens/">watched by millions</a>. While <a href="https://www.ncaa.com/news/basketball-men/article/2023-03-08/march-madness-history-comprehensive-guide-mens-tournament">March Madness has been around for decades</a>, one of the tournament’s biggest changes happened in 2018, when the <a href="https://www.archerlaw.com/en/news-resources/client-advisories/landmark-u-s-supreme-court-decision-paves-the-way-for-legalized-sports-betting">Supreme Court struck down the ban on sports betting</a>. </p>
<p>Since then, legal sports betting has skyrocketed. Americans <a href="https://www.americangaming.org/resources/aga-commercial-gaming-revenue-tracker/">made US$120 billion of legal sports bets</a> in 2023, according to the American Gaming Association, which promotes gambling. In 2024, <a href="https://www.espn.com/espn/betting/story/_/id/39730969/estimate-projects-272b-wagers-ncaa-basketball-tournaments">the group predicts</a> Americans will place <a href="https://www.vox.com/2024/3/18/24102300/march-madness-sports-betting">$2.7 billion of legal bets</a> on March Madness alone.</p>
<p><a href="https://www.bu.edu/questrom/profile/jay-zagorsky/">I am</a> a <a href="https://www.bu.edu/questrom/">business school</a> professor fascinated by <a href="https://theconversation.com/what-is-march-madness-and-the-nonprofit-that-manages-the-mayhem-93202">March Madness</a> and <a href="https://theconversation.com/market-for-illegal-sports-betting-in-us-is-not-really-a-150-billion-business-96618">sports betting</a>. Studying sports betting has shown me <a href="https://theconversation.com/could-gambling-be-the-secret-to-saving-when-rates-are-so-low-57961">how valuable it is</a> for states short on cash. Unfortunately, it also has significant drawbacks, especially for <a href="https://www.ncpgambling.org/help-treatment/help-by-state/">gambling addicts</a> and their families. </p>
<h2>Why lawmakers love sports betting</h2>
<p>As of March 2024, <a href="https://www.americangaming.org/research/state-gaming-map/">38 states allow</a> some form of sports gambling, and six more are debating the issue. State lawmakers are interested in sports gambling because they have a fiscal problem. State spending over time has <a href="https://www.taxpolicycenter.org/statistics/state-and-local-direct-general-expenditures">increased in both absolute</a> and <a href="https://www.taxpolicycenter.org/statistics/state-and-local-direct-general-expenditures-capita">per-person terms</a> after <a href="http://businessmacroeconomics.com">adjusting for inflation</a>.</p>
<p>While state spending is increasing, state revenue from so-called “sin taxes” has flatlined after adjusting for inflation. <a href="https://www.lung.org/research/trends-in-lung-disease/tobacco-trends-brief/overall-tobacco-trends">People are smoking</a> and <a href="https://news.gallup.com/poll/353858/alcohol-consumption-low-end-recent-readings.aspx">drinking less</a>, reducing <a href="https://www.taxpolicycenter.org/statistics/state-and-local-tobacco-tax-revenue">revenue from cigarette</a> and <a href="https://www.taxpolicycenter.org/statistics/state-and-local-alcohol-tax-revenue">alcohol taxes</a>. Even <a href="https://www.taxpolicycenter.org/statistics/lottery-revenue">lottery revenue has flattened out</a> after growing strongly for decades.</p>
<p>Increased spending combined with a reluctance to raise taxes has led to a push to find new sources of revenue. That <a href="https://www.taxpolicycenter.org/publications/are-states-betting-sin-murky-future-state-taxation">makes sports betting an appealing</a> option to politicians.</p>
<h2>The statehouse always wins</h2>
<p><a href="https://www.nbcnews.com/news/sports/march-madness-basketball-sports-betting-rcna143773">Billions of dollars are wagered</a> on sports each year. More than 90% of the money bet goes to paying out winning gamblers. Gambling operators keep the rest, which they share with the states. The percentage kept, called the hold rate, has been <a href="https://www.legalsportsreport.com/111012/analysis-2023-us-sports-betting-hold-trend/">steadily climbing over time</a>, with 2023’s <a href="https://www.americangaming.org/wp-content/uploads/2024/01/CY-2024_CGRT_v2.pdf">national average at 9.1%</a> of the money bet.</p>
<p>State governments now collect <a href="https://www.census.gov/library/stories/2024/02/legal-sports-betting.html">about half a billion dollars each quarter</a>, or about $2 billion a year, from sports gambling. That’s roughly one-fifth of that 9.1%.</p>
<p>If gamblers bet around $3 billion on March Madness, then states will pocket over $50 million dollars in extra revenue just from a three-week basketball tournament.</p>
<h2>The ugly side of sports betting</h2>
<p>Gambling is wonderful for state revenues and <a href="https://www.espn.com/espn/betting/story/_/id/39563784/sports-betting-industry-posts-record-11b-2023-revenue">gaming-company profits</a>. However, it has <a href="https://www.independent.co.uk/news/uk/home-news/gambling-addiction-million-white-paper-b2322452.html">a dark side</a>: While many people enjoy gambling, <a href="https://theconversation.com/millions-of-americans-are-problem-gamblers-so-why-do-so-few-people-ever-seek-treatment-197861">millions of Americans have a gambling problem</a>. </p>
<p>Studies suggest <a href="https://link.springer.com/article/10.1007/s10899-014-9471-4">between 1% and 2%</a> of adults fall into this category. In Massachusetts, where I teach, a 2018 survey found that about 2% of adults were already problem gamblers, and <a href="https://www.umass.edu/seigma/sites/default/files/Seigma-GamblingHarm-Fact-Sheet-F2-2018%20copy.pdf">a further 8% were at risk</a>.</p>
<p><iframe id="IIfQP" class="tc-infographic-datawrapper" src="https://datawrapper.dwcdn.net/IIfQP/2/" height="400px" width="100%" style="border: none" frameborder="0"></iframe></p>
<p>Meanwhile, the number of calls to the <a href="https://www.ncpgambling.org/help-treatment/about-the-national-problem-gambling-helpline/">National Problem Gambling Helpline</a> lasting more than a minute <a href="https://public.tableau.com/app/profile/national.council.on.problem.gambling.ncpg/viz/NationalProblemGamblingHelplineDashboard-IncomingTraffic/IncomingTraffic">has increased sharply in recent years</a>. While this doesn’t mean that problem gambling has become more common – among other issues, correlation isn’t causation – the increase very closely matches the <a href="https://www.cbssports.com/general/news/u-s-sports-betting-here-is-where-all-50-states-currently-stand-on-legalizing-online-sports-betting-sites/">steady rollout of online sports betting</a> across the U.S.</p>
<h2>Two possible policy solutions</h2>
<p>Betting on sports was illegal before 2018. <a href="https://www.americangaming.org/illegal-sports-betting/">This forced gamblers</a> to either bet with a bookie or an offshore site. Betting with a bookie before 2018 was a relatively slow process. Gamblers typically needed to pay for their bets upfront with cash and ran the risk their bookie would be arrested or shut down.</p>
<p>Today, <a href="https://theconversation.com/sports-betting-how-in-play-betting-features-could-be-leading-to-harmful-gambling-new-research-177872">in-play or live betting</a> is legal and almost instantaneous. Bettors sitting on their couches at home can make multiple types of bets, such as which <a href="https://www.si.com/nba/mavericks/news/bad-beat-kristap-porzingis-missed-layup-cost-a-man-76000-dallas-mavericks">player will make the first shot</a> in a basketball game. In business terms, sports gambling went from extreme friction to a completely <a href="https://www.forbes.com/sites/shephyken/2019/06/09/are-you-providing-a-frictionless-customer-experience">frictionless experience</a>.</p>
<p>To reduce the harms of sports betting, I propose two ways to reinject friction into the system. The first is to prevent <a href="https://www.forbes.com/advisor/credit-cards/sports-betting/">credit cards from being used for online gambling</a>. While not every state and bank allows credit cards to fund a sports betting account, many do. Those credit cards that allow it often treat gambling payments as a <a href="https://www.citizensbank.com/learning/what-is-a-cash-advance.aspx">cash advance, which is very costly</a>.</p>
<p>The <a href="https://www.gamblingcommission.gov.uk/news/article/gambling-on-credit-cards-to-be-banned-from-april-2020">U.K. banned credit cards for remote gambling</a> in 2020, noting that people who used credit cards to gamble were <a href="https://consult.gamblingcommission.gov.uk/author/consultation-on-gambling-with-credit-cards/supporting_documents/Print%25252520the%25252520whole%25252520consultation%25252520%25252520gambling%25252520with%25252520credit%25252520cards.pdf">disproportionately likely to be problem gamblers</a>. <a href="https://ministers.dss.gov.au/media-releases/13411">Australia has also banned</a> online bets made with credit cards. A few U.S. states, <a href="https://www.wfmj.com/story/50551277/pa-lawmakers-introduce-bill-limiting-payment-options-for-online-gambling">such as Massachusetts and Tennessee</a>, have also instituted these sorts of bans, but most have not.</p>
<p>The second idea, which I prefer, is to <a href="https://podcasts.apple.com/au/podcast/the-case-for-cash-a-counterpoint-to-cashless/id1464022779?i=1000634760222">revert to common practice before 2018</a> of using cash to bet. The idea is simple. Anyone with an online gambling account would need to prefund their account with cash. Winners would never have to stop gambling.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/582643/original/file-20240318-16-qsxrnc.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="Bags of cash and printout of a March Madness schedule are seen on a police evidence table." src="https://images.theconversation.com/files/582643/original/file-20240318-16-qsxrnc.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/582643/original/file-20240318-16-qsxrnc.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=391&fit=crop&dpr=1 600w, https://images.theconversation.com/files/582643/original/file-20240318-16-qsxrnc.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=391&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/582643/original/file-20240318-16-qsxrnc.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=391&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/582643/original/file-20240318-16-qsxrnc.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=491&fit=crop&dpr=1 754w, https://images.theconversation.com/files/582643/original/file-20240318-16-qsxrnc.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=491&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/582643/original/file-20240318-16-qsxrnc.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=491&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">In this 2006 file photo, the Brooklyn district attorney’s office presents evidence used to arrest 10 men in a sports betting ring. New Yorkers can now legally bet on March Madness.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/the-brooklyn-district-attorneys-office-presents-evidence-news-photo/526086920">Ramin Talaie/Corbis via Getty Images</a></span>
</figcaption>
</figure>
<p>Losers, however, would be forced to temporarily stop betting when their account runs out of money. Needing to take a break to go to a bank or simply pull money out of your wallet and hand it to someone would give people a chance to think about what they’re doing instead of being stuck in the <a href="https://dolby.io/blog/revolutionizing-microbetting-in-sports-with-real-time-streaming/">moment of a bet-bet-bet mindset</a>.</p>
<p>In theory, people could deposit cash into their accounts at any of the <a href="https://www.naspl.org/faq">roughly 223,000 locations across the country that sell lottery tickets</a>. To implement this idea, however, the federal government would need to change a law. <a href="https://www.ecfr.gov/current/title-26/chapter-I/subchapter-D/part-44">Since 1955</a>, it has imposed a <a href="https://www.ecfr.gov/current/title-26/chapter-I/subchapter-D/part-44/subpart-C/section-44.4411-1">special yearly tax of $50 on each person</a> who accepts bets for profit. </p>
<p><a href="https://www.ecfr.gov/current/title-26/chapter-I/subchapter-D/part-44/subpart-B/section-44.4402-1">The law</a> <a href="https://www.irs.gov/pub/irs-tege/eotopice99.pdf">exempts charities and state lotteries</a>. This tax doesn’t raise much revenue already, <a href="https://www.bls.gov/oes/current/oes393019.htm">since so few people are subject</a> to it. It also reduces employment, as well as gambling companies’ interest in allowing in-person prefunding of accounts.</p>
<p>If you’re watching March Madness and betting on the tournament, I hope you win. But even if you don’t, at least your state government will.</p><img src="https://counter.theconversation.com/content/226092/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Jay L. Zagorsky does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>When the US Supreme Court legalized sports betting, states were quick to get in on the action. But as lawmakers grow reliant on taxes from betting, what do they owe problem gamblers?Jay L. Zagorsky, Associate Professor of Markets, Public Policy and Law, Boston UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2258682024-03-20T12:29:15Z2024-03-20T12:29:15ZA century ago, one state tried to close religious schools − a far cry from today, with controversial plans in place for the nation’s first faith-based charter school<figure><img src="https://images.theconversation.com/files/582250/original/file-20240315-30-6vl8a7.jpg?ixlib=rb-1.1.0&rect=0%2C0%2C1024%2C663&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">A Catholic schoolroom in the U.S. around 1930.</span> <span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/catholic-elementary-school-class-portrait-usa-circa-1930-news-photo/629453645?adppopup=true">Universal History Archive/Universal Images Group via Getty Images</a></span></figcaption></figure><p>Almost 100 years ago, a group of nuns joined a suit against the state of Oregon – <a href="https://www.oxfordreference.com/display/10.1093/oi/authority.20110803100326625">and made it all the way</a> to the U.S. Supreme Court.</p>
<p>Their cause? Keeping Catholic schools open. In 1922, voters approved an initiative requiring almost all children ages 8-16 to attend public schools – a motion <a href="https://www.oregonencyclopedia.org/articles/pierce_vs_society_of_sisters_1925_/">aimed at closing faith-based schools</a> in particular.</p>
<p>But the Supreme Court’s 1925 ruling in their case, <a href="https://www.oyez.org/cases/1900-1940/268us510">Pierce v. Society of Sisters of the Holy Name of Jesus and Mary</a>, favored the nuns. The ruling became a Magna Carta of sorts for private schools, including faith-based ones, safeguarding their right to operate – both secular and religious. Equally as importantly, Pierce <a href="https://heinonline.org/HOL/LandingPage?handle=hein.journals/udetmr78&div=25&id=&page=">has been used to protect parental rights</a> to make choices about their children’s education.</p>
<p>Nonpublic schools such as the ones run by the Society of Sisters no longer must defend their rights to exist. Today, the pendulum has swung the other way: In recent years, the Supreme Court has increasingly <a href="https://theconversation.com/state-funds-for-students-at-religious-schools-supreme-court-says-yes-in-maine-case-but-consequences-could-go-beyond-184618">allowed public funding</a> to go to faith-based schools, their students or both.</p>
<p>On April 2, 2024, Oklahoma’s Supreme Court will hear oral arguments in <a href="https://www.aol.com/oklahoma-supreme-court-hear-arguments-015922066.html">a case that could reshape rules</a> even further: whether to allow <a href="https://theconversation.com/oklahoma-oks-the-nations-first-religious-charter-school-but-litigation-is-likely-to-follow-207103">a Catholic charter school</a> to open its doors, which critics say would all but <a href="https://www.washingtonpost.com/business/2023/06/06/oklahoma-s-new-state-funded-religious-charter-school-isn-t-ok/d50b4e5a-047d-11ee-b74a-5bdd335d4fa2_story.html">demolish the line between church and state</a> in education.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/582848/original/file-20240319-8759-3673sk.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="A dark wooden platform with several seats built in, and dark green velvet curtains behind them." src="https://images.theconversation.com/files/582848/original/file-20240319-8759-3673sk.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/582848/original/file-20240319-8759-3673sk.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=450&fit=crop&dpr=1 600w, https://images.theconversation.com/files/582848/original/file-20240319-8759-3673sk.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=450&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/582848/original/file-20240319-8759-3673sk.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=450&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/582848/original/file-20240319-8759-3673sk.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=566&fit=crop&dpr=1 754w, https://images.theconversation.com/files/582848/original/file-20240319-8759-3673sk.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=566&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/582848/original/file-20240319-8759-3673sk.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=566&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">The state Supreme Court bench in Oklahoma City in 2017.</span>
<span class="attribution"><a class="source" href="https://newsroom.ap.org/detail/SupremeCourtOklahoma/2400a4bf66084ec9bda3b443d26adf81/photo?Query=oklahoma%20supreme%20court&mediaType=photo&sortBy=arrivaldatetime:asc&dateRange=Anytime&totalCount=195&currentItemNo=127">AP Photo/Sue Ogrocki</a></span>
</figcaption>
</figure>
<h2>Property and parenting</h2>
<p>In 1922, Oregon voters approved an initiative requiring parents of children ages 8-16 to send them to public schools. The act carved out many exceptions, including for children who had already completed eighth grade or lived too far away, but did not include private schools among them.</p>
<p>The law would have effectively outlawed nonpublic schools. This push came just as the influence of nativist groups such as the <a href="https://www.britannica.com/topic/Know-Nothing-party">Know-Nothing Party</a>, which <a href="https://www.encyclopedia.com/religion/encyclopedias-almanacs-transcripts-and-maps/nativism-american">opposed the largely Catholic waves of immigrants</a> as un-American, began to wane.</p>
<p>Officials from a Catholic school challenged Oregon’s act, as did officials from the secular Hill Military Academy. After the federal trial court in Oregon decided that the statute could not go into effect, Gov. Walter M. Pierce appealed, acting on behalf of the state. The U.S. Supreme Court then unanimously affirmed <a href="https://www.oyez.org/cases/1900-1940/268us510">in favor of the schools</a>.</p>
<p>The Supreme Court made two major points, both of which rely on the 14th Amendment’s <a href="https://www.law.cornell.edu/constitution/amendmentxiv">due process clause</a>, which declares that no state shall “deprive any person of life, liberty, or property, without due process of law.”</p>
<p>The justices recognized the power of the state to “regulate all schools, to inspect, supervise, and examine them, their teachers and pupils,” whether private or public – though apart from health and safety issues, states typically impose fewer rules on nonpublic institutions. Yet, the Court agreed that the law would have seriously undermined the owners’ ability to operate their schools, while greatly diminishing the value of their properties. </p>
<p>Second, the justices turned to parental rights, identifying them as one of the liberties protected by the 14th Amendment. In often-quoted language, the court declared that <a href="https://supreme.justia.com/cases/federal/us/268/510/">the child “is not the mere creature of the state</a>; those who nurture him and direct his destiny have the right, coupled with the high duty, to recognize and prepare him for additional obligations.”</p>
<p>The justices thereby invalidated Oregon’s statute, because it “unreasonably interfere[d] with the liberty of parents and guardians to direct the upbringing and education of children under their control.”</p>
<h2>Nonpublic schools, public funds</h2>
<p>Recent battles over <a href="https://udayton.edu/directory/education/eda/russo_charles.php">religion and education</a> at the Supreme Court are not about faith-based schools’ right to exist but about how much state funding they and their students can receive. Starting in 2017, the Supreme Court handed down a trilogy of cases greatly increasing the governmental aid available.</p>
<p>The first, <a href="https://www.supremecourt.gov/opinions/16pdf/15-577_khlp.pdf">Trinity Lutheran Church v. Comer</a>, arose after officials in Missouri prevented a Christian preschool and day care center from purchasing recycled, cut-up tires to resurface their playground to enhance safety – a state program available to other nonprofits.</p>
<p>The Supreme Court <a href="https://www.supremecourt.gov/opinions/16pdf/15-577_khlp.pdf">ruled in the church’s favor</a> in 2017. The <a href="https://constitution.congress.gov/constitution/amendment-1/">free exercise clause</a> of the First Amendment forbids the government from prohibiting the “free exercise” of religion. The majority reasoned that the free exercise clause means states cannot single out institutions or people by denying them generally available benefits, for which they are otherwise eligible, solely on the basis of religion.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/582849/original/file-20240319-26-ssjqm7.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="A small statue of a child holding a book sits in the foreground, with a large columned white building in the background." src="https://images.theconversation.com/files/582849/original/file-20240319-26-ssjqm7.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/582849/original/file-20240319-26-ssjqm7.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/582849/original/file-20240319-26-ssjqm7.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/582849/original/file-20240319-26-ssjqm7.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/582849/original/file-20240319-26-ssjqm7.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/582849/original/file-20240319-26-ssjqm7.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/582849/original/file-20240319-26-ssjqm7.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">The U.S. Supreme Court on Feb. 22, 2024.</span>
<span class="attribution"><a class="source" href="https://newsroom.ap.org/detail/SupremeCourt/2df44ba2a63d402092e7559a7e8d5f71/photo?Query=supreme%20court&mediaType=photo&sortBy=arrivaldatetime:asc&dateRange=now-30d&totalCount=243&currentItemNo=31">AP Photo/Mark Schiefelbein</a></span>
</figcaption>
</figure>
<p>In 2020, the court again expanded the limits on aid for students at K-12 religious schools. This case, <a href="https://www.law.cornell.edu/supct/cert/18-1195">Espinoza v. Montana Department of Revenue</a>, stemmed from a state program that allowed tax credits for parents sending their children to private schools. However, the state’s constitution prohibits public funding for religious education programs, so parents who sent their children to faith-based schools were barred from participating.</p>
<p>Using a rationale similar to the one it applied in Trinity Lutheran, the court held that this no-aid provision <a href="https://www.oyez.org/cases/2019/18-1195">discriminated on the basis of religion</a>, violating the <a href="https://constitution.congress.gov/constitution/amendment-1/">free exercise clause</a> of the Constitution.</p>
<p>Most recently, in 2022, the court further expanded public funding for faith-based schools in <a href="https://www.scotusblog.com/case-files/cases/carson-v-makin/">Carson v. Makin</a>, a case from Maine. The Supreme Court invalidated a statute excluding “sectarian” schools from a tuition program for parents living in districts lacking public secondary schools. Because Maine’s constitution guarantees a free public education, the tuition payments allow parents in these districts to send their children to schools of their choice.</p>
<p>The justices also <a href="https://theconversation.com/state-funds-for-students-at-religious-schools-supreme-court-says-yes-in-maine-case-but-consequences-could-go-beyond-184618">struck the law down</a> because it violated the free exercise clause by treating religious people and institutions differently than others. Moreover, echoing Pierce, the court found that Maine’s statute failed to protect parents’ rights to send their children to the schools of their choice.</p>
<h2>Pushing the boundary</h2>
<p>Pierce also laid the groundwork for the “parental choice movement” in education, including charter schools. Typically, these schools operate under performance contracts, or “charters,” with public sponsors: either local school boards or occasionally colleges. While charter schools have more freedom to design their own standards and curricula, they can, <a href="https://www.law.com/thelegalintelligencer/almID/1202727802943/">unlike regular public schools, be closed</a> for failing to reach stated targets on student achievement.</p>
<p>In June 2023, Oklahoma’s statewide virtual school board authorized the creation of <a href="https://theconversation.com/oklahoma-oks-the-nations-first-religious-charter-school-but-litigation-is-likely-to-follow-207103">the nation’s first faith-based charter</a>, demonstrating how far the pendulum of allowing government aid into religious schools may be swinging. But <a href="https://stisidorevirtualschool.org/">St. Isidore of Seville Catholic Virtual School</a>, which plans to open under the direction of the Roman Catholic Archdiocese of Oklahoma City and the Diocese of Tulsa, will not start classes without a fight.</p>
<p>Oklahoma’s highest court has <a href="https://www.aol.com/oklahoma-supreme-court-hear-arguments-015922066.html">scheduled oral arguments</a> for April 2, 2024, as the state’s attorney general and others filed suit to stop St. Isidore from opening. Opponents of the school argue that the existence of a faith-based charter <a href="https://www.kosu.org/education/2023-10-23/oklahoma-attorney-general-files-lawsuit-against-state-board-over-catholic-charter-school">would violate the U.S. Constitution</a>, as well as Oklahoma’s state Constitution – according to which public schools shall be “free from sectarian control,” such that public funds cannot be used to support religious institutions – and various state statues.</p>
<p>Pierce remains a watershed moment for nonpublic schools’ rights to operate, including religious ones, and for parents’ rights. In light of recent Supreme Court developments, it appears that both of these rights are alive and well heading into Pierce’s second century – but not without controversy.</p><img src="https://counter.theconversation.com/content/225868/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Charles J. Russo does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>In 1922, Oregon voters approved an initiative to require public school for most students ages 8-16 − but it didn’t hold up in court.Charles J. Russo, Joseph Panzer Chair in Education and Research Professor of Law, University of DaytonLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2256192024-03-20T12:28:41Z2024-03-20T12:28:41ZBiden cannot easily make Roe v. Wade federal law, but he could still make it easier to get an abortion<figure><img src="https://images.theconversation.com/files/582808/original/file-20240319-20-n2gu76.jpg?ixlib=rb-1.1.0&rect=419%2C62%2C4759%2C3385&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">A protester marks the Dobbs v. Jackson Women's Health Organization decision anniversary outside the Supreme Court building on June 23, 2023. </span> <span class="attribution"><a class="source" href="https://mapi.associatedpress.com/v2/items/39d8d89cb379472ea647b7756c313426/preview/AP23175098262311.jpg?wm=api&tag=app_id=1,user_id=904438,org_id=101781">Associated Press/Nathan Howard</a></span></figcaption></figure><p>President Joe Biden promised during his State of the Union address on March 7, 2024, that he would make the right to get an abortion a federal law. </p>
<p>“If you, the American people, send me a Congress that supports the right to choose, I promise you I will restore Roe v. Wade as the <a href="https://www.whitehouse.gov/briefing-room/speeches-remarks/2024/03/08/remarks-by-president-biden-in-state-of-the-union-address-3/">law of the land again</a>,” Biden said. </p>
<p>If Biden meant simply that he would sign a bill enshrining the right to an abortion, then he can keep his promise. But, as he noted, such a bill is unlikely to be enacted by this current Congress, <a href="https://pressgallery.house.gov/member-data/party-breakdown">in which the House majority is Republican</a>. Moreover, if Biden expected such a law to be upheld by this Supreme Court, or even a different set of justices, he could be seriously disappointed.</p>
<p>On the other hand, there is much that Biden’s administration and Congress can do to offset the impact of the Supreme Court’s 2022 <a href="https://www.oyez.org/cases/2021/19-1392">Dobbs v. Jackson Women’s Health Organization</a> ruling, which removed federal constitutional protection for the right to get an abortion and sent the regulation of abortion back to the states. </p>
<p><a href="https://www.law.virginia.edu/faculty/profile/nrc8g/2915359">As experts</a> on <a href="https://www.law.gwu.edu/alan-b-morrison">constitutional law</a> and <a href="https://www.law.gwu.edu/sonia-m-suter">reproductive health and justice</a>, we are sorting out just what the federal government can do to protect access to abortion.</p>
<p>Most Americans think of the federal government and the president as capable of doing anything that a majority of Congress thinks is appropriate. But that is not true. </p>
<p>The president has various powers under the Constitution, including the authority to issue <a href="https://constitutioncenter.org/blog/executive-orders-101-what-are-they-and-how-do-presidents-use-them">executive orders</a>. </p>
<p>That’s what <a href="https://www.whitehouse.gov/briefing-room/presidential-actions/2022/07/08/executive-order-on-protecting-access-to-reproductive-healthcare-services/">Biden did</a> shortly after the Dobbs decision when he issued an executive order that called on different government officials and agencies to promote access to reproductive care, including abortion. </p>
<p>Biden can also have government agencies craft rules that protect abortion rights. The Department of Health and Human Services, for example, has proposed <a href="https://www.hhs.gov/about/news/2023/04/12/hhs-proposes-measures-bolster-patient-provider-confidentiality-around-reproductive-health-care.html#:%7E:text=Today%2C%20the%20U.S.%20Department%20of,protected%20health%20information%20(PHI)%20to">a rule to increase privacy protections</a> for reproductive health information, including abortion information. </p>
<p>But Biden has only limited authority to do this: These efforts could be undone by <a href="https://constitutioncenter.org/blog/executive-orders-101-what-are-they-and-how-do-presidents-use-them">Congress overriding</a> executive orders – or his successors reversing them – and courts invalidating agency decisions. </p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/582806/original/file-20240319-26-k3xw86.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="Joe Biden is seen standing at a podium, in front of a large American flag and several people around him, including Vice President Kamala Harris" src="https://images.theconversation.com/files/582806/original/file-20240319-26-k3xw86.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/582806/original/file-20240319-26-k3xw86.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/582806/original/file-20240319-26-k3xw86.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/582806/original/file-20240319-26-k3xw86.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/582806/original/file-20240319-26-k3xw86.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/582806/original/file-20240319-26-k3xw86.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/582806/original/file-20240319-26-k3xw86.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">President Joe Biden speaks during the State of the Union address on March 7, 2024.</span>
<span class="attribution"><a class="source" href="https://mapi.associatedpress.com/v2/items/8a914f2c68444fefb2f27f6cfa4ab597/preview/AP24068158996875.jpg?wm=api&tag=app_id=1,user_id=904438,org_id=101781">Associated Press/Andrew Harnik</a></span>
</figcaption>
</figure>
<h2>Congress’ hands are partially tied</h2>
<p>Biden specifically said in February 2024 that he needs a Congress that will help him support a “woman’s right to choose.”</p>
<p>Two of us have written <a href="https://slate.com/news-and-politics/2022/01/congress-roe-law-abortion-alternative.html">about how Congress</a> does not have the authority to override a state’s decision to make abortions unlawful in most circumstances – although we <a href="https://twitter.com/jdmortenson/status/1521580604323737600">recognize that some</a> observers and experts would <a href="https://crsreports.congress.gov/product/pdf/LSB/LSB10787">question this conclusion</a>.</p>
<p>Congress has the power to pass laws, but only on a limited list of subjects. While the understanding of Congress’ power has expanded over time, there are still very real limits. </p>
<p>Congress is able to regulate commerce between states, but the Supreme Court has determined that its powers only reach activities that are <a href="https://crsreports.congress.gov/product/pdf/IF/IF11971">economic in nature</a>. So, the court ruled in 1994 that the federal government could not ban the possession of guns in a “<a href="https://www.oyez.org/cases/1994/93-1260">school zone</a>,” since there was no direct economic element involved. </p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/582919/original/file-20240319-30-7pp40o.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="Two white boxes say the words 'Mifepristone tablets' and are on a black table." src="https://images.theconversation.com/files/582919/original/file-20240319-30-7pp40o.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/582919/original/file-20240319-30-7pp40o.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/582919/original/file-20240319-30-7pp40o.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/582919/original/file-20240319-30-7pp40o.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/582919/original/file-20240319-30-7pp40o.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/582919/original/file-20240319-30-7pp40o.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/582919/original/file-20240319-30-7pp40o.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Packages of Mifepristone tablets are displayed in April 2023 at the family planning clinic in Rockville, Md.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/in-this-photo-illustration-packages-of-mifepristone-tablets-news-photo/1481950657?adppopup=true">Anna Moneymaker/Getty Images</a></span>
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<h2>Other options for protecting abortion rights</h2>
<p>The president and the federal government have other ways to make it easier and more affordable to get an abortion. Some of these methods might even be effective in states where there are partial or full bans.</p>
<p>First, Congress could amend existing federal laws to provide economic assistance for abortion. For example, it could repeal the <a href="https://crsreports.congress.gov/product/pdf/IF/IF12167#:%7E:text=The%20Hyde%20Amendment%2C%20according%20to,are%20not%20obligated%20to%20cover.">Hyde Amendment</a>, which is an annual restriction passed in 1976 that prohibits federal money from being used to fund abortions, except when necessary to save the life of a pregnant person or when a pregnancy is the result of rape or incest. </p>
<p>Biden promised to remove the Hyde Amendment in his 2020 campaign but has been unable to do so because of lack of congressional support. But eliminating the Hyde Amendment would have minimal impact in <a href="https://www.nytimes.com/interactive/2022/us/abortion-laws-roe-v-wade.html">states with abortion bans</a>. </p>
<p>Second, some states with abortion bans, like Idaho and Alabama, <a href="https://apnews.com/article/abortion-texas-idaho-alabama-state-lines-trafficking-d314933f3f7db93858561a0c6ad0b188">are threatening to prosecute women</a> who travel to another state to get an abortion. Congress could enact legislation that protects the right to interstate travel for an abortion. Congress could also make it a federal offense for anyone, including state prosecutors, to interfere with that right. </p>
<p>Justice Brett Kavanaugh, <a href="https://www.supremecourt.gov/opinions/21pdf/19-1392_6j37.pdf">in his concurring opinion in Dobbs</a>, asserted that if states criminalized interstate travel for people to get an abortion, those laws would fail “based on the constitutional right to interstate travel.” </p>
<p>Since Dobbs, <a href="https://apnews.com/article/idaho-abortion-minors-criminalization-b8fb4b6feb9b520d63f75432a1219588">Idaho has passed a law</a> making it a felony for adults who are not the parent of a pregnant minor to help that minor cross state lines for an abortion. A <a href="https://apnews.com/article/idaho-abortion-trafficking-travel-ban-270a403d7b4a5e99e566433556614728">district court has temporarily stayed</a> this law as unconstitutional. In addition, <a href="https://www.texastribune.org/2024/02/09/texas-abortion-transgender-care-outside-state-borders/#:%7E:text=In%201974%2C%20just%20after%20Roe,they%20travel%20to%20that%20State.%E2%80%9D">four counties and a few cities in Texas</a> have passed so-called “abortion trafficking laws,” which allow individuals to sue people who travel to get abortions out of state and those who help them.</p>
<p>Third, the Food and Drug Administration has approved, and in 2016 and 2021 expanded, the <a href="https://theconversation.com/medication-abortion-could-get-harder-to-obtain-or-easier-theres-a-new-wave-of-post-dobbs-lawsuits-on-abortion-pills-198978">availability of mifepristone</a>, one of the two drugs used for medication abortions. The Supreme Court is <a href="https://www.scotusblog.com/2023/12/justices-will-review-lower-court-ruling-on-access-to-abortion-pill/">considering a challenge</a> to some of the FDA’s rules about access to mifepristone and will hear <a href="https://www.scotusblog.com/case-files/cases/food-and-drug-administration-v-alliance-for-hippocratic-medicine-2/">oral arguments in that case on March 26, 2024</a>. </p>
<p>But even if the FDA prevails, an anti-abortion president could replace the head of this federal agency. The FDA might then rescind the current rules that have <a href="https://www.fda.gov/drugs/postmarket-drug-safety-information-patients-and-providers/questions-and-answers-mifepristone-medical-termination-pregnancy-through-ten-weeks-gestation">expanded access</a> to mifepristone, including allowing the pill to be used later in pregnancy. </p>
<p>To prevent that from happening, Biden could ask <a href="https://crsreports.congress.gov/product/pdf/IF/IF12269">Congress to pass a law</a> that would guarantee the same kind of access to mifepristone that the FDA currently allows. </p>
<p>Congress could also ensure that <a href="https://theconversation.com/an-obscure-1800s-law-is-shaping-up-to-be-the-center-of-the-next-abortion-battle-legal-scholars-explain-whats-behind-the-victorian-era-comstock-act-204728">mailing abortion pills is legal</a>. It could do so by repealing a Victorian law called the Comstock Act, which <a href="https://www.nytimes.com/interactive/2023/04/08/us/court-decision-invalidating-approval-of-mifepristone.html">some judges</a> have interpreted as prohibiting the mailing of abortion pills, and directly declaring that such acts are legal. </p>
<p>The Department of Justice issued an <a href="https://theconversation.com/an-obscure-1800s-law-is-shaping-up-to-be-the-center-of-the-next-abortion-battle-legal-scholars-explain-whats-behind-the-victorian-era-comstock-act-204728">opinion in 2022</a> that the Comstock Act does not override the FDA rule allowing mifepristone to be delivered by mail. But legislation would make it impossible for a future president to reverse that opinion alone, or reverse that decision without congressional approval. </p>
<h2>Biden’s actions could still matter</h2>
<p>Biden’s attempt to explicitly codify Roe would probably not succeed. </p>
<p>But Biden can recommend that Congress undertake many other legal reforms that are not constitutionally barred, and he could also take some limited actions based on his own authority. These could remove some obstacles to getting an abortion.</p><img src="https://counter.theconversation.com/content/225619/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>The authors do not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and have disclosed no relevant affiliations beyond their academic appointment.</span></em></p>While both Congress and the president have extensive legal powers, they cannot easily change the law to protect abortions under federal law.Naomi Cahn, Professor of Law, University of VirginiaAlan Morrison, Professor of public interest and public service law, George Washington UniversitySonia Suter, Professor of law, George Washington UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2226722024-03-20T12:22:19Z2024-03-20T12:22:19Z40 years ago, the Supreme Court broke the NCAA’s lock on TV revenue, reshaping college sports to this day<figure><img src="https://images.theconversation.com/files/582552/original/file-20240318-18-t8ggbg.jpg?ixlib=rb-1.1.0&rect=8%2C0%2C2986%2C1980&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">A cameraman films the Ohio State Buckeyes before a 2018 game.</span> <span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/cameraman-for-the-big-ten-network-television-show-the-news-photo/915548694">Michael Allio/Icon Sportswire/Getty Images</a></span></figcaption></figure><p>The Pac-12 is likely to be competing in its last March Madness, as realignment has <a href="https://www.latimes.com/sports/story/2023-09-01/pac-12-obituary">pushed 10 of its schools to other conferences</a>. What led the most decorated conference in the NCAA to dissolve so quickly? </p>
<p>This surprising development arguably dates back to a decades-old court decision. As the NCAA prepared for its tournament regional basketball semifinals in March 1984, the Supreme Court heard opening arguments in a case, <a href="https://www.law.cornell.edu/supremecourt/text/463/1311">NCAA v. Board of Regents of the University of Oklahoma</a>, that would change how Americans watch college sports.</p>
<p>After the court’s ruling, there were no limits on how much college football could be broadcast on TV, which previously was restricted to a <a href="https://www.oklahoman.com/story/sports/college/cowboys/2013/08/25/exploring-the-history-of-college-football-media-rights/60887384007/">maximum of six nationally broadcast games every two years</a>. The regionally focused conferences of the NCAA would become a national business, driven by television money from football. As a <a href="https://www.colorado.edu/ethnicstudies/people/core-faculty/jared-bahir-browsh">professor of critical sports studies</a>, I see the court ruling’s influence today with the downfall of the Pac-12.</p>
<h2>A history of televised college sports</h2>
<p>Even during TV’s experimental era of the 1930s, college sports were an attraction. The first televised college football game was <a href="https://www.ncaa.com/news/ncaa/article/2023-08-04/college-football-history-notable-firsts-and-milestones#:%7E:text=The%20first%20college%20football%20game%20on%20TV%20was%20between%20Fordham,NBC%20and%20aired%20on%20W2XBS.">broadcast in 1939</a>. By 1950, a few schools, including <a href="https://www.thedp.com/article/2021/01/penn-football-ncaa-television-controversy-1951">the University of Pennsylvania and Notre Dame</a>, had signed deals to air their football games regionally.</p>
<p>But that changed in 1951, when the NCAA took control of football television rights – and, in an effort to protect attendance at games, <a href="https://timesmachine.nytimes.com/timesmachine/1951/01/13/84672687.html?login=smartlock&auth=login-smartlock&pageNumber=19">attempted to eliminate live TV broadcasts</a>. Some universities, unsurprisingly, weren’t thrilled with the news. Penn told the association it would continue airing games, but gave up when it was <a href="https://timesmachine.nytimes.com/timesmachine/1951/11/20/87281672.html?pageNumber=27">threatened with sanctions</a>. </p>
<p>The NCAA eventually relented later that year, <a href="https://www.footballarchaeology.com/p/1951-and-college-footballs-first">allowing sold-out games to be shown on TV</a>. That led to the first coast-to-coast broadcast of a live sporting event, when Duke visited the University of Pittsburgh for a football game in September 1951.</p>
<p><a href="https://125.nd.edu/moments/small-screen-debut-1952-vs-oklahoma/">By 1952</a>, the NCAA allowed one national game to be broadcast each week, and in 1953, it allowed NBC to provide <a href="https://floridagators.com/news/2023/10/26/football-carters-corner-florida-georgia-game-a-TV-staple-70-years-after-small-screen-debut.aspx">“panorama” coverage of regional games</a>. In 1955, the NCAA acquiesced to pressure from conferences, including the Big Ten, and increased the availability of regional games, offering one national game for eight weeks and <a href="https://timesmachine.nytimes.com/timesmachine/1955/03/15/83353580.html?pageNumber=35">regional games the other five weeks of the season</a>.</p>
<p>Throughout this time, the <a href="https://en.as.com/ncaa/the-reason-why-college-football-bowl-games-are-called-bowl-games-n/">bowl games</a> – such as the Rose Bowl, which started in 1902 as part of a holiday festival – remained independent of the NCAA’s policy. The exposure from these games proved to university administrators that televised college sports could be lucrative and boost applications.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/582550/original/file-20240318-16-mvepy.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="In a black-and-white image, an NBC cameraman is seen filming a Rose Bowl game in Pasadena, California, in 1970." src="https://images.theconversation.com/files/582550/original/file-20240318-16-mvepy.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/582550/original/file-20240318-16-mvepy.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=439&fit=crop&dpr=1 600w, https://images.theconversation.com/files/582550/original/file-20240318-16-mvepy.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=439&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/582550/original/file-20240318-16-mvepy.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=439&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/582550/original/file-20240318-16-mvepy.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=552&fit=crop&dpr=1 754w, https://images.theconversation.com/files/582550/original/file-20240318-16-mvepy.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=552&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/582550/original/file-20240318-16-mvepy.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=552&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">The Rose Bowl was broadcast on TV in the early 1970s, when the NCAA severely restricted regular season broadcasts.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/camera-during-a-circa-1970s-rose-bowl-game-in-pasadena-news-photo/98749899">Robert Riger/Getty Images</a></span>
</figcaption>
</figure>
<p>Tired of the restrictions on media exposure and revenue during the regular season, several universities got together in 1977 to form the <a href="https://www.nytimes.com/1981/08/23/sports/tv-issue-dividing-football-colleges.html">College Football Association</a> and challenge the NCAA’s control of television rights. Two years later, the CFA began negotiating a television contract with NBC – while the NCAA was <a href="https://www.youtube.com/watch?v=-VYmEb44o0U">in the midst of negotiations with CBS and ABC</a>. </p>
<p>The organizations were on a collision course. By 1981, the CFA <a href="https://www.nytimes.com/1981/08/22/sports/rival-football-unit-approves-tv-pact.html">agreed to a contract with NBC</a>, and the NCAA declared that any CFA members who participated in the contract would be <a href="https://www.nytimes.com/1981/08/22/sports/rival-football-unit-approves-tv-pact.html">sanctioned in all sponsored sports</a>. Two CFA member schools, the University of Oklahoma and the University of Georgia, immediately <a href="https://www.oyez.org/cases/1983/83-271">filed suit to gain control of their television rights</a>.</p>
<h2>From the gridiron to the Supreme Court</h2>
<p>After both district and circuit courts ruled that the broadcast restrictions qualified as unfair restraint on the free market, the NCAA appealed to the Supreme Court. Oral arguments took place on March 20, 1984. By June, the court had ruled against the NCAA, allowing the CFA to oversee media contracts for its members. </p>
<p>By 1996, <a href="https://www.nytimes.com/1996/06/01/sports/college-football-its-power-eroding-cfa-will-disband.html">the major conferences broke from the CFA</a>, which ceased operations in 1997, and began negotiating on their own in an environment that now included a number of national and regional networks <a href="https://www.oklahoman.com/story/sports/college/cowboys/2013/08/25/exploring-the-history-of-college-football-media-rights/60887384007/">interested in broadcasting college football</a>. </p>
<p>In 1987, NCAA member schools also voted to allow conferences with two divisions of at least six teams to hold a conference championship that wouldn’t count against their game limit. This motivated conferences to gain control of their television rights and <a href="https://www.si.com/college/2014/05/16/conference-championship-games-rule-origin">leverage a championship game for more money</a>.</p>
<h2>A flood of money</h2>
<p>As conferences took control of their media rights, TV networks continued to pour money into college football and were soon joined by streaming services. The Big Ten alone commands over <a href="https://www.nytimes.com/2022/08/19/sports/ncaafootball/big-ten-tv-deal-student-athletes.html">US$1 billion</a> in media rights, up from $10 million in 1996. </p>
<p>In addition to the conference media rights, the bowl games and College Football Playoff negotiated separate contracts – the latter of which was signed with ESPN in February 2024 for <a href="https://apnews.com/article/cfp-espn-34efc26e96a0596547b8b0dbcfb3287a">$1.3 billion a year</a> over six years. </p>
<p>This flood of money comes at a time when <a href="https://www.sportico.com/leagues/college-sports/2023/americans-favor-college-athletes-pay-harris-poll-1234734402/">67% of Americans</a> question the relationship between the NCAA, conferences, colleges and student-athletes. The NCAA has allowed athletes to profit from their <a href="https://www.ncaa.org/news/2021/6/30/ncaa-adopts-interim-name-image-and-likeness-policy.aspx">name, imagine and likeness since 2021</a>, after several states legalized the practice. The same year, NCAA initiated new rules <a href="https://www.si.com/college/2021/04/14/ncaa-transfers-rule-change-football-basketball">giving athletes more freedom to transfer</a>.</p>
<p>In spite of these changes, the NCAA faces several lawsuits that challenge the <a href="https://www.espn.com/college-sports/story/_/id/39485414/nlrb-lawsuits-mounting-legal-challenges">nonemployee status of student-athletes</a>. Formerly regional conferences have become national businesses, and it’s becoming harder to argue that college athletes are amateurs as their talent brings in more and more revenue for schools. </p>
<h2>The Conference of Champions connection</h2>
<p>So, what does this have to do with the Pac-12 as it faces extinction? Everything. In 2022, the Big Ten negotiated a historic deal that would pay schools, including Pac-12 defectors University of Southern California and University of California Los Angeles, <a href="https://www.uscannenbergmedia.com/2022/09/13/the-big-ten-breakdown-how-uscs-move-to-the-big-ten-will-affect-the-school-the-fans-and-players-alike/#:%7E:text=In%202021%2C%20the%20average%20Pac,dollars%20annually%20from%20that%20deal.">between $80 million and $100 million a year from media rights</a>. </p>
<p>Even without the Los Angeles market, Pac-12 administrators tried to cash in, countering ESPN’s $30 million-a-school offer with <a href="https://arizonasports.com/story/3531384/big-12-yormark-brought-urgency-tv-deal-pac-12-didnt">one valued at $50 million a year</a>.</p>
<p>But ESPN quickly walked, and when the only deal on the table was a short-term one with Apple TV for just $25 million per school, eight more universities <a href="https://www.si.com/college/2023/08/11/pac-12-espn-media-rights-negotiations-50-million-ask-per-report">left for other conferences</a> offering more lucrative deals. This is why the conference with the most NCAA championships may not have another opportunity to add to its trophy case in 2025.</p>
<p>Although many people saw changes on the horizon, few could have imagined this much “madness” when the court ruled in favor of the University of Oklahoma back in 1984 The nearly 75-year television tug of war isn’t over, and the money it generates will continue to transform college sports. Money has seemingly toppled tradition, <a href="https://www.latimes.com/sports/story/2023-09-01/pac-12-obituary">as the Pac-12 schools walk away from 108 years of history</a>.</p><img src="https://counter.theconversation.com/content/222672/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Jared Bahir Browsh does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>March Madness might look very different if not for the Supreme Court.Jared Bahir Browsh, Assistant Teaching Professor of Critical Sports Studies, University of Colorado BoulderLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2262022024-03-19T20:42:27Z2024-03-19T20:42:27ZTexas immigration law in legal limbo, with intensifying fight between Texas and the US government over securing the Mexico border<figure><img src="https://images.theconversation.com/files/582914/original/file-20240319-18-3mjl2y.jpg?ixlib=rb-1.1.0&rect=502%2C0%2C5479%2C3970&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">A Texas National Guard soldier watches over a group of migrants who crossed the Rio Grande from Mexico in Eagle Pass, Texas, on Dec. 18, 2023. </span> <span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/texas-national-guard-soldier-watches-over-a-group-of-more-news-photo/1865364688?adppopup=true">John Moore/Getty Images</a></span></figcaption></figure><p>The U.S. Supreme Court <a href="https://thehill.com/regulation/court-battles/4542285-supreme-court-texas-law-state-police-to-arrest-migrants/">issued an opinion on March 19, 2024, that Texas can</a> – at least for now – have <a href="https://www.keranews.org/texas-news/2023-12-18/gov-abbott-signs-bill-that-makes-unauthorized-entry-a-state-crime">state authorities</a> <a href="https://www.texastribune.org/2024/02/15/texas-immigration-law-sb4-border-court-hearing/">deport undocumented migrants</a>, which has traditionally been the federal government’s responsibility. </p>
<p>Three liberal judges dissented from the opinion that temporarily backed Texas’ controversial new law, known as Senate Bill 4. </p>
<p>“That law upends the federal-state balance of power that has existed for over a century, in which the national government has had exclusive authority over entry and removal of noncitizens,” Supreme Court justices Sonia Sotomayor, Elena Kagan and Ketanji Brown Jackson wrote in their dissent.</p>
<p>The Biden administration had tried to block Texas’ enforcement of SB 4, maintaining that the state law is “flatly inconsistent with federal law,” <a href="https://thehill.com/regulation/court-battles/4540053-supreme-court-pause-texas-law-migrants/">according to a letter</a> U.S. Solicitor General Elizabeth Prelogar wrote to the Supreme Court justices. </p>
<p>The Supreme Court’s decision <a href="https://www.nytimes.com/2024/03/19/us/supreme-court-texas-immigration.html">tossed the question of SB 4</a> to an appeals court for a ruling. With this 6-3 ruling, the justices also foreshadowed how they could ultimately rule on SB 4 if a ruling by the 5th Circuit Court of Appeals is itself appealed to the Supreme Court in the near future. Late on March 19, <a href="https://www.reuters.com/world/us/us-supreme-court-wont-halt-texas-law-illegal-border-crossings-2024-03-19/">the 5th Circuit barred enforcement</a> of the law until it heard arguments in the case.</p>
<p>This decision follows shortly after a failed Senate proposal to tighten border security and make it tougher for people to get asylum in the U.S. It also coincides with Americans’ rising <a href="https://www.axios.com/2024/02/27/immigration-americans-top-problem-us-poll-election">concern about immigration</a>.</p>
<p>Texas Gov. Greg Abbott has been battling with the Biden administration since 2021 over the state’s ability to secure its border with Mexico. Under Abbott’s leadership, <a href="https://www.voanews.com/a/republicans-governors-national-guard-and-the-texas-border-what-to-know-/7467727.html">Texas has sent Texas National Guard</a> troops and state troopers to its 1,254-mile-long border with Mexico. Texas is the only border state that has built its own wall, partially dividing itself from Mexico. Texas has also constructed <a href="https://nypost.com/2024/02/09/news/texas-on-track-to-build-more-border-wall-in-state-than-trump-gov-abbotts-says/">more than 100 miles</a> of other barriers along the border.</p>
<p>I <a href="https://www.bakerinstitute.org/expert/mark-p-jones">am a scholar</a> of Texas politics and government at Rice University’s Baker Institute. Texas’ attempts to control its border with Mexico and intervene on immigration issues – historically both the responsibility of the federal government – derive in part from the fact that many Texans believe that their Lone Star State is unique. </p>
<p>Texas, for starters, is the largest U.S. state among the lower 48, geographically speaking, and the second-most populous after California. It has a distinct state culture and the history of being an independent republic. </p>
<p>Today, Texas is the most powerful and influential red state, pushing back against the Biden administration on many policy issues. It is also home to a small but growing political movement advocating for Texas to secede from the U.S. and become an independent country.</p>
<p>There is a great deal of truth to the popular saying that everything is bigger in Texas.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/578708/original/file-20240228-28-ctnbfw.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="A man is seen from the side, holding both an American flag and a Texas flag, which is red and blue with one white star." src="https://images.theconversation.com/files/578708/original/file-20240228-28-ctnbfw.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/578708/original/file-20240228-28-ctnbfw.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/578708/original/file-20240228-28-ctnbfw.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/578708/original/file-20240228-28-ctnbfw.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/578708/original/file-20240228-28-ctnbfw.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/578708/original/file-20240228-28-ctnbfw.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/578708/original/file-20240228-28-ctnbfw.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">People protest Texas Gov. Greg Abbott’s immigration and border policies in Eagle Pass, Texas, in February 2024.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/counter-protesters-wave-flags-across-the-street-from-local-news-photo/1978653675?adppopup=true">Michael Gonzalez/Getty Images</a></span>
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<h2>Border security battles</h2>
<p>Over the past several months, Texas has become increasingly enmeshed in a series of skirmishes with the Biden administration over border security and immigration. Abbott, bolstered by <a href="https://uh.edu/hobby/txprimary2024/">Republican voters</a> and the unanimous support of Texas Republicans who dominate the state Legislature, has made Texas more involved in day-to-day border security and immigration enforcement than any state in recent history. </p>
<p>In December 2023, Abbott signed SB 4, which made it a state crime to cross the border illegally and also gives Texas judges the power to deport undocumented migrants. SB 4 will now be implemented, at least until the 5th Circuit Court of Appeals reaches a decision in April.</p>
<p>Abbott’s border security interventions are funded by a 2021 state initiative called <a href="https://gov.texas.gov/operationlonestar">Operation Lone Star</a>. During the program’s first two years, Texas spent <a href="https://www.governing.com/now/2-years-and-4b-later-what-we-know-about-operation-lone-star">US$4.4 billion</a> on a multifaceted strategy that includes, for example, sending Texas <a href="https://gov.texas.gov/news/post/governor-abbott-expands-border-security-operations-in-eagle-pass#:%7E:text=The%20Texas%20Military%20Department%20acquired,created%20by%20the%20Biden%20Administration.">National Guard troops</a> to the border. In some cases, these National Guard <a href="https://thehill.com/homenews/state-watch/4416126-texas-us-legal-standoff-eagle-pass-border/">troops have blocked U.S. Border Patrol agents</a> from patrolling the border. </p>
<p>Now, Texas is spending <a href="https://everytexan.org/2023/10/27/third-special-spending-updated-spending-limits-mean-more-options-for-lawmakers/">$5.1 billion</a> on trying to patrol the border from 2023 through 2025. </p>
<p>This doesn’t include the additional $1.5 billion Texas has allocated for expansion of its <a href="https://www.houstonchronicle.com/politics/texas/article/border-wall-deportation-bills-18480062.php">border wall</a> over the next few years. </p>
<p>Since 2022, Texas has sent more than 100,000 immigrants who arrived in Texas to <a href="https://gov.texas.gov/news/post/texas-transports-over-100000-migrants-to-sanctuary-cities">liberal cities such as New York and Chicago</a>. </p>
<p>And in 2023, Texas constructed a <a href="https://apnews.com/article/texas-buoys-border-immigration-12bc8abddef1c9384b25222b92d0840b">buoy barrier in the middle of the Rio Grande</a>, although a federal appeals court ruled in December that Texas must <a href="https://www.cnn.com/2023/12/01/politics/federal-appeals-court-orders-texas-to-remove-controversial-border-buoys-from-rio-grande/index.html">remove those barriers</a> from the river. </p>
<p>The Biden administration has <a href="https://www.houstonchronicle.com/politics/texas/article/biden-lawsuit-border-law-18588009.php">challenged</a> virtually all of these actions in court.</p>
<p>The federal government argues that Texas’ border and immigration activity is unconstitutional, since only the federal government can enforce immigration law. The <a href="https://thehill.com/homenews/state-watch/4416126-texas-us-legal-standoff-eagle-pass-border/">federal government maintains</a> that the new Texas immigration law that allows state authorities to deport migrants also would interfere with the federal asylum process. </p>
<p>In response, Texas says that its border and immigration work is legal, in part because the federal government cannot adequately secure the border. Abbott and other Republicans characterize migrants crossing into Texas as an “invasion,” which they say gives Texas the right to defend itself, as <a href="https://gov.texas.gov/news/post/governor-abbott-issues-statement-on-texas-constitutional-right-to-self-defense">they say the U.S. Constitution allows</a>. </p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/578723/original/file-20240228-24-kgno9h.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="A middle aged white man in a white shirt sits in a. wheelchair and shakes the hand of a soldier who wears a camo uniform, in a row of other people in camp." src="https://images.theconversation.com/files/578723/original/file-20240228-24-kgno9h.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/578723/original/file-20240228-24-kgno9h.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/578723/original/file-20240228-24-kgno9h.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/578723/original/file-20240228-24-kgno9h.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/578723/original/file-20240228-24-kgno9h.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/578723/original/file-20240228-24-kgno9h.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/578723/original/file-20240228-24-kgno9h.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Texas Gov. Greg Abbott tours the U.S.-Mexico border in Eagle Pass in May 2022.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/texas-governor-greg-abbott-tours-the-us-mexico-border-at-news-photo/1240862283?adppopup=true">Allison Dinner/AFP via Getty Images</a></span>
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<h2>What’s unique about Texas</h2>
<p>Understanding Texas’ particular history and Texans’ sense of pride for their state helps to better understand the context behind this current conflict. </p>
<p>In Texas, you can’t travel far without seeing the Texas flag fluttering outside of houses and business storefronts. It is quite common to see people carrying Texas flag-themed Koozies, or wearing Texas flag shirts and hats. </p>
<p>Texas is one of the only U.S. states that went directly from being an independent republic – from 1836 to 1845 – to getting statehood. More than <a href="https://www.tshaonline.org/texas-day-by-day/entry/220">nine out of 10 Texans</a> voted for Texas to become part of the U.S. in 1845. </p>
<p>Texas has also been led continuously by a Republican governor since 1992, when George W. Bush was first elected. No Democrat has won any statewide race in Texas since 1994. </p>
<p>Today, Texas’ executive branch, led by Abbott, Lt. Gov. Dan Patrick and Attorney General Ken Paxton, is the country’s most powerful and vocal opponent of the Biden administration. </p>
<h2>A push to secede</h2>
<p>While the Texas state government is challenging the federal government’s immigration and border powers, there has also been a <a href="https://www.texastribune.org/2023/11/15/texas-secession-texit/">rise in support for</a> a political group called the <a href="https://tnm.me/">Texas Nationalist Movement</a>, which since 2005 has been advocating for Texas to secede from the U.S.</p>
<p>Texas’ Republican political leaders have not embraced this secession movement, often called “TEXIT.” Recently, Matt Rinaldi, the ultra-conservative chair of the Texas Republican Party, kept a Texas secession proposition <a href="https://www.tpr.org/government-politics/2023-12-28/texas-gop-rejects-ballot-question-asking-if-state-should-secede">off the Republican primary ballot</a>. </p>
<p>Abbott and other Texas Republican politicians agree with former conservative Supreme Court Justice Antonin Scalia, who <a href="https://www.politico.com/blogs/ben-smith/2010/02/scalia-no-to-secession-025119">wrote in a letter in 2006,</a> “If there was any constitutional issue resolved by the Civil War, it is that there is no right to secede.”</p>
<p>But these same Republicans still want Texas to have greater state autonomy from the federal government. </p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/578703/original/file-20240228-22-c5eetx.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="The words 'Greetings from Texas' are seen on a colorful illustration, with a large red star, blue bulls and smaller images of fruit and flowers." src="https://images.theconversation.com/files/578703/original/file-20240228-22-c5eetx.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/578703/original/file-20240228-22-c5eetx.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=386&fit=crop&dpr=1 600w, https://images.theconversation.com/files/578703/original/file-20240228-22-c5eetx.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=386&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/578703/original/file-20240228-22-c5eetx.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=386&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/578703/original/file-20240228-22-c5eetx.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=486&fit=crop&dpr=1 754w, https://images.theconversation.com/files/578703/original/file-20240228-22-c5eetx.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=486&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/578703/original/file-20240228-22-c5eetx.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=486&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">A vintage postcard from the 1950s offers greetings from Texas, often known as the Lone Star State.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/vintage-illustration-of-greetings-from-texas-the-lone-star-news-photo/583785842?adppopup=true">Found Image Holdings/Corbis via Getty Images</a></span>
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</figure>
<h2>Texas pride</h2>
<p>Abbott and other Texas Republicans continue to assert their right to secure the border and deport undocumented immigrants because they say the federal government is failing to do either effectively. </p>
<p>In addition, Republicans continue to use immigration and border security as a top issue to rally Republican and independent voters heading into the 2024 election. </p>
<p>And, while TEXIT is not going to happen, Texas Republicans will continue to vigorously promote Texas autonomy, appealing to their voters’ Texas pride. </p>
<p><em>This is an updated version of an <a href="https://theconversation.com/military-drones-are-swarming-the-skies-of-ukraine-and-other-conflict-hot-spots-and-anything-goes-when-it-comes-to-international-law-205898">article originally published on Feb. 29, 2024</a>.</em></p><img src="https://counter.theconversation.com/content/226202/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Mark P Jones does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>The Supreme Court announced that Texas can have state authorities arrest and deport undocumented migrants. A lower court has temporarily blocked the law.Mark P Jones, Joseph D. Jamail Chair in Latin American Studies & Baker Institute Political Science Fellow, Rice UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2258772024-03-19T12:22:46Z2024-03-19T12:22:46ZSupreme Court’s questions about First Amendment cases show support for ‘free trade in ideas’<figure><img src="https://images.theconversation.com/files/582619/original/file-20240318-16-9btkbx.jpg?ixlib=rb-1.1.0&rect=24%2C0%2C8218%2C5487&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Clouds float over the Supreme Court building on March 15, 2024.</span> <span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/the-supreme-court-of-the-united-states-building-is-seen-in-news-photo/2079442702">Celal Gunes/Anadolu via Getty Images</a></span></figcaption></figure><p>This term, the U.S. Supreme Court has heard oral arguments in a total of five cases involving questions about whether and how the First Amendment to the Constitution applies to social media platforms and their users. These cases are parts of a <a href="https://www.nytimes.com/2024/03/17/us/politics/trump-disinformation-2024-social-media.html">larger effort by conservative activists</a> to block what they claim is government censorship of people who seek to spread false information online.</p>
<p>The most recently heard case, on March 18, 2024, was <a href="https://www.scotusblog.com/case-files/cases/murthy-v-missouri-3/">Murthy v. Missouri</a>, about whether the federal government’s direct communication with social media platforms, specifically about online content relating to the COVID-19 public health emergency, violated the First Amendment rights of private citizens. </p>
<p>The case stemmed from the Biden administration’s efforts to combat misinformation that spread online, including on social media, during the pandemic. The plaintiffs said White House officials “<a href="https://www.supremecourt.gov/DocketPDF/23/23-411/293780/20231219192259919_23-411ts%20Murthy.pdf#page=41">threatened platforms with adverse consequences</a>” if they didn’t take down or limit the online visibility of inaccurate information – and that those threats amount to the unconstitutional suppression of free speech from private individuals who shared content that contained debunked conspiracy theories and contradicted scientific evidence.</p>
<p>It is not uncommon for government officials to informally pressure private parties, like social media platforms, into limiting, censoring or moderating speech by third parties. As Justice Amy Coney Barrett seemingly implied during the Murthy v. Missouri oral arguments, “vanilla encouragement” by government officials would be constitutionally permissible. But when the informal pressure turns into bullying, threats or coercion, it may trigger First Amendment protections, as the Supreme Court ruled in another case called <a href="https://www.oyez.org/cases/1962/118">Bantam Books v. Sullivan, from 1963</a>.</p>
<p>But the Biden administration said its effort to fight COVID misinformation was normal activity, in which the government is allowed to express its views to persuade others, especially in ways that advance the public interest. </p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/582616/original/file-20240318-30-o9gp3h.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="Two men in suits stand in a room with screens and flags." src="https://images.theconversation.com/files/582616/original/file-20240318-30-o9gp3h.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/582616/original/file-20240318-30-o9gp3h.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=422&fit=crop&dpr=1 600w, https://images.theconversation.com/files/582616/original/file-20240318-30-o9gp3h.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=422&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/582616/original/file-20240318-30-o9gp3h.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=422&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/582616/original/file-20240318-30-o9gp3h.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=530&fit=crop&dpr=1 754w, https://images.theconversation.com/files/582616/original/file-20240318-30-o9gp3h.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=530&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/582616/original/file-20240318-30-o9gp3h.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=530&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
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<span class="caption">President Joe Biden and Surgeon General Vivek Murthy attend a meeting in 2022.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/president-joe-biden-speaks-alongside-u-s-surgeon-general-dr-news-photo/1400488520">Kevin Dietsch/Getty Images</a></span>
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<p>Several justices seemingly agreed with the Biden administration and accepted its view that ordinary pressure to persuade is permissible. </p>
<p>More broadly, the Supreme Court has wrestled with the application of the First Amendment to cases involving social media platforms. Earlier this term, the court heard several cases that involved content moderation – both by the platforms themselves and by public officials using their own social media accounts. As Justice Elena Kagan put it during one round of oral arguments: “<a href="https://www.supremecourt.gov/oral_arguments/argument_transcripts/2023/22-324_fe9g.pdf#page=22">That’s what makes these cases hard</a>, is that there are First Amendment interests all over the place.” </p>
<p>Perhaps most fundamentally, the court seeks to evaluate the relationship between social media platforms and public officials.</p>
<h2>A public official or a private social media user?</h2>
<p>On March 15, the Supreme Court released its <a href="https://www.supremecourt.gov/opinions/23pdf/22-611_ap6c.pdf">unanimous decision in Lindke v. Freed</a> – another case involving social media platforms. The issue in that case was whether a public official can delete or block private individuals from commenting on the official’s social media profile or posts. </p>
<p>This case involved James Freed, the city manager of Port Huron, Michigan, and Facebook user Kevin Lindke. Freed initially created his Facebook profile before entering public office, but once he was appointed city manager, he began using the Facebook profile to communicate with the public. Freed eventually blocked Lindke from commenting on his posts after Lindke <a href="https://www.supremecourt.gov/opinions/23pdf/22-611_ap6c.pdf">“unequivocally express(ed) his displeasure with the city’s approach to the (COVID-19) pandemic.”</a></p>
<p>The court ruled that on social media, where users, including government officials, often mix personal and professional posts, “<a href="https://www.supremecourt.gov/opinions/23pdf/22-611_ap6c.pdf">it can be difficult to tell whether the speech is official or private</a>.” But the court unanimously found that if an official possesses “actual authority to speak” on behalf of the government, and if the person “purported to exercise that authority when” posting online, the post is a government action. In that case, the official cannot block users’ access to view or comment on it. </p>
<p>The court ruled that if the poster either does not have authority to speak for the government, or is not clearly exercising that authority when posting, then the message is private. In that situation, the poster can restrict viewing and commenting because that is an exercise of their own First Amendment rights. But when a public official posts in their official capacity, the poster must respect the First Amendment’s limitations placed on government. The court sent <a href="https://www.supremecourt.gov/opinions/23pdf/22-324_09m1.pdf">a similar case</a>, <a href="https://www.oyez.org/cases/2023/22-324">O'Connor-Ratcliff v. Garnier</a>, back to a lower court for reconsideration based on the ruling in the Lindke case.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/582623/original/file-20240318-28-nl95wg.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="An illustration of a person surrounded by phone and computer screens spouting all manner of information and noise." src="https://images.theconversation.com/files/582623/original/file-20240318-28-nl95wg.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/582623/original/file-20240318-28-nl95wg.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=450&fit=crop&dpr=1 600w, https://images.theconversation.com/files/582623/original/file-20240318-28-nl95wg.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=450&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/582623/original/file-20240318-28-nl95wg.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=450&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/582623/original/file-20240318-28-nl95wg.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=565&fit=crop&dpr=1 754w, https://images.theconversation.com/files/582623/original/file-20240318-28-nl95wg.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=565&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/582623/original/file-20240318-28-nl95wg.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=565&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
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<span class="caption">Online information can be a cacophony from which it is hard to discern truth and accuracy.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/illustration/information-attack-and-people-panic-negative-royalty-free-illustration/1347323610">Nadezhda Kurbatova/iStock / Getty Images Plus</a></span>
</figcaption>
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<h2>Who controls what’s online?</h2>
<p>At the root of the plaintiffs’ claims in both these cases is content moderation – whether a public official can moderate another user’s content by deleting their posts or blocking the user, and whether the federal government can interact with social media platforms to mitigate the spread of debunked conspiracy theories and scientifically disprovable narratives about the pandemic, for instance.</p>
<p>Ironically, though conservatives argue that the federal government cannot interact with the social media platforms to influence their content moderation, Florida and Texas – states governed by Republican majorities in the statehouse and Republican governors – enacted state laws that seek to restrict the platforms’ own content moderation.</p>
<p>While the laws in each state differ slightly, they <a href="https://knightcolumbia.org/content/in-cases-involving-florida-and-texas-social-media-laws-knight-institute-urges-supreme-court-to-reject-extreme-arguments-made-by-states-and-platforms">share similar provisions</a>. First, both laws contain “must-carry provisions,” which “prohibit social media platforms from removing or limiting the visibility of user content in certain circumstances,” according to the Knight First Amendment Institute at Columbia University.</p>
<p>Second, both laws require the social media platforms to provide individualized explanations to any user whose content is moderated by the platform. Both laws were passed to combat the false perception that the platforms <a href="https://www.theguardian.com/media/2021/feb/01/facebook-youtube-twitter-anti-conservative-claims-baseless-report-finds">disproportionately silence conservative speech</a>.</p>
<p>The Florida and Texas laws were challenged in two cases whose oral arguments were heard by the Supreme Court in February 2024: <a href="https://www.oyez.org/cases/2023/22-277">Moody v. NetChoice</a> and <a href="https://www.oyez.org/cases/2023/22-555">NetChoice v. Paxton</a>, respectively. Florida and Texas argued that they can regulate the platforms’ content moderation policies and processes, but the platforms argued that these laws infringe on their editorial discretion, which is protected by well-established First Amendment precedent.</p>
<p>During oral argument in both cases, the justices appeared skeptical of both laws. As Chief Justice John Roberts stated, the First Amendment <a href="https://www.supremecourt.gov/oral_arguments/argument_transcripts/2023/22-555_omq2.pdf">prohibits the government, not private entities, from censoring speech</a>. Florida and Texas argued that they enacted these laws to protect the free speech of their citizens by limiting the platforms’ ability to moderate content. </p>
<p>But social media users do not have any First Amendment protections on the platforms, because private entities, like Facebook, are free to moderate the content on their platforms as they see fit. Roberts was quick to respond to Texas and Florida: “The First Amendment restricts what the government can do, and what the government’s doing here is saying you must do this, you must carry these people.” </p>
<h2>Where are the online boundaries of free speech?</h2>
<p>Collectively, these cases demonstrate the Supreme Court’s interest in defining the boundaries of First Amendment protections as they relate to social media platforms and their users. Moreover, the court seems focused on establishing the limits of the relationship between government and social media platforms.</p>
<p>The justices’ questions during the NetChoice cases suggest that they are skeptical of government regulation that forces social media platforms to carry certain content. In this way, the justices seem poised to affirm the principle that government cannot directly or formally force an individual or, in this case, a private company, to convey a message that it does not wish to carry. </p>
<p>But the justices’ questions during Murthy v. Missouri seem to suggest that it is not a violation of the First Amendment for government officials to informally interact or communicate with social media platforms in an attempt to persuade them not to carry material the government dislikes.</p>
<p>Considering all of these cases together, the court seems posed to further promote a robust “free trade in ideas,” which was a theory first invoked in 1919 by Justice Oliver Wendell Holmes in <a href="https://supreme.justia.com/cases/federal/us/250/616/">Abrams v. United States</a>. In Lindke v. Freed, the court identified the distinction between private speech on social media platforms by a public official, which is protected by the First Amendment, and professional speech, which is subject to First Amendment limitations that protect others’ rights. </p>
<p>In the NetChoice cases, the court seems ready to limit a state’s ability to directly compel social media platforms to convey messages that they may moderate. And in Murthy v. Missouri, the justices seem ready to affirm that while indirect compulsion may be unconstitutional, ordinary pressures to persuade social media platforms are permissible. </p>
<p>This promotion of a robust marketplace of ideas appears to stem from neither giving the government extra powers to shape public discourse, nor excluding government from the conversation altogether.</p><img src="https://counter.theconversation.com/content/225877/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Wayne Unger does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>These cases have asked the justices to consider how to apply some of the most sweeping constitutional protections – those of free speech – to an extremely complex online communication environment.Wayne Unger, Assistant Professor of Law, Quinnipiac UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2222152024-03-14T12:44:55Z2024-03-14T12:44:55ZTrump nearly derailed democracy once − here’s what to watch out for in reelection campaign<figure><img src="https://images.theconversation.com/files/580558/original/file-20240307-22-g07jxw.jpeg?ixlib=rb-1.1.0&rect=0%2C9%2C6390%2C4780&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">'We did win this election,' said then-President Donald Trump at the White House early on Nov. 4, 2020, on what was still election night.</span> <span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/this-combination-of-pictures-created-on-november-04-2020-news-photo/1229450800?adppopup=true">Mandel Ngan/AFP via Getty Images)</a></span></figcaption></figure><p>Elections are the bedrock of democracy, essential for choosing representatives and holding them accountable. </p>
<p>The U.S. is a flawed democracy. The Electoral College and the Senate make voters in less populous states far more influential than those in the more populous: <a href="https://www.washingtonpost.com/graphics/politics/how-fair-is-the-electoral-college/">Wyoming residents have almost four times the voting power of Californians</a>. </p>
<p>Ever since the Civil War, however, reforms have sought to remedy other flaws, ensuring that citizenship’s full benefits, including the right to vote, were provided to formerly enslaved people, women and Native Americans; establishing the <a href="https://supreme.justia.com/cases/federal/us/369/186/">constitutional standard of one person, one vote</a>; and eliminating barriers to voting through the 1965 <a href="https://crsreports.congress.gov/product/pdf/R/R43626/15">Voting Rights Act</a>. </p>
<p>But the Supreme Court has, in recent years, <a href="https://www.oyez.org/cases/2012/12-96">narrowly construed the Voting Rights Act</a> and <a href="https://www.oyez.org/cases/2018/18-422">limited courts’ ability to redress gerrymandering</a>, the drawing of voting districts to ensure one party wins. </p>
<p>The 2020 election revealed even more disturbing threats to democracy. As I explain in <a href="https://www.routledge.com/How-Autocrats-Seek-Power-Resistance-to-Trump-and-Trumpism/Abel/p/book/9781032625843">my book</a>, “How Autocrats Seek Power,” Donald Trump lost his reelection bid in 2020 but refused to accept the results. He tried every trick in the book – and then some – to alter the outcome of this bedrock exercise in democracy.</p>
<p>A recent New York Times story reports that when it comes to <a href="https://www.nytimes.com/2024/03/05/us/politics/trump-presidency-election-voters.html">Trump’s time in office and his attempt to overturn the 2020 election</a>, “voters often have a hazy recall of one of the most tumultuous periods in modern politics.” This, then, is a refresher about Trump’s handling of the election, both before and after Nov. 3, 2020.</p>
<p>Trump began with a classic autocrat’s strategy – casting doubt on elections in advance to lay the groundwork for challenging an unfavorable outcome.</p>
<p>Despite his efforts, Trump was unable to control or change the election results. And that was because of the work of others to stop him.</p>
<p>Here are four things Trump tried to do to flip the election in his favor – and examples of how he was stopped, both by individuals and democratic institutions.</p>
<p><strong>Anticipating defeat</strong> </p>
<p>Expecting to lose in November 2020, in part because of his disastrous handling of the Covid-19 pandemic, <a href="https://time.com/5514115/trump-rampant-voter-fraud-texas/">Trump proclaimed that</a> “all over the country, especially in California, voter fraud is rampant.” He called <a href="https://www.nytimes.com/2020/05/20/us/politics/trump-michigan-vote-by-mail.html">mail ballots “a very dangerous thing</a>.” Jared Kushner, his son-in-law and aide, declined to “commit one way or the other” about whether the election would be held in November, <a href="https://www.washingtonpost.com/nation/2020/05/13/jared-kushner-election-delay-coronavirus/">because of the COVID pandemic</a>. No efforts to postpone the election ensued.</p>
<p>Trump warned that Russia and China would “<a href="https://www.nytimes.com/2020/08/26/us/politics/mail-in-voting-foreign-intervention.html">be able to forge ballots</a>,” <a href="https://www.washingtonpost.com/opinions/2020/08/26/trumps-corruption-election-just-took-hit-theres-still-problem/">a myth echoed by Attorney General William Barr</a>. Trump illegally threatened to have <a href="https://www.cnn.com/2020/08/20/politics/trump-election-day-sheriffs/index.html">law enforcement officers at polling places</a>. He falsely asserted that Kamala Harris “doesn’t meet the requirements” for serving as vice president <a href="https://www.nytimes.com/2020/09/03/us/politics/trump-2020-election.html?searchResultPosition=3">because her parents were immigrants</a>. Asked if he would agree to a transition if he lost, he responded: “There won’t be a transfer, frankly. <a href="https://www.nytimes.com/2020/09/23/us/politics/trump-power-transfer-2020-election.html">There’ll be a continuation</a>.” </p>
<p><strong>Threatening litigation</strong></p>
<p>Aware that polls showed Biden ahead by 8 percentage points, Trump declared, “As soon as that election is over, <a href="https://www.washingtonpost.com/nation/2020/11/02/trump-lawyers-election-biden-pennsylvania/">we’re going in with our lawyers</a>,” and they did just that. Adviser Steve Bannon correctly predicted that on Election Night, “Trump’s gonna walk into the Oval (Office), tweet out, ‘I’m the winner. <a href="https://www.washingtonpost.com/opinions/2022/07/14/steve-bannon-leaked-audio-trump-jan-6-investigation/">Game over, suck on that</a>.’” </p>
<p>Trump followed the script, asserting at 2:30 am: “we did win this election. … <a href="https://www.washingtonpost.com/politics/2021/07/13/book-excerpt-i-alone-can-fix-it/">This is a major fraud in our nation</a>,” though the actual results weren’t clear until days later, when, on Nov. 7, the networks declared Biden had won.</p>
<p>Although many advisers said he had lost, Trump kept claiming fraud, repeating Rudy Giuliani’s false allegation that Dominion election machines had switched votes – <a href="https://www.nytimes.com/2022/03/03/us/politics/trump-jan-6-criminal-case.html;%20https://www.nytimes.com/2021/12/15/us/politics/trump-meadows-republicans-congress-jan-6.html;%20https://apnews.com/article/fox-news-dominion-lawsuit-trial-trump-2020-0ac71f75acfacc52ea80b3e747fb0afe">a lie for which Fox News agreed to pay $787 million</a> to settle the defamation case brought by Dominion.</p>
<p><strong>Taking direct action</strong></p>
<p>Trump allies pressured state legislators to create false, <a href="https://www.washingtonpost.com/politics/2022/06/06/fake-trump-electors-ga-told-shroud-plans-secrecy-email-shows/">“alternative” slates of electors</a> as a key strategy for overturning the election. Trump contemplated declaring an emergency, ordering the military to seize voting machines and <a href="https://www.washingtonpost.com/national-security/trump-justice-department-overturn-election/2021/01/22/b7f0b9fa-5d1c-11eb-a976-bad6431e03e2_story.html">replacing the attorney general with a yes-man</a> who would pressure state legislatures to change their electoral votes. </p>
<p><strong>Encouraging violence</strong></p>
<p>Trump summoned supporters to protest the Jan. 6 certification by Congress, boasted it would be “wild,” and encouraged them to march on the Capitol and <a href="https://www.washingtonpost.com/dc-md-va/2020/11/14/million-maga-march-dc-protests/">“fight like hell,” promising to accompany them</a>. Once they had attacked the Capitol, he delayed for four hours before asking them to stop.</p>
<p>Yet Trump’s efforts to overturn the election failed. </p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/580570/original/file-20240307-22-qqa3qk.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="A large crowd of people with someone holding a sign that says 'Trump won the legal vote!'" src="https://images.theconversation.com/files/580570/original/file-20240307-22-qqa3qk.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/580570/original/file-20240307-22-qqa3qk.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=395&fit=crop&dpr=1 600w, https://images.theconversation.com/files/580570/original/file-20240307-22-qqa3qk.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=395&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/580570/original/file-20240307-22-qqa3qk.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=395&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/580570/original/file-20240307-22-qqa3qk.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=496&fit=crop&dpr=1 754w, https://images.theconversation.com/files/580570/original/file-20240307-22-qqa3qk.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=496&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/580570/original/file-20240307-22-qqa3qk.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=496&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Thousands of Trump supporters, fueled by his spurious claims of voter fraud, flooded the nation’s capital on Jan. 6, 2021, protesting Congress’ expected certification of Joe Biden’s White House victory.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/crowds-of-people-gather-as-us-president-donald-trump-speaks-news-photo/1230451810?adppopup=true">Mandel Ngan/AFP via Getty Images</a></span>
</figcaption>
</figure>
<h2>Resisting Trump</h2>
<p>Trump claimed that voting by mail produced rampant fraud, but state legislatures let <a href="https://apnews.com/article/health-elections-coronavirus-pandemic-election-2020-campaign-2016-f6b627a5576014a55a7252e542e46508">voters vote by mail or in drop boxes</a> because of the pandemic. Postal Service workers delivered those ballots despite actions taken by Trump’s postmaster general, Louis DeJoy, that made processing and delivery more difficult.</p>
<p><a href="https://apnews.com/article/virus-outbreak-election-2020-ap-top-news-politics-us-news-dc647214b5fc91cc29e776d8f4a4accf">DeJoy denied any sabotage</a> in testimony before Congress. </p>
<p>Most state election officials, regardless of party, loyally did their jobs, resisting Trump’s pressure to falsify the outcome. Courts rejected all but one of <a href="https://www.usatoday.com/in-depth/news/politics/elections/2021/01/06/trumps-failed-efforts-overturn-election-numbers/4130307001/">Trump’s 62 lawsuits aimed at overturning the election</a>. Government lawyers refused to invoke the Insurrection Act and authorize the military to seize voting machines. The <a href="https://www.forbes.com/sites/nicholasreimann/2020/12/19/trump-reportedly-asked-advisors-about-deploying-military-to-overturn-election/?sh=486535eece2b">military remained scrupulously apolitical</a>. And Vice President Mike Pence presided over the certification, in which 43 Republican senators and 75 Republican representatives joined all the Democrats to <a href="https://www.washingtonpost.com/national-security/trump-justice-department-overturn-election/2021/01/22/b7f0b9fa-5d1c-11eb-a976-bad6431e03e2_story.html">declare Biden the winner</a>.</p>
<p>That experience contains invaluable lessons about what to expect in 2024 and how to defend the integrity of elections.</p><img src="https://counter.theconversation.com/content/222215/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Richard L. Abel does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Donald Trump tried to overturn the 2020 election results. But the work of others, from lawmakers to judges to regular citizens, stopped him. There are cautionary lessons in that for the 2024 election.Richard L. Abel, Michael J. Connell Distinguished Professor of Law Emeritus, University of California, Los AngelesLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2248922024-03-13T12:38:53Z2024-03-13T12:38:53ZWhat the numbers say about diversity on corporate boards<figure><img src="https://images.theconversation.com/files/581302/original/file-20240312-28-1hong4.jpg?ixlib=rb-1.1.0&rect=956%2C204%2C8157%2C5260&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Corporate diversity efforts have resulted in more women and minorities sitting on boards. </span> <span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/photo/bright-clean-modern-style-conference-room-royalty-free-image/1667099947?phrase=corporate++board+directors&adppopup=true">Getty Images</a></span></figcaption></figure><p>Through the decades, corporate boards have been mostly white and mostly male. </p>
<p>That started changing in the early 1970s. Fueled by the historic gains of the Civil Rights Movement that broke down racial and gender barriers, a variety of social groups such as the <a href="https://finance.yahoo.com/news/promising-students-benefit-commitment-developing-170000223.html">National Black MBA Association</a> and the <a href="https://now.org/">National Organization for Women</a> pressured corporations to build diversity programs into their management structures. </p>
<p>Over the years, a dramatic change has occurred. My latest research on the corporate boards of the top 50 companies from 2011 to 2023 shows that the percentage of whites dropped to 73.6%, the percentage of men dropped to 65.3% and, rather remarkably, the percentage of white men dropped below 50%, to 49.5%. </p>
<p>My research included reviewing the published names of the members of the boards of directors of the top 50 companies on the 2011 and 2023 Fortune 500 lists, as well as information on company websites about each of these hundreds of directors. I coded for gender, ethnicity and educational background. </p>
<p>Though the patterns differ for each of these demographic groups, the percentages of white women, Asian, Hispanic and Black Americans increased by different amounts as the percentage of white men decreased.</p>
<h2>White female directors</h2>
<p>The percentage of white females serving on boards at the top-50 companies increased from 16.8% in 2011 to 24.1% in 2023. All of these white women had undergraduate degrees, and almost two-thirds had advanced degrees, including in business, law and medicine. Many of them were <a href="https://fortune.com/2023/06/05/fortune-500-companies-2023-women-10-percent/">current or former CEOs</a> of Fortune 500 companies.</p>
<p>Notably, and related to the increase in white female directors, between 2000 and 2020 there was <a href="https://whorulesamerica.ucsc.edu/power/diversity_update_2020.html#fnr20">a dramatic increase</a> in the number of white female CEOs.</p>
<p>There were almost as many white female directors in 2023 as there were Blacks, Asian Americans and Latinos combined. In terms of sheer numbers, white men have been replaced by white women more than by any other single group.</p>
<h2>Asian American directors</h2>
<p>The changes can be seen clearly in a comparison between the makeup of the top-50 company boards <a href="https://whorulesamerica.ucsc.edu/diversity/unexpected_increase_in_diversity.html">between 2011 and 2023</a>. </p>
<p><iframe id="rQ4Ho" class="tc-infographic-datawrapper" src="https://datawrapper.dwcdn.net/rQ4Ho/1/" height="400px" width="100%" style="border: none" frameborder="0"></iframe></p>
<p>During that time period, the percentage of Asian Americans more than tripled, from 1.8% to 6.1%. The percentages more than doubled for Asian American men, and increased almost ninefold for Asian American females. </p>
<p>Strikingly, 17 of the 20 Asian American men who were directors in 2023 were of Indian heritage – and most but not all were born in India. Only six of the 15 Asian American women were of Indian heritage, and seven were of Chinese background.</p>
<p>Asian Americans make up about 7% of the population, so they are now only slightly underrepresented on the top Fortune boards.</p>
<h2>Black and Hispanic directors</h2>
<p>Black Americans also showed a sizable increase, from 9.4% in 2011 to 15.1% in 2023. They, too, showed a bigger jump for women, from 1.9% to 5.9%, than for men, from 7.4% to 9.2%.</p>
<p>Black people made up about 13.6% of the population in 2023, so they were slightly overrepresented on these Fortune boards. </p>
<p><a href="https://www.mckinsey.com/featured-insights/diversity-and-inclusion/race-in-the-workplace-the-frontline-experience">McKinsey & Company</a>, a management consulting firm, conducted a study of 53 corporations, most of which were Fortune 500 companies. The study, released in 2022, found that there were far fewer Black men and women in the pipeline leading to the CEO office than on the boards. That pipeline includes jobs such as managers, vice presidents and others on leadership teams.</p>
<figure class="align-left ">
<img alt="A Black woman is speaking as she sits in a chair on stage." src="https://images.theconversation.com/files/581313/original/file-20240312-26-kv4ftg.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/581313/original/file-20240312-26-kv4ftg.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=420&fit=crop&dpr=1 600w, https://images.theconversation.com/files/581313/original/file-20240312-26-kv4ftg.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=420&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/581313/original/file-20240312-26-kv4ftg.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=420&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/581313/original/file-20240312-26-kv4ftg.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=528&fit=crop&dpr=1 754w, https://images.theconversation.com/files/581313/original/file-20240312-26-kv4ftg.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=528&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/581313/original/file-20240312-26-kv4ftg.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=528&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Michelle Jordan, AT&T chief diversity officer, talks about equity and inclusion during a 2023 conference in Atlanta.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/michelle-jordan-chief-diversity-officer-at-t-speaks-onstage-news-photo/1779377976?adppopup=true">Paras Griffin/WireImage</a></span>
</figcaption>
</figure>
<p>This suggests that these companies are trying to appear diverse through the makeup of their boards, even as they haven’t diversified the executive ranks.</p>
<p>Hispanic Americans showed only a slight increase in representation on the boards, from 4.7% in 2011 to 5.2% in 2023, with women almost doubling their representation, from 1.1% to 2.1%, and men decreasing from 3.6% to 3.1%. </p>
<p>Hispanic Americans make up about 19% of the U.S. population. As a group, they were very much underrepresented on corporate boards.</p>
<p>Many of those in all of the groups I looked at had attended elite colleges and universities, either as undergraduates or for postgraduate work. Recent evidence showing that Hispanic men and women have been <a href="https://edtrust.org/resource/private-universities-havent-increased-diversity/?emci=6e70acb4-83d5-ee11-85f9-002248223794&emdi=425387aa-41d6-ee11-85f9-002248223794&ceid=456745%5D">vastly underrepresented at elite colleges</a> over the past two decades suggests that few are making it through the pipeline from these schools to Fortune 500 boards.</p>
<h2>Recent attacks on diversity</h2>
<p>With <a href="https://theconversation.com/a-2003-supreme-court-decision-upholding-affirmative-action-planted-the-seeds-of-its-overturning-as-justices-then-and-now-thought-racism-an-easily-solved-problem-208807">the 2023 Supreme Court decision</a> against affirmative action in higher education – and <a href="https://www.wsj.com/us-news/law/diversity-equity-dei-companies-blum-2040b173">subsequent lawsuits</a> against the practices that some corporations have used to address inequality – the civil rights gains in higher education and on corporate boards are in jeopardy of being reversed by conservative resistance. </p>
<p>In fact, many big companies have been “backing away from efforts to promote diversity, equity and inclusion in their ranks,” according to a <a href="https://www.washingtonpost.com/business/2023/04/01/woke-capitalism-esg-dei-climate-investment/">Washington Post corporate culture reporter</a>.</p>
<p>The pattern that I have found in board composition between the 1990s and 2023 is consistent with data from 2013 to 2023 that was published by <a href="https://www.spencerstuart.com/research-and-insight/sp-500-new-director-and-diversity-snapshot">Spencer Stuart</a>, an executive search firm. It found that in 2013, only 39% of newly appointed directors were women and underrepresented minorities.</p>
<p>In the next decade, the percentage of new diversity appointments to boards increased dramatically, from the 39% in 2013, to 60% in 2018, to 86% in 2021, and then tapered off to 82% in 2022 and 75% in 2023.</p>
<p>Based on my findings and those of other researchers, it is likely that the ups and downs of diversity on corporate boards will serve as an indicator of the success – or failure – of ongoing efforts to increase inclusion in all walks of American life.</p><img src="https://counter.theconversation.com/content/224892/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Richie Zweigenhaft does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Since the 1970s, corporate boards have included more women and minorities. But those gains are likely to change after a US Supreme Court ruling and increased conservative resistance.Richie Zweigenhaft, Professor of Psychology, Emeritus, Guilford CollegeLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2249302024-03-07T13:31:57Z2024-03-07T13:31:57ZI watched Hungary’s democracy dissolve into authoritarianism as a member of parliament − and I see troubling parallels in Trumpism and its appeal to workers<figure><img src="https://images.theconversation.com/files/580025/original/file-20240305-20-3hi9y2.jpeg?ixlib=rb-1.1.0&rect=20%2C10%2C3431%2C2478&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">President Donald Trump shakes hands with Hungarian Prime Minister Viktor Orbán during a meeting in the Oval Office on May 13, 2019, in Washington, D.C. </span> <span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/president-donald-trump-shakes-hands-with-hungarian-prime-news-photo/1148899659?adppopup=true">Mark Wilson/Getty Images</a></span></figcaption></figure><p><a href="https://www.reuters.com/world/hungarian-pm-orban-meet-trump-march-8-florida-2024-03-04/">Hungarian leader</a> <a href="https://www.gmfus.org/news/when-people-elect-strongman-rule">and strongman Viktor Orbán</a>, who presided over the radical decline of democracy in his country, is scheduled to meet with former President Donald Trump, now the presumptive GOP presidential nominee, at Trump’s Mar-a-Lago resort on March 8, 2024.</p>
<p>Orbán has been <a href="https://www.bbc.com/news/world-europe-67832416">Hungary’s prime minister</a> since 2010. Under his leadership, the country became the first nondemocracy in the European Union – an “<a href="https://budapestbeacon.com/full-text-of-viktor-orbans-speech-at-baile-tusnad-tusnadfurdo-of-26-july-2014/">illiberal state</a>,” as Orbán proudly declared. Trump expressed his admiration for Orbán and his authoritarian moves during their meeting at the White House in 2019.</p>
<p>“You’re respected all over Europe. Probably, like me, a little bit controversial, but that’s OK,” <a href="https://www.theguardian.com/us-news/2019/may/13/trump-latest-viktor-orban-hungary-prime-minister-white-house">Trump said</a>. “You’ve done a good job and you’ve kept your country safe.”</p>
<p>I’ve followed their mutual romance with illiberalism for a long time. Although I am now in the U.S. <a href="https://ces.fas.harvard.edu/people/scheiring-gabor">as an academic</a>, I was <a href="https://www.gaborscheiring.com/">elected to the Hungarian Parliament</a> in 2010 when Orbán’s rule started.</p>
<p>As the U.S. braces for a potential second Trump presidency, Americans may rightly wonder: Would Trump’s America mirror Orbán’s Hungary in its slide toward authoritarianism?</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/580208/original/file-20240306-18-11nm7c.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="Three people standing before a crowd holding stop signs." src="https://images.theconversation.com/files/580208/original/file-20240306-18-11nm7c.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/580208/original/file-20240306-18-11nm7c.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=399&fit=crop&dpr=1 600w, https://images.theconversation.com/files/580208/original/file-20240306-18-11nm7c.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=399&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/580208/original/file-20240306-18-11nm7c.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=399&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/580208/original/file-20240306-18-11nm7c.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=501&fit=crop&dpr=1 754w, https://images.theconversation.com/files/580208/original/file-20240306-18-11nm7c.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=501&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/580208/original/file-20240306-18-11nm7c.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=501&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Member of Parliament Gábor Scheiring, right, with two colleagues, all wearing signs that say ‘Enough,’ chained themselves to the Parliament building in a December 2011 protest against the increasing autocracy of Prime Minister Viktor Orbán.</span>
<span class="attribution"><span class="source">Photo Akos Stiller</span></span>
</figcaption>
</figure>
<h2>Authoritarianism from within</h2>
<p>I can still feel the pleasant spring breeze on my skin as I walked up the National Assembly’s stairs in my freshly bought suit. As newly elected members of Parliament, my Green Party colleagues and I stepped into our roles with high hopes and detailed plans to fix Hungary’s ailing economy and move toward sustainability.</p>
<p>I also remember the cold winter day a year and half later when we <a href="https://www.reuters.com/article/idUSL6E7NN14R/">chained ourselves to the parliament building</a>. It was a demonstration against the hollowing of parliamentary work and democratic backsliding under Orbán’s rule.</p>
<p>If the parliament is the political home of democracy, Hungary’s was vacant by 2012.</p>
<p>Orbán and his party in power hijacked democratic institutions. The nationwide right-wing media network is a crucial component of this authoritarian power. As the Voice of America <a href="https://www.voanews.com/a/hungarian-prime-minister-shows-why-american-right-embraces-him/6687500.html">reported in 2022</a>, Orbán’s allies “have created a pervasive conservative media ecosystem that dominates the airwaves and generally echoes the positions of the Orbán government.” </p>
<p>His government gerrymandered local districts and allowed voters to <a href="https://www.nytimes.com/2022/03/31/world/europe/hungary-viktor-orban-election.html">register outside their home districts</a>, both aimed at favoring Orbán and his party. The government also staffed <a href="https://www.reuters.com/article/idUSKBN1X8244/">the public prosecutor’s office with loyalists</a>, ensuring that any misconduct by those in power stays hidden. </p>
<p>Republicans in the U.S. have followed a similar trajectory with their support of Trump as his rhetoric <a href="https://apnews.com/article/trump-biden-democracy-election-2024-f2f824f056ae9f81f4e688fe590f41b4">grows more authoritarian</a>. Trump says if he wins the election, he wants to be <a href="https://apnews.com/article/trump-hannity-dictator-authoritarian-presidential-election-f27e7e9d7c13fabbe3ae7dd7f1235c72">“a dictator” for one day</a>. A recent poll shows that <a href="https://thehill.com/homenews/campaign/4453457-74-percent-of-republicans-say-its-fine-for-trump-to-be-dictator-for-a-day/">74% of Republicans surveyed</a> said it would be a good idea for Trump to “be a dictator only on the first day of his second term.”</p>
<p>Orbán has spent years <a href="https://www.nytimes.com/2018/05/01/world/europe/hungary-viktor-orban-judges.html">undermining the independence of Hungary’s judiciary</a>, ensuring its rulings are <a href="https://www.nytimes.com/2018/12/12/world/europe/hungary-courts.html">friendly to his government and allies</a>. While still an independent institution, the U.S. Supreme Court – with <a href="https://apnews.com/article/donald-trump-14th-amendment-immunity-supreme-court-d3f001f66c5c3e85302b8772753ed769">three Trump-nominated justices</a> – has become a pillar of Trumpism, handing down rulings overturning the <a href="https://www.supremecourt.gov/opinions/21pdf/19-1392_6j37.pdf">constitutional right to abortion</a> and <a href="https://www.supremecourt.gov/opinions/17pdf/16-111_j4el.pdf">limiting civil rights</a>.</p>
<p>Fox, OANN, and other right-wing media ensure that large parts of America see <a href="https://www.npr.org/2024/02/05/1229295278/the-fracturing-and-expansion-of-conservative-media-ahead-of-the-presidential-ele">the world through a Trumpian lens</a>.</p>
<p>Authoritarian populists tilt the democratic playing field to favor themselves and their personal and political interests. Subverting democracy from the inside without violent repression allows leaders like Orbán and Trump to pretend they are democratic. This authoritarianism from within creates chokepoints, where the opposition isn’t crushed, but it has a hard time breathing.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/580035/original/file-20240305-24-ljckit.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="A demonstrator holding a placard that in Hungarian says 'Down with the Fascist government.'" src="https://images.theconversation.com/files/580035/original/file-20240305-24-ljckit.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/580035/original/file-20240305-24-ljckit.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/580035/original/file-20240305-24-ljckit.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/580035/original/file-20240305-24-ljckit.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/580035/original/file-20240305-24-ljckit.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/580035/original/file-20240305-24-ljckit.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/580035/original/file-20240305-24-ljckit.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">A placard reads ‘Down with the Fascist government’ in front of the Parliament building in Budapest on June 14, 2021, during a demonstration against the Hungarian government’s draft bill seeking to ban the ‘promotion’ of homosexuality and sex changes.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/participant-holds-a-placard-reading-down-with-the-fascist-news-photo/1233454607?adppopup=true">Gergely Besenyei/AFP via Getty Images</a></span>
</figcaption>
</figure>
<h2>No democracy with division</h2>
<p>How can strongmen get away with these antidemocratic politics? If there is one lesson from Hungary, it is this: Democracy is not sustainable in a divided society where many are left behind economically.</p>
<p>The real power of authoritarian populists like Trump and Orban lies not in the institutions they hijack but in the novel electoral support coalition they create.</p>
<p>They bring together two types of supporters. Some hardcore, authoritarian-right voters are motivated by bigotry and hatred rooted in their fear of globalization’s cultural threats. However, the most successful right-wing populist forces <a href="https://library.fes.de/pdf-files/bueros/wien/19110-20220517.pdf">integrate an outer layer of primarily working-class voters</a> hurt by globalization’s economic threats.</p>
<p>Throughout the 20th century, Democrats in the U.S. and left-of-center parties in Europe provided a political home for those fearing economic insecurity. This fostered a political system that engendered equality and a healthy social fabric, giving people reason to care for liberal democratic institutions. </p>
<p>However, when the economy fails to deliver, <a href="https://www.pewresearch.org/global/2010/04/07/hungary-dissatisfied-with-democracy-but-not-its-ideals/">disillusionment with capitalism</a> morphs into an apathy toward liberal democracy.</p>
<p>If the liberal center appears uncaring, authoritarian populists can mobilize voters against both the cultural and economic <a href="https://doi.org/10.1017/S0007123424000024">threats posed by globalization</a>.</p>
<p>In Hungary, the first signs of authoritarianism appeared in economically left-behind rural areas and provincial small and medium towns well before Orbán’s 2010 victory. While these provincial towns suffered from increasing mortality, deindustrialization and income loss, the parties of the liberal center continued to sing hymns about the benefits of globalization, detached from the everyday experience of economic insecurity. </p>
<p>As I showed in my book, neglecting this suffering was the democratic center’s <a href="https://lareviewofbooks.org/article/hybrid-authoritarianism/">politically lethal failure</a>.</p>
<p>By today, Hungary’s liberal and left-of-center parties have retreated to the biggest cities, leaving their former provincial political strongholds up for grabs for the radical right. The same is taking place in the U.S., with the <a href="https://www.politico.com/news/magazine/2023/11/04/new-republican-party-working-class-coalition-00122822">Republicans becoming a party of the working class</a> and nonmetropolitan America.</p>
<p>The success of authoritarian populism in Hungary might seem disheartening. However, there is a silver lining: Those committed to democracy in the U.S. still have time to learn from Hungary’s mistakes.</p><img src="https://counter.theconversation.com/content/224930/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>I was a Member of the Hungarian Parliament for the Greens from 2010 to 2014.</span></em></p>One of Donald Trump’s favorite politicians is the Hungarian authoritarian leader Viktor Orbán. Would a country led again by Trump embrace similar antidemocratic politics?Gábor Scheiring, Fellow, Harvard UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2247182024-03-04T18:49:30Z2024-03-04T18:49:30ZThe Constitution sets some limits on the people’s choices for president - but the Supreme Court rules it’s unconstitutional for state governments to decide on Trump’s qualifications<figure><img src="https://images.theconversation.com/files/579002/original/file-20240229-24-47x21c.jpg?ixlib=rb-1.1.0&rect=174%2C174%2C2495%2C1526&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">A 1935 painting depicts the 1787 meeting that adopted the U.S. Constitution.</span> <span class="attribution"><a class="source" href="https://commons.wikimedia.org/wiki/File:%27The_Adoption_of_the_U.S._Constitution_in_Congress_at_Independence_Hall,_Philadelphia,_Sept._17,_1787%27_(1935),_by_John_H._Froehlich.jpg">John H. Froehlich via Wikimedia Commons</a></span></figcaption></figure><p>When the Supreme Court ruled on March 4, 2024, that former President Donald Trump <a href="https://www.supremecourt.gov/opinions/23pdf/23-719_19m2.pdf">could appear on state presidential ballots</a> for the 2024 election, it did not address an idea that seemed simple and compelling when Justice Brett Kavanaugh raised it during the Feb. 8, 2024, oral arguments in the case:</p>
<blockquote>
<p>“<a href="https://www.supremecourt.gov/oral_arguments/argument_transcripts/2023/23-719_5he6.pdf">What about the idea that we should think about democracy</a>, think about the right of the people to elect candidates of their choice, of letting the people decide?”</p>
</blockquote>
<p>In essence, he was asking whether it would be better to let the people, rather than a court or a state official, decide whether a controversial candidate should return to the White House.</p>
<p>Kavanaugh had a point. Under the Constitution, the people can be – and are – trusted to make a great many important decisions.</p>
<p>But Kavanaugh also missed a key point that I learned in years of <a href="https://my.wlu.edu/directory/profile?ID=x1345">teaching about the presidency, the Constitution and impeachment</a>. Right from the very beginning of the nation, and persisting until today, there have been rules that limit the ability of the people to choose their leaders.</p>
<h2>The Constitutional Convention of 1787</h2>
<figure class="align-right zoomable">
<a href="https://images.theconversation.com/files/579003/original/file-20240229-18-i9mxdb.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="A man in formal 18th century dress." src="https://images.theconversation.com/files/579003/original/file-20240229-18-i9mxdb.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/579003/original/file-20240229-18-i9mxdb.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=767&fit=crop&dpr=1 600w, https://images.theconversation.com/files/579003/original/file-20240229-18-i9mxdb.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=767&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/579003/original/file-20240229-18-i9mxdb.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=767&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/579003/original/file-20240229-18-i9mxdb.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=964&fit=crop&dpr=1 754w, https://images.theconversation.com/files/579003/original/file-20240229-18-i9mxdb.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=964&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/579003/original/file-20240229-18-i9mxdb.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=964&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Gouverneur Morris.</span>
<span class="attribution"><a class="source" href="https://commons.wikimedia.org/wiki/File:Portrait_of_Gouverneur_Morris_(1752-1816),_1817.jpg">Ezra Ames via Wikimedia Commons</a></span>
</figcaption>
</figure>
<p>The drafters of the Constitution already had the discussion Kavanaugh was trying to start during the oral arguments.</p>
<p>In July 1787, the delegates to the Constitutional Convention, where the Constitution was written, were discussing impeachment. Gouverneur Morris – a Pennsylvania delegate who <a href="https://www.neh.gov/article/confessions-gouverneur-morris">wrote the preamble to the Constitution</a>, including its opening phrase, “<a href="https://constitutioncenter.org/the-constitution/preamble">We the People of the United States</a>” – made an argument Kavanaugh’s question would echo 237 years later.</p>
<p>When discussing <a href="https://www.smithsonianmag.com/history/inside-founding-fathers-debate-over-what-constituted-impeachable-offense-180965083/">whether it should be possible for Congress to remove the president</a>, Morris said no.</p>
<p>The people could decide for themselves, he said. Making the president subject to impeachment, Morris said, “<a href="https://press-pubs.uchicago.edu/founders/documents/a1_2_5s7.html">will hold him in such dependence</a> that he will be no check on the Legislature, (nor) a firm guardian of the people and of the public interest.” With regular national elections, Morris said, a flawed chief executive could be removed from office by the voters. Morris added, “<a href="https://press-pubs.uchicago.edu/founders/documents/a1_2_5s7.html">In case he should be reelected</a>, that will be sufficient proof of his innocence.”</p>
<figure class="align-right zoomable">
<a href="https://images.theconversation.com/files/579005/original/file-20240229-16-zek6xd.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="A man in formal 18th century dress." src="https://images.theconversation.com/files/579005/original/file-20240229-16-zek6xd.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/579005/original/file-20240229-16-zek6xd.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=699&fit=crop&dpr=1 600w, https://images.theconversation.com/files/579005/original/file-20240229-16-zek6xd.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=699&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/579005/original/file-20240229-16-zek6xd.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=699&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/579005/original/file-20240229-16-zek6xd.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=879&fit=crop&dpr=1 754w, https://images.theconversation.com/files/579005/original/file-20240229-16-zek6xd.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=879&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/579005/original/file-20240229-16-zek6xd.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=879&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">George Mason.</span>
<span class="attribution"><a class="source" href="https://commons.wikimedia.org/wiki/File:George_Mason.jpg">Dominic W. Boudet after John Hesselius via Wikimedia Commons</a></span>
</figcaption>
</figure>
<p>But George Mason, a Virginia delegate and slaveholder who <a href="https://www.smithsonianmag.com/history/george-mason-forgotten-founder-he-conceived-the-bill-of-rights-64408583/">championed the idea for the Bill of Rights</a>, was ready with a response. Pointing out that true and fair elections were key to the new nation’s success, Mason noted that if criminal conduct by some future president involved corruption of the election process, the people might have trouble deciding the culprit’s fate in a subsequent election:</p>
<blockquote>
<p>“<a href="https://press-pubs.uchicago.edu/founders/documents/a1_2_5s7.html">Shall any man be above Justice?</a> Above all shall that man be above it, who can commit the most extensive injustice? … Shall the man who has practised corruption and by that means procured his appointment in the first instance, be suffered to escape punishment, by repeating his guilt?”</p>
</blockquote>
<p><a href="https://press-pubs.uchicago.edu/founders/documents/a1_2_5s7.html">Others chimed in with similar replies</a>: Benjamin Franklin of Pennsylvania; James Madison of Virginia, a future president; Elbridge Gerry of Massachusetts, a future vice president; and Edmund Randolph of Virginia, a future U.S. attorney general and secretary of state.</p>
<p>The records of the Constitutional Convention say this at the conclusion of that section of debate: </p>
<blockquote>
<p>“Mr. Gouverneur Morris’s opinion had been changed by the arguments used in the discussion. … Our Executive was not like a Magistrate having a life interest, much less like one having an hereditary interest in his office. He may be bribed by a greater interest to betray his trust … The Executive ought therefore to be impeachable for treachery; Corrupting his electors, and incapacity.” </p>
</blockquote>
<p>The outcome of that discussion resulted in the first of several rules that prevent the American people from choosing just anyone as the president.</p>
<h2>Key restrictions</h2>
<p><a href="https://constitution.congress.gov/constitution/article-1/#article-1-section-3-clause-6">Section 3 of Article 1 of the Constitution</a> is the most direct result of the debate between Morris and Mason. It says that people, including the president, who are impeached and convicted can be barred from office.</p>
<p><a href="https://constitution.congress.gov/constitution/article-2/#article-2-section-1-clause-5">Section 1 of Article 2 of the Constitution</a> imposes more limits. It declares that some people <a href="https://constitution.congress.gov/constitution/article-2/#article-2-section-1-clause-5">simply can’t be president</a> – those not born U.S. citizens, those under age 35 and those who have lived less than 14 years of their lives in the U.S.</p>
<p>Eight decades later, Congress and the states agreed to add a new restriction: <a href="https://constitution.congress.gov/constitution/amendment-14/#amendment-14-section-3">Section 3 of the 14th Amendment</a>, ratified in 1868, says those seeking to hold federal and state offices who have previously taken an oath to support the Constitution <a href="https://theconversation.com/why-14th-amendment-bars-trump-from-office-a-constitutional-law-scholar-explains-principle-behind-colorado-supreme-court-ruling-219763">may not have attemped to subvert or overthrow the Constitution</a>.</p>
<p>And in 1951, the <a href="https://constitution.congress.gov/constitution/amendment-22/">22nd Amendment to the Constitution</a> was ratified, declaring that nobody who had been president for two terms could become president again.</p>
<p>All of these rules stand in the way of simply “letting the people decide,” as Kavanaugh suggested. Strictly speaking, those rules are not democratic. But they are intended to protect democracy itself.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/579006/original/file-20240229-18-uxjqr6.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="A large room with chairs and desks." src="https://images.theconversation.com/files/579006/original/file-20240229-18-uxjqr6.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/579006/original/file-20240229-18-uxjqr6.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=233&fit=crop&dpr=1 600w, https://images.theconversation.com/files/579006/original/file-20240229-18-uxjqr6.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=233&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/579006/original/file-20240229-18-uxjqr6.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=233&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/579006/original/file-20240229-18-uxjqr6.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=293&fit=crop&dpr=1 754w, https://images.theconversation.com/files/579006/original/file-20240229-18-uxjqr6.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=293&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/579006/original/file-20240229-18-uxjqr6.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=293&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">The U.S. Senate is one of the less democratic elements of the federal government.</span>
<span class="attribution"><a class="source" href="https://en.wikipedia.org/wiki/File:United_States_Senate_Floor.jpg">U.S. Senate via Wikimedia Commons</a></span>
</figcaption>
</figure>
<h2>Democracy isn’t always democratic</h2>
<p>There are plenty of provisions in the Constitution that run counter to simple democracy. </p>
<p>The Senate and the Electoral College give <a href="https://theconversation.com/why-does-the-electoral-college-exist-and-how-does-it-work-5-essential-reads-149502">extra power to states with relatively small populations</a>.</p>
<p>No Congress – even one whose members were each elected by huge majorities – can pass a law abridging freedom of religion or freedom of speech. If a Congress were to pass such a law, the Supreme Court, which has been called <a href="https://www.thirteen.org/wnet/supremecourt/democracy/history.html">the nation’s least democratic branch</a>, could declare it unconstitutional.</p>
<p>Democratic majorities in America are both empowered and constrained by the Constitution. The founders wanted the will of the people to be heard and respected but never given absolute power. Absolute power of any kind was to be checked by a complicated set of prohibitions and procedures.</p>
<p>Kavanaugh was wise to call attention to the fact that in a democracy, the preferences of the people get a high level of deference. Voters certainly can <a href="https://www.pewresearch.org/short-reads/2023/07/21/little-change-in-americans-views-of-trump-over-the-past-year/">judge the conduct and character of Donald Trump</a> – and many have done so, both favorably and unfavorably.</p>
<p>But George Mason was also right. When politicians corrupt the electoral process, or try to do so, it makes little sense to use elections as the mechanism to fix the problem. </p>
<p>The constitutional provisions for impeachment and the 14th Amendment make clear that people who are found guilty of serious wrongdoing while in office, or violate an oath to support the Constitution, are ineligible to hold high office thereafter. In short, the people can’t choose a Senate-convicted official or an oath-breaking insurrectionist, even if they want to. </p>
<p>America’s Constitution has long acknowledged that the preservation of the republic may, in some cases, require the disqualification of candidates and officeholders who commit crimes while in positions of power or participate in insurrection against the very government they have sworn to serve. </p>
<p>The Supreme Court has sidestepped the question of whether Trump’s actions disqualify him from office and declared instead that Congress must make that determination, under the various constitutional restrictions that continue to exist about who is allowed to serve as president. The practical effect of its decision will be to let the people decide this vital question in the coming presidential election.</p><img src="https://counter.theconversation.com/content/224718/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Robert A. Strong does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Right from the very beginning of the nation, there have been rules that limit the ability of the people to choose their leaders.Robert A. Strong, Emeritus Professor of Politics, Washington and Lee University; Senior Fellow, Miller Center, University of VirginiaLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2234262024-03-04T15:38:32Z2024-03-04T15:38:32ZSupreme Court says only Congress can bar a candidate, like Trump, from the presidency for insurrection − 3 essential reads<figure><img src="https://images.theconversation.com/files/579609/original/file-20240304-20-77h9ij.jpg?ixlib=rb-1.1.0&rect=49%2C49%2C8130%2C5408&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Journalists set up in front of the U.S. Supreme Court building on Feb. 8, 2024.</span> <span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/members-of-the-press-stake-out-outside-the-supreme-court-in-news-photo/1991622087">Aaron Schwartz/Xinhua via Getty Images</a></span></figcaption></figure><p>The U.S. Supreme Court has ruled, in a unanimous decision, that the <a href="https://www.supremecourt.gov/opinions/23pdf/23-719_19m2.pdf">state of Colorado cannot bar former President Donald Trump</a> from appearing on Colorado’s presidential ballot under the provisions of <a href="https://constitution.congress.gov/constitution/amendment-14/#amendment-14-section-3">Section 3 of the 14th Amendment</a> to the U.S. Constitution.</p>
<p>The text of <a href="https://constitution.congress.gov/constitution/amendment-14/">Section 3 of the 14th Amendment states</a>, in full:</p>
<blockquote>
<p>“No person shall be a Senator or Representative in Congress, or elector of President and Vice-President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.”</p>
</blockquote>
<p>The ruling said states may decide who is eligible to hold state offices, but <a href="https://www.supremecourt.gov/opinions/23pdf/23-719_19m2.pdf">only Congress may decide</a> who is eligible to hold federal offices.</p>
<p>Writing for The Conversation U.S. as far back as 2021, several scholars have explained aspects of this part of the Constitution, how it was intended, and the legal and political considerations surrounding its function. They give context to the court’s ruling and what it means for the country now.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/380248/original/file-20210122-17-ad7bzu.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="Pelosi signs a document with four people standing behind her, and American flags" src="https://images.theconversation.com/files/380248/original/file-20210122-17-ad7bzu.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/380248/original/file-20210122-17-ad7bzu.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/380248/original/file-20210122-17-ad7bzu.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/380248/original/file-20210122-17-ad7bzu.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/380248/original/file-20210122-17-ad7bzu.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/380248/original/file-20210122-17-ad7bzu.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/380248/original/file-20210122-17-ad7bzu.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Then-Speaker of the House Nancy Pelosi signs an article of impeachment against then-President Donald Trump on Jan. 13, 2021.</span>
<span class="attribution"><a class="source" href="https://media.gettyimages.com/photos/speaker-of-the-house-nancy-pelosi-signs-an-article-of-impeachment-picture-id1230572656?k=6&m=1230572656&s=612x612&w=0&h=V-BDhqZJ7pEUiqqfWq25M5pz4SND4vIJiq3wpFu6O7Q=">Stefani Reynolds/Getty Images</a></span>
</figcaption>
</figure>
<h2>1. A relatively recent development</h2>
<p>In early 2021, <a href="https://mckinneylaw.iu.edu/faculty-staff/profile-WCMS.cfm?Id=40">Gerard Magliocca</a>, a law professor at Indiana University, pointed out that up until that time, “<a href="https://theconversation.com/congress-could-use-an-arcane-section-of-the-14th-amendment-to-hold-trump-accountable-for-capitol-attack-153344">Section 3 of the 14th Amendment</a> was an obscure part of the U.S. Constitution.”</p>
<p>But this provision had an important purpose, he wrote:</p>
<blockquote>
<p>“It prohibits current or former military officers, along with many current and former federal and state public officials, <a href="https://theconversation.com/congress-could-use-an-arcane-section-of-the-14th-amendment-to-hold-trump-accountable-for-capitol-attack-153344">from serving in a variety of government offices</a> if they ‘shall have engaged in insurrection or rebellion’ against the United States Constitution.”</p>
</blockquote>
<p>The Supreme Court’s ruling did not decide whether Trump had or had not engaged in insurrection.</p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/congress-could-use-an-arcane-section-of-the-14th-amendment-to-hold-trump-accountable-for-capitol-attack-153344">Congress could use an arcane section of the 14th Amendment to hold Trump accountable for Capitol attack</a>
</strong>
</em>
</p>
<hr>
<h2>2. Justices focused on potential for national disarray</h2>
<p>During oral arguments on Feb. 8, 2024, several members of the Supreme Court focused on the fact that this case was about a Colorado decision to bar Trump from the ballot, which suggested that other states might come to their own conclusions if the court didn’t deliver a clear message that would apply nationwide.</p>
<p>As Notre Dame election law scholar <a href="https://law.nd.edu/directory/derek-muller/">Derek Muller</a> observed: </p>
<blockquote>
<p>“<a href="https://theconversation.com/supreme-court-skeptical-that-colorado-or-any-state-should-decide-for-whole-nation-whether-trump-is-eligible-for-presidency-223063">States are the ones who have the primary responsibility</a> of running presidential elections. And Colorado was leaning very heavily into this authority they have over which candidates to list on the ballot and how that can vary from state to state. The pushback from the Supreme Court in this case was to say, in essence, you’re not dealing with local or state interests, you’re not dealing with these state-specific procedures for how you list candidates on the ballot. You are interpreting a provision of the U.S. Constitution, and then you are applying it in your own state in a way that could affect what happens in other states.”</p>
</blockquote>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/supreme-court-skeptical-that-colorado-or-any-state-should-decide-for-whole-nation-whether-trump-is-eligible-for-presidency-223063">Supreme Court skeptical that Colorado − or any state − should decide for whole nation whether Trump is eligible for presidency</a>
</strong>
</em>
</p>
<hr>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/574469/original/file-20240208-20-2e10qo.jpeg?ixlib=rb-1.1.0&rect=86%2C0%2C5131%2C3472&q=45&auto=format&w=1000&fit=clip"><img alt="A police officer standing behind a barricade and in front of a large, white columned building." src="https://images.theconversation.com/files/574469/original/file-20240208-20-2e10qo.jpeg?ixlib=rb-1.1.0&rect=86%2C0%2C5131%2C3472&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/574469/original/file-20240208-20-2e10qo.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/574469/original/file-20240208-20-2e10qo.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/574469/original/file-20240208-20-2e10qo.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/574469/original/file-20240208-20-2e10qo.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/574469/original/file-20240208-20-2e10qo.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/574469/original/file-20240208-20-2e10qo.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Police place a fence at the U.S. Supreme Court on Feb. 8, 2024, before justices heard arguments over whether Donald Trump is ineligible for the 2024 ballot.</span>
<span class="attribution"><a class="source" href="https://newsroom.ap.org/detail/Election2024TrumpInsurrectionAmendment/05e2c7bc3615410b8088714a425193c9/photo?Query=trump%20supreme%20court&mediaType=photo&sortBy=arrivaldatetime:desc&dateRange=Anytime&totalCount=5319&currentItemNo=15">AP Photo/Jose Luis Magana</a></span>
</figcaption>
</figure>
<h2>3. The importance of consensus</h2>
<p>The court appears to have taken pains to get to a unanimous decision. Muller anticipated such a move. He said it was likely because of the potential effect on elections:</p>
<blockquote>
<p>“<a href="https://theconversation.com/us-supreme-court-decision-on-trump-colorado-ballot-case-monumental-for-democracy-itself-not-just-2024-presidential-election-220643">This is a binary choice</a> that either empowers the Republican candidate or prevents voters from choosing him. So when you have a choice in such stark, political and partisan terms, whatever the Supreme Court is doing is often going to be viewed through that lens by many voters. … (T)here will be as much effort as possible internally on the court to reach a consensus view to avoid that appearance of partisanship on the court, that appearance of division on the court. If there’s consensus, it’s harder for the public to … point the finger at one side or another.”</p>
</blockquote>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/us-supreme-court-decision-on-trump-colorado-ballot-case-monumental-for-democracy-itself-not-just-2024-presidential-election-220643">US Supreme Court decision on Trump-Colorado ballot case 'monumental' for democracy itself, not just 2024 presidential election</a>
</strong>
</em>
</p>
<hr>
<p><em>This story is a roundup of articles from The Conversation’s archives.</em></p><img src="https://counter.theconversation.com/content/223426/count.gif" alt="The Conversation" width="1" height="1" />
Experts explain the context behind the Supreme Court’s ruling on Donald Trump’s eligibility to appear on presidential ballots.Jeff Inglis, Politics + Society Editor, The Conversation USLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2224842024-03-04T13:38:53Z2024-03-04T13:38:53ZHow non-English language cinema is reshaping the Oscars landscape<figure><img src="https://images.theconversation.com/files/579014/original/file-20240229-28-jndcqr.png?ixlib=rb-1.1.0&rect=46%2C1%2C1153%2C715&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Best picture nominee 'Past Lives' was directed by South Korean-Canadian filmmaker Celine Song and has scenes in Korean and English.</span> <span class="attribution"><a class="source" href="https://media.gq.com/photos/64ea9f7905e3a8acb2fa7700/16:9/w_2560%2Cc_limit/MCDPALI_EC043.jpeg">A24/Everett Collection</a></span></figcaption></figure><p>Over the past few years, the Oscars have taken a decidedly international turn. </p>
<p>This year, of the 10 films nominated for an Academy Award for best picture, <a href="https://abc7news.com/oscars-2024-lily-gladstone-native-american-oppenheimer/14453217/">three of them</a> – “<a href="https://www.imdb.com/title/tt17009710/">Anatomy of a Fall</a>,” “<a href="https://www.imdb.com/title/tt13238346/">Past Lives</a>” and “<a href="https://www.imdb.com/title/tt7160372/">The Zone of Interest</a>” – are non-English language films. </p>
<p>In the first two decades of the Academy Awards, only three foreign films – all European – earned Oscar nominations: the 1938 French film “<a href="https://www.imdb.com/title/tt0028950/">La Grande Illusion</a>,” which was <a href="https://newrepublic.com/article/118332/world-war-i-film-la-grande-illusion">nominated for best picture</a>, or outstanding production, as it was then known; the 1944 Swiss film “<a href="https://www.imdb.com/title/tt0037899/">Marie Louise</a>,” which was the <a href="https://collider.com/oscars-first-non-american-film-win-marie-louise/">first foreign film to win an Academy Award</a>, for best screenplay; and the 1932 French film “<a href="https://www.imdb.com/title/tt0022599/">À nous la liberté</a>,” nominated for best production design.</p>
<p>As a <a href="https://miamioh.edu/profiles/cas/kerry-hegarty.html">scholar of film history</a>, I see the recent recognition of non-English language films as the result of demographic changes in the industry and within the Academy of Motion Picture Arts and Sciences itself. </p>
<h2>Hollywood’s dominance wanes</h2>
<p>During World War II, Hollywood experienced record financial success, with <a href="https://www.encyclopedia.com/arts/culture-magazines/motion-picture-industry-during-world-war-ii#Foreign_Markets">one-third of its revenue</a> coming from foreign markets – mainly the United Kingdom and Latin America. The industry leveraged the appeal of American movies to employ them as cultural ambassadors to promote democratic ideals. Notably, a popular film like “Casablanca” not only entertained audiences but also <a href="https://brightlightsfilm.com/casablanca-romance-propaganda/">served as potent anti-fascist propaganda</a>. </p>
<p>After the war, co-productions and distribution agreements with foreign studios opened new markets, <a href="https://www.mheducation.com/highered/product/film-history-introduction-thompson-bordwell/M9781260837476.html">boosting Hollywood’s economic influence</a> and reinforcing English language cinema’s global dominance. </p>
<p>However, by the late 1940s, Hollywood experienced some challenges: Studios lost an anti-trust case that <a href="https://www.hollywoodreporter.com/business/business-news/paramount-decrees-antitrust-hollywood-1235581215/">challenged their monopoly</a> over producing, distributing and exhibiting films, while television threatened to siphon away theatergoers. With studios undergoing major budget and production cuts, a 1949 Fortune magazine article posed the question “<a href="https://www.hollywoodreporter.com/business/business-news/paramount-decrees-antitrust-hollywood-1235581215/">Movies: The End of an Era?</a>” </p>
<p>During that same period, <a href="https://www.mheducation.com/highered/product/film-history-introduction-thompson-bordwell/M9781260837476.html">art film movements</a> in nations such as Sweden, France, Italy and Japan arose to contest Hollywood’s dominance, breathing new life into the cinematic arts. </p>
<p>These works <a href="https://www.pbs.org/wgbh/cultureshock/beyond/hollywood.html">contrasted sharply with Hollywood films</a>, many of which had become formulaic by the 1950s and were constrained by an outdated censorship code. </p>
<h2>A category of their own</h2>
<p>Between 1947 and 1956, foreign films received honorary Oscars, with <a href="https://www.mheducation.com/highered/product/film-history-introduction-thompson-bordwell/M9781260837476.html">France and Italy dominating the accolades</a>. In 1956, the category of “best foreign language film” was officially established as an annual recognition, marking a pivotal moment in Oscars history. </p>
<p>However, any film nominated in that category is also <a href="https://www.oscars.org/sites/oscars/files/96o_complete_rules.pdf">eligible to be nominated</a> in the broader best picture category. The only stipulation is that it needs to have had a theatrical run in a Los Angeles County commercial movie theater for at least seven consecutive days. </p>
<figure class="align-center ">
<img alt="Black and white photo of a middle-aged man running his hands through his hair while sitting in a chair next to a large camera." src="https://images.theconversation.com/files/579017/original/file-20240229-25-5t3mij.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/579017/original/file-20240229-25-5t3mij.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=469&fit=crop&dpr=1 600w, https://images.theconversation.com/files/579017/original/file-20240229-25-5t3mij.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=469&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/579017/original/file-20240229-25-5t3mij.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=469&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/579017/original/file-20240229-25-5t3mij.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=590&fit=crop&dpr=1 754w, https://images.theconversation.com/files/579017/original/file-20240229-25-5t3mij.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=590&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/579017/original/file-20240229-25-5t3mij.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=590&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Italian director Federico Fellini’s ‘La Strada’ won the first Academy Award for best foreign language film in 1957.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/federico-fellini-on-the-set-of-the-film-rome-shot-at-news-photo/956703168?adppopup=true">Louis Goldman/Gamma-Rapho via Getty Images</a></span>
</figcaption>
</figure>
<p>Until this year, only 10 foreign films have garnered this dual nomination. </p>
<p>In 2020, the South Korean film “<a href="https://www.imdb.com/title/tt6751668/">Parasite</a>” became the first non-English language film to win both best international feature film – formerly known as best foreign language film – and best picture. Director Bong Joon-Ho also won the award for best director that year. Accompanied by an interpreter, <a href="https://www.youtube.com/watch?v=ekMl5VHBH4I&ab_channel=Oscars">he gave his acceptance speech in Korean</a>. </p>
<p>During the 2019 Oscars, Mexican director Alfonso Cuarón – introduced in Spanish by actor Javier Bardem – accepted the Academy Award for what was then still called best foreign language film for his film “<a href="https://www.imdb.com/title/tt6155172/?ref_=nv_sr_srsg_1_tt_3_nm_4_q_roma">Roma</a>.” During his speech, he joked that he had grown up “<a href="https://www.youtube.com/watch?v=PHk957dxJsI&ab_channel=Oscars">watching foreign language films</a> and learning so much from them. … Films like ‘Citizen Kane,’ ‘Jaws,’ ‘Rashomon,’ ‘The Godfather’ and ‘Breathless.’” </p>
<h2>Breathing new life into film</h2>
<p>Cuarón’s comments wryly question why English is considered the default language of a global industry. They also highlight how the categories of “Hollywood film” and “foreign film” aren’t necessarily mutually exclusive.</p>
<p>As in the past, many of the filmmakers pushing the boundaries of the medium are from outside the U.S. This isn’t due to a lack of talent within the U.S.; instead, it’s <a href="http://dx.doi.org/10.1353/cj.2020.0041">largely due to a lack of institutional funding</a> for independent productions. </p>
<p>On the other hand, in countries such as France, Germany, Canada, South Korea and Iran, there are state-sponsored programs to support filmmakers. These programs, which aim to promote national cultural expression, <a href="https://doi.org/10.1093/screen/hjr014">allow for more experimentation</a>. </p>
<p>In recent decades, the cinematic landscape has been revitalized by movements from abroad, such as Denmark’s <a href="https://www.artforum.com/columns/dogma-95-201300/">Dogma 95 collective</a>, <a href="https://asia.nikkei.com/Life-Arts/Arts/How-South-Korea-became-the-home-of-noir-film">South Korea’s IMF noir genre</a> and <a href="https://www.curzon.com/journal/greek-weird-wave/">Greek Weird Wave films</a>. Filmmakers associated with these movements often transition to making English language cinema.</p>
<p>Take Yorgos Lanthimos, director of the Best Picture nominee “<a href="https://www.imdb.com/title/tt14230458/">Poor Things</a>.” Lanthimos <a href="https://collider.com/yorgos-lanthimos-greek-weird-wave/">first gained recognition</a> for his contributions to the Greek Weird Wave, a cinematic movement that uses absurdist humor to critique societal norms and power structures. It emerged during <a href="https://www.cnbc.com/2015/06/24/greece-debt-crisis-timeline-it-all-started-in-2001.html">the country’s economic crisis in the 2010s</a>. </p>
<p>Similarly, “<a href="https://www.imdb.com/title/tt6751668/">Parasite</a>” director Bong Joon-ho, known for his earlier Korean language films, is emblematic of the IMF noir movement, which explored the profound repercussions of <a href="https://courses.washington.edu/globfut/req%20readings/KimFinchKoreanStudies.pdf">the late 1990s financial crisis in South Korea</a> that was caused by policies dictated by the International Monetary Fund.</p>
<figure class="align-center ">
<img alt="Balding middle-aged man with beard and red jacket." src="https://images.theconversation.com/files/579018/original/file-20240229-18-efk0yl.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/579018/original/file-20240229-18-efk0yl.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=397&fit=crop&dpr=1 600w, https://images.theconversation.com/files/579018/original/file-20240229-18-efk0yl.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=397&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/579018/original/file-20240229-18-efk0yl.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=397&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/579018/original/file-20240229-18-efk0yl.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=498&fit=crop&dpr=1 754w, https://images.theconversation.com/files/579018/original/file-20240229-18-efk0yl.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=498&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/579018/original/file-20240229-18-efk0yl.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=498&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Greek director Yorgos Lanthimos.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/yorgos-lanthimos-attends-the-50th-telluride-film-festival-news-photo/1655989058?adppopup=true">Vivien Killilea/Getty Images</a></span>
</figcaption>
</figure>
<h2>The nomination process</h2>
<p>As Michael Schulman, author of “<a href="https://www.harpercollins.com/products/oscar-wars-michael-schulman?variant=41063519387682">Oscar Wars</a>,” argues, viewing the Academy Awards as a “<a href="https://www.harpercollins.com/products/oscar-wars-michael-schulman?variant=41063519387682">pure barometer of artistic merit or worth</a>” is a mistake. </p>
<p>Numerous factors, including the aggressiveness of Oscar campaign strategists and publicists working around the clock, as well as the composition of the awards committee, exert great influence over the outcome. </p>
<p>In the case of foreign films, the process is twofold. To secure an Oscar nomination as a country’s entry, a foreign film must first gain approval from a committee in its native country. It is then submitted to the Academy of Motion Picture Arts and Sciences and subjected to a vote by the academy. Only one entry is allowed per country. </p>
<p>The intricate dynamics of this process are illustrated by the case of the French film “Anatomy of a Fall,” which was nominated for a best picture Academy Award but not best international feature from France. This decision was <a href="https://variety.com/2024/film/global/france-dysfunctional-oscar-committee-anatomy-of-a-fall-1235880857/">influenced by France’s small national nominating committee</a>, which, disconnected from the current climate of the U.S. academy, favored the nostalgic, culinary romance “<a href="https://www.imdb.com/title/tt19760052/">The Taste of Things</a>,” starring Juliette Binoche. </p>
<h2>A more diverse academy</h2>
<p>The role of the voting committee in determining which films even reach consideration cannot be overstated. Over the last few years, this is what has most radically changed in the academy. In 2012, <a href="https://www.latimes.com/entertainment/la-et-unmasking-oscar-academy-project-20120219-story.html">its composition was 94% white, 77% male</a> and had a median age of 62.</p>
<p>As highlighted by Schulman, the #Oscarssowhite controversy in 2015 <a href="https://www.harpercollins.com/products/oscar-wars-michael-schulman?variant=41063519387682">spurred changes</a> to the academy’s makeup, in the hopes of addressing the industry’s under-recognition of the achievements of people of color. </p>
<p>There was also a concerted effort to enhance geographical diversity and infuse the awards with a more global perspective. In 2016, the new invitees to the academy <a href="https://press.oscars.org/news/96th-oscarsr-nominations-announced">were more diverse</a>: 46% were female, 41% were nonwhite, and they came from 59 different countries. This year, a groundbreaking 93 countries submitted nomination ballots, signifying unprecedented global participation in the Oscars. </p>
<p>Perhaps most significantly, beginning in 2024, the academy has required that, for a film to qualify for a Best Picture nomination, it must meet <a href="https://www.oscars.org/awards/representation-and-inclusion-standards">two out of four standards</a> established by the academy. </p>
<p>The criteria include having at least one lead or significant supporting actor from an underrepresented racial or ethnic group, or centering the main storyline on an underrepresented group. They also require representation in creative leadership positions and crew roles, along with paid apprenticeships for underrepresented groups. Even senior marketing teams require representation. All of these requirements lend themselves to the inclusion of more international film nominees. </p>
<p>Streaming distribution has also <a href="https://variety.com/2019/film/awards/oscar-international-film-category-name-change-1203393900/">democratized access</a> to non-English language cinema, which was previously limited only to niche audiences in art house theaters in large cities.</p>
<p>The distribution company Neon, established in 2017, has been another crucial factor in reshaping the Oscars landscape. Led by Elissa Federoff, Neon is <a href="https://cineuropa.org/en/interview/1369/432732/">committed to breaking industry barriers</a>, diversifying content, transcending language barriers and engaging with younger audiences through platforms like YouTube and TikTok. Neon distributed both “Parasite” and “Anatomy of a Fall.”</p>
<p>As the Oscars evolve into a more globally conscious platform, the future of film seems destined to be shaped by those who think beyond the limitations of what was once considered “foreign,” and remain advocates for the universal language of the cinema.</p><img src="https://counter.theconversation.com/content/222484/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Kerry Hegarty does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Non-English language cinema – previously seen by niche audiences – is increasingly finding acceptance and recognition, reflecting the many demographic changes taking place within the academy.Kerry Hegarty, Associate Professor of Film Studies, Miami UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2247302024-02-29T02:33:54Z2024-02-29T02:33:54ZCan Trump be prosecuted? Supreme Court will take up precedent-setting case to define the limits of presidential immunity<figure><img src="https://images.theconversation.com/files/578791/original/file-20240228-18-4t2s64.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Former President Donald Trump speaks to the media following his appearance at the District Court in Washington, D.C., on Jan. 9, 2024. </span> <span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/former-president-donald-trump-speaks-to-the-media-at-news-photo/1912962647?adppopup=true">Jabin Botsford/The Washington Post via Getty Images</a></span></figcaption></figure><p><em>The U.S. Supreme Court announced on Feb. 28, 2024, that it <a href="https://www.nytimes.com/2024/02/28/us/supreme-court-trump-immunity-trial.html">will consider the momentous issue</a> of whether Donald Trump is immune from criminal prosecution, delaying the federal prosecution of the former president for his alleged efforts to subvert the 2020 election.</em> </p>
<p><em>A lower court, the U.S. Court of Appeals for the District of Columbia Circuit, ruled on Feb. 6 that <a href="https://www.cadc.uscourts.gov/internet/opinions.nsf/1AC5A0E7090A350785258ABB0052D942/$file/23-3228-2039001.pdf">Trump could be prosecuted</a>, rejecting his claims of immunity. Trump appealed that ruling to the Supreme Court.</em></p>
<p><em><a href="https://scholar.google.com/citations?user=7cOGzcwAAAAJ&hl=en">Claire Wofford</a>, a political scientist who teaches constitutional law and American government at the College of Charleston, <a href="https://theconversation.com/trump-was-not-king-and-can-be-prosecuted-for-crimes-committed-while-president-appeals-court-places-limits-on-immunity-221843">analyzed that previous ruling for The Conversation</a>. Senior politics and democracy editor Naomi Schalit asked Wofford to answer questions here about the Supreme Court’s decision to consider the Trump immunity case.</em></p>
<p><strong>What question did the Supreme Court say it will address by taking this case?</strong></p>
<p>In agreeing to hear this case, the Supreme Court justices said they will decide whether or not Trump is immune from criminal prosecution by Special Counsel Jack Smith for his alleged attempt to overturn the results of the 2020 presidential election. Until that question is answered, Smith’s prosecution – which was <a href="https://www.npr.org/2024/02/28/1231974416/supreme-court-trump-immunity">already on hold</a> during the lower court deliberations – <a href="https://www.reuters.com/legal/us-supreme-court-decide-trump-criminal-immunity-claim-2020-election-case-2024-02-28/">cannot move forward</a>.</p>
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<a href="https://images.theconversation.com/files/578789/original/file-20240228-24-omy9s9.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="Donald Trump wears a black jacket and red tie and walks down steps outside, flanked by two men also in suits." src="https://images.theconversation.com/files/578789/original/file-20240228-24-omy9s9.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/578789/original/file-20240228-24-omy9s9.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/578789/original/file-20240228-24-omy9s9.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/578789/original/file-20240228-24-omy9s9.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/578789/original/file-20240228-24-omy9s9.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/578789/original/file-20240228-24-omy9s9.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/578789/original/file-20240228-24-omy9s9.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Former President Donald Trump leaves a press conference following his appearance at the D.C. Appeals Court on Jan. 9, 2024. The court considered the claim that he is immune from prosecution.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/former-u-s-president-donald-trump-departs-the-waldorf-news-photo/1913158135?adppopup=true">Kent Nishimura/Getty Images</a></span>
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<p><strong>Is there something that’s not obvious about how the Supreme Court stated this question?</strong></p>
<p><a href="https://www.supremecourt.gov/orders/courtorders/022824zr3_febh.pdf">The precise phrasing</a> of the question the Supreme Court said it will answer is interesting: “Whether and if so to what extent does a former President enjoy presidential immunity from criminal prosecution for conduct alleged to involve official acts during his tenure in office.” The court stated it will answer not only whether Trump might have immunity but also “to what extent” that immunity exists. </p>
<p>This raises the possibility that rather than simply answer if Trump does or does not have immunity, the court may be looking to extend immunity to some of Trump’s actions and not others. It could also indicate that at least some justices believe future presidents should enjoy some immunity from criminal prosecutions for actions they took while in office, but that this should not extend to what it is alleged Trump did in this Jan. 6 case. </p>
<p>Making this kind of distinction – which the D.C. Circuit ruling did not – could explain why at least four justices on the Supreme Court agreed to hear the case. Rather than simply affirm – or reverse – the lower court, the justices may be interested in making a more nuanced ruling than the lower courts have done. </p>
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<a href="https://images.theconversation.com/files/578790/original/file-20240228-28-loeyq2.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="The top half of the Supreme Court building, including pillars, is seen on a gray day. The U.S. flag waves above it." src="https://images.theconversation.com/files/578790/original/file-20240228-28-loeyq2.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/578790/original/file-20240228-28-loeyq2.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/578790/original/file-20240228-28-loeyq2.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/578790/original/file-20240228-28-loeyq2.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/578790/original/file-20240228-28-loeyq2.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/578790/original/file-20240228-28-loeyq2.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/578790/original/file-20240228-28-loeyq2.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
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<span class="caption">The U.S. Supreme Court is seen on Feb. 28, 2024, the day it announced that it would hear the case regarding former President Donald Trump’s immunity from prosecution.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/the-us-supreme-court-in-washington-dc-on-february-28-2024-news-photo/2038351010?adppopup=true">Mandel Ngan/AFP via Getty Images</a></span>
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<p><strong>How will this affect the timing of the Jan. 6 prosecution?</strong></p>
<p>For now, the federal prosecution in the Jan. 6 case will remain on hold. </p>
<p>The Supreme Court has set oral arguments in the case for April 22, 2024, and would presumably issue a decision by June. That decision could be delayed, however, if the justices are not able to reach an agreement or one or more of them wish to write separate opinions. </p>
<p><strong>Is this going to be a historic decision?</strong></p>
<p>Absolutely. Even if the Supreme Court were to simply state that Trump does or does not have immunity from criminal prosecution, that alone would be a major new statement of constitutional doctrine. </p>
<p>If the justices go further and specify circumstances in which immunity would or would not apply to a former president, that would also be a very significant legal development. </p>
<p>In any event, given that the ruling will determine whether Smith’s federal case against Trump moves forward, the decision will likely make both legal and political history.</p><img src="https://counter.theconversation.com/content/224730/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Claire Wofford does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>In a case that will make legal and political history, the US Supreme Court will consider whether Donald Trump is immune from criminal prosecution for his alleged effort to undermine the 2020 election.Claire Wofford, Associate Professor of Political Science, College of CharlestonLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2230632024-02-08T21:38:05Z2024-02-08T21:38:05ZSupreme Court skeptical that Colorado − or any state − should decide for whole nation whether Trump is eligible for presidency<figure><img src="https://images.theconversation.com/files/574469/original/file-20240208-20-2e10qo.jpeg?ixlib=rb-1.1.0&rect=86%2C0%2C5131%2C3472&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Police place a fence at the U.S. Supreme Court on Feb. 8, 2024, before justices heard arguments over whether Donald Trump is ineligible for the 2024 ballot. </span> <span class="attribution"><a class="source" href="https://newsroom.ap.org/detail/Election2024TrumpInsurrectionAmendment/05e2c7bc3615410b8088714a425193c9/photo?Query=trump%20supreme%20court&mediaType=photo&sortBy=arrivaldatetime:desc&dateRange=Anytime&totalCount=5319&currentItemNo=15">AP Photo/Jose Luis Magana</a></span></figcaption></figure><p><em>Both liberal and conservative justices weighed in during oral arguments before the U.S. Supreme Court on Feb. 8, 2024, asking questions concerning whether a constitutional provision, <a href="https://constitution.congress.gov/browse/amendment-14/section-3/">Section 3 of the 14th Amendment</a>, <a href="https://www.nytimes.com/live/2024/02/08/us/trump-supreme-court-colorado-ballot">gave states too much power</a> to affect a national election.</em> </p>
<p><em>Colorado’s highest court relied on the provision in a <a href="https://www.npr.org/2023/12/20/1220583273/trump-colorado-supreme-court-ruling">December 2023 ruling that the state could bar</a> former President Donald Trump from the state’s primary ballot because they determined he committed insurrection.</em></p>
<p><em>“Why should a single state have the ability to make this determination, not only for their own citizens, but for the rest of the nation?” asked liberal Justice Elena Kagan on Feb. 8.</em></p>
<p><em>The Conversation’s senior politics and democracy editor, Naomi Schalit, spoke with Notre Dame <a href="https://law.nd.edu/directory/derek-muller/">election law scholar Derek Muller</a> after the oral arguments.</em> </p>
<p><em>Muller had submitted <a href="https://www.supremecourt.gov/DocketPDF/23/23-719/298021/20240118122740839_23-719%20Amicus%20Brief.pdf">an amicus brief</a> to the court “in support of neither party” in the case, using the opportunity to describe some concerns for the court’s consideration about whether and how states go about the business of judging qualifications of candidates before putting their names on the ballot.</em> </p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/574386/original/file-20240208-26-irfpck.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="Two voting booths, with people in each one of them." src="https://images.theconversation.com/files/574386/original/file-20240208-26-irfpck.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/574386/original/file-20240208-26-irfpck.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/574386/original/file-20240208-26-irfpck.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/574386/original/file-20240208-26-irfpck.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/574386/original/file-20240208-26-irfpck.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/574386/original/file-20240208-26-irfpck.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/574386/original/file-20240208-26-irfpck.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
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<span class="caption">Will Donald Trump be on the ballot for president in Colorado?</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/photo/voters-voting-in-polling-place-royalty-free-image/138711411?phrase=voting+booth+united+states&adppopup=true">Hill Street Studios/Getty Images</a></span>
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<p><strong>What are your first impressions of the oral arguments?</strong></p>
<p>The Supreme Court was very skeptical that, as an institution, it should be the one responsible for deciding this deeply contested question, and it seemed skeptical that the state of Colorado could do this on its own without some congressional guidance or authorization.</p>
<p>They recognized this as a contested political issue. And I think the concern that one state could effectively alter a national presidential election – without any sort of guidance from Congress or explanation at the federal level about how to go about doing that – was problematic.</p>
<p><strong>The justices did not appear to be divided and partisan in their discussion of the case.</strong></p>
<p>The notion that different states could have different standards for disqualifying presidential candidates, and that they would all come up to the Supreme Court to sort it out, was disturbing to them across the political spectrum. On the whole, they seemed inclined to reverse the Colorado Supreme Court.</p>
<p><strong>Justice Brett Kavanaugh mentioned his concerns about states having such power over a national office. The Colorado solicitor general referred to the “messiness of federalism.” What does this mean?</strong> </p>
<p>States are the ones who have the primary responsibility of <a href="https://constitution.congress.gov/browse/article-2/section-1/">running presidential elections</a>. And Colorado was leaning very heavily into this authority they have over which candidates to list on the ballot and how that can vary from state to state. The pushback from the Supreme Court in this case was to say, in essence, you’re not dealing with local or state interests, you’re not dealing with these state-specific procedures for how you list candidates on the ballot. You are interpreting a provision of the U.S. Constitution, and then you are applying it in your own state in a way that could affect what happens in other states. </p>
<p>The court did lean much more heavily into the notion that when you’re dealing with a national office, like the office of the presidency, and dealing with a nationwide issue, like Section 3 of the 14th Amendment, it should not be left to each state’s devices to decide how to apply and administer that issue to that office. </p>
<figure class="align-center ">
<img alt="A man on at a lectern, flanked by American flags, talking to a crowd of people, many wearing red hats." src="https://images.theconversation.com/files/574390/original/file-20240208-28-zocd4.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/574390/original/file-20240208-28-zocd4.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/574390/original/file-20240208-28-zocd4.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/574390/original/file-20240208-28-zocd4.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/574390/original/file-20240208-28-zocd4.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/574390/original/file-20240208-28-zocd4.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/574390/original/file-20240208-28-zocd4.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
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<span class="caption">Republican presidential candidate and former U.S. President Donald Trump speaks during a campaign event in Las Vegas on Jan. 27, 2024.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/republican-presidential-candidate-and-former-u-s-president-news-photo/1966049773?adppopup=true">Photo by David Becker/Getty Images</a></span>
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<p><strong>So you’re saying this actually isn’t a problem of federalism, it’s a problem created by a lack of clear understanding of this 14th Amendment provision?</strong></p>
<p>Federalism is a way of thinking about the proper allocation of authority between the federal government and state governments. Federalism is not simply the idea that states get to do what they want.</p>
<p>Sometimes they can. But in other places the federal government has the final say, or the federal government is the one with the authority to make these determinations. And when it came to Section 3 of the 14th Amendment, when you have these messy, contested disputes, should this happen on a state-by-state basis? </p>
<p>The court seemed inclined to think that this is something better left to Congress, rather than states unilaterally interpreting Section 3 on their own. </p>
<p><strong>So does that mean the court would like Congress to make things more clear?</strong> </p>
<p>Absolutely. Is it a dodge to say Congress needs to be responsible for this area? Yes. And you can look at Congress and say, have they really legislated in this area? Are they realistically going to legislate in this area? The answer is probably no. Congressional inaction means that these provisions are not going to be enforced, at least as they apply to the events of Jan. 6, 2021, for federal candidates. </p>
<p><strong>How would a court decision affect states other than Colorado?</strong> </p>
<p>If the court issues a decision in the way it seems that it’s going to decide this case, it would prevent any states – at least in presidential elections – from keeping candidates off the primary or general election ballots under Section 3 of the 14th Amendment without some kind of federal guidance to get there. </p>
<p>That means there won’t be similar cases in other states, and the ones that are pending will be resolved in Trump’s favor. So I think this will be left to the political process. Trump will appear on the ballot, and the candidacies will proceed as if none of this had happened. </p>
<p><strong>But does that then just kick a decision down the road, and Congress would have to decide after the election whether the president-elect – if Trump wins – is qualified to serve, a problem that the Colorado plaintiff’s lawyer said “could come back with a vengeance”?</strong> </p>
<p>Congress has the power to count electoral votes. In the past, it has rejected electoral votes, including in 1873 when a presidential candidate died. The worry here is that perhaps Congress would refuse to count electoral votes for a candidate who was an insurrectionist. And if that happens on Jan. 6, 2025, that puts the nation in a precarious place. Or if Trump takes office, there are likely to be many lawsuits to challenge his official actions by others who are saying he’s an insurrectionist who cannot hold office or act as president. </p>
<p>So a decision in the direction the court appears to be going in has the virtue of allowing the political process to play out. But it does leave open questions later about counting electoral votes or even serving in office, and open questions about mechanisms to challenge those actions and what they look like.</p><img src="https://counter.theconversation.com/content/223063/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>I filed an amicus curiae brief in support of neither party in this case.</span></em></p>Partisan differences at the Supreme Court seemed to be set aside as conservative and liberal justices alike asserted concerns about giving states too much power over national elections.Derek T. Muller, Professor of Law, University of Notre DameLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2230582024-02-08T20:48:00Z2024-02-08T20:48:00Z‘Look for a reversal in a fairly short period of time’ − former federal judge expects Supreme Court will keep Trump on Colorado ballot<figure><img src="https://images.theconversation.com/files/574481/original/file-20240208-22-to0w8b.jpg?ixlib=rb-1.1.0&rect=17%2C8%2C5714%2C3806&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Even a day before the oral arguments, a line had formed outside the Supreme Court to sit in on the court's session.</span> <span class="attribution"><a class="source" href="https://newsroom.ap.org/detail/Election2024TrumpInsurrectionAmendment/2e5e06595e7441d3a9bb5c465301f565/photo">AP Photo/Jose Luis Magana</a></span></figcaption></figure><p><em>To get the rare perspective of a former federal judge on the <a href="https://www.supremecourt.gov/oral_arguments/argument_transcript/2023">oral arguments at the Supreme Court</a>, The Conversation U.S. spoke with John E. Jones III. He is the president of Dickinson College and a <a href="https://www.dickinson.edu/homepage/1494/dickinson_college_president">retired federal judge</a> appointed by President George W. Bush and confirmed unanimously by the U.S. Senate in 2002. The case is about former President Donald Trump’s claim that he should be allowed on the presidential ballot in Colorado – and other states – because the language of the 14th Amendment does not apply to him.</em></p>
<p><em>During his time on the bench, Jones issued landmark decisions in high-profile cases, including a 2005 ruling that <a href="https://web.archive.org/web/20051221144316/http:/www.pamd.uscourts.gov/kitzmiller/kitzmiller_342.pdf">teaching intelligent design in science classes is unconstitutional</a>. Jones also issued a 2014 ruling <a href="https://www.scribd.com/document/225260457/1-13-cv-01861-Pennsylvania-Decision">legalizing same-sex marriage in Pennsylvania</a>, which preceded the U.S. Supreme Court decision reaching the same conclusion for the nation as a whole one year later.</em></p>
<p><strong>What’s your overall view of how things went this morning?</strong></p>
<p>I think it’s clear they’re going to reverse the <a href="https://www.courts.state.co.us/userfiles/file/Court_Probation/Supreme_Court/Opinions/2023/23SA300.pdf">Colorado Supreme Court</a>. There’s no question in my mind. I would look for a reversal in a fairly short period of time. The surprise may be that some of the more liberal justices could join the majority. I would look for an overwhelming majority to reverse. I think you could potentially see some concurring opinions, although I think Chief Justice John Roberts will try to wrap it into one opinion.</p>
<p>There are a lot of parts to the arguments. You could have a justice who concurs in the result but for different reasons. But I think they will recognize that the more uniform they are on this, the better they’ll be. </p>
<p>There could be dissents, but in the end I just didn’t think that they were buying Colorado lawyer Jason Murray’s arguments that each state has the power to judge for itself whether Trump’s conduct before, on and after Jan. 6, 2021, constituted insurrection, and that if it did, they can independently evaluate whether Trump is <a href="https://theconversation.com/why-14th-amendment-bars-trump-from-office-a-constitutional-law-scholar-explains-principle-behind-colorado-supreme-court-ruling-219763">ineligible to hold office</a> because of the 14th Amendment. I think there is the possibility of a unanimous opinion. I’m not going to be that bold, but Murray had a tough day.</p>
<p>Murray clerked for Justice Neil Gorsuch when he was on the 10th Circuit Court of Appeals and also clerked for Justice Elena Kagan on the Supreme Court. Former clerks are part of judges’ extended family. But sometimes judges and justices will bend over backwards to really nail their clerks, just to show that they’re not getting any kind of special treatment. I thought they were pretty rough on Murray today. <a href="https://www.supremecourt.gov/oral_arguments/argument_transcripts/2023/23-719_feah.pdf#page=80">Gorsuch really pounded him</a> – and he and Gorsuch probably have a very abiding relationship.</p>
<p><strong>What can we learn about how the justices are thinking about the case?</strong></p>
<p>There’s an old adage that you shouldn’t necessarily predict a result based on questions at oral argument. But it depends. Sometimes, judges and justices are intentionally provocative with their questions – they don’t necessarily signal their mindset or where they’re going. Other times they’re more transparent. </p>
<p>I thought today <a href="https://www.supremecourt.gov/oral_arguments/argument_transcripts/2023/23-719_feah.pdf">the questions</a> were really indicative of the perspectives of the questioners.</p>
<p>There’s a real problem to the position of the voters in Colorado seeking to get Trump off the ballot: If the decision is affirmed, you have the potential to have 50 different states all conducting some type of proceeding for which there is no template whatsoever and coming up with disparate results. </p>
<p>That creates different records in different places, which comes down to a due process argument – about the due process afforded to Trump and what mechanism he may have when his ability to get on the ballot is challenged.</p>
<p>The justices are afraid of future cases, where somebody tries to bump somebody off the ballot – even for political reasons or for no reason at all. There’s no standard for adjudicating this. That’s a problem. The prospect of retaliatory actions was talked about, and in this partisan political climate you could see somebody try to knock Joe Biden off the ballot. Then you’d have a court struggling without a standard, trying to figure out what, if anything, Biden did that disqualifies him.</p>
<p>On the side of Colorado, the argument is intertwining Section 3 of the 14th Amendment and the <a href="https://constitution.congress.gov/constitution/article-2/#article-2-section-1-clause-2">electors clause of the U.S. Constitution</a>, which says that states have the ability to set certain rules and regulations for the conduct of elections underneath Congress’ power to regulate national elections.</p>
<p>They’re saying that the states have the power to decide whether to disqualify someone under their powers in the electors clause. I think that’s a very tough argument to make because of the lack of uniformity. The justices appear concerned about the sheer chaos that would stem from 50 different states adjudicating this question. </p>
<p><strong>The Colorado solicitor general, Shannon Stevenson, said 50 states operating separately is a positive feature of the Constitution’s structure.</strong></p>
<p>During oral arguments they talked about the 1994 case <a href="https://www.oyez.org/cases/1994/93-1456">U.S. Term Limits v. Thornton</a>. It was a case that involved 20-plus states that had enacted term limits for members of Congress. Of course, it got challenged up to the Supreme Court, and in the Constitution there’s no amendment that imposes term limits. What that ruling said was that states can’t add conditions for holding public office that are not within the text of the Constitution. It’s a very technical argument but not a bad argument. </p>
<p><strong>What are your observations about the 14th Amendment as it applies to this case?</strong></p>
<p>This was a poorly written section. It was a reactionary section that was essentially enacted, as stated by the justices, as a compromise that made no one particularly happy. It’s vague.</p>
<p>It doesn’t enumerate the president in the list of people it covers – you can see that. So does it cover the president when it talks about people who are an “<a href="https://constitution.congress.gov/constitution/amendment-14/">officer of the United States</a>” or who holds an “office … under the United States”? Then we play this semantical game. I don’t find that particularly availing, though I think you could fit the president into the rubric.</p>
<p>I think it is a very easy argument to make that Trump was an insurrectionist. But there are no standards. Where’s the due process? </p>
<p>There’s an element of trying to torture a very poorly written section down into something that fits the situation in 2024. That creates enormous headaches for lawyers and judges and justices. It’s just not clear what the amendment means. And when there’s unclarity like that, that makes for a tough go for a justice.</p>
<p>The way Kagan, for example, may write an opinion is to really lean on the fact that it was an insurrection, but it’s a bad section of the Constitution here. She might say our eyes don’t deceive and we know what we saw on Jan. 6, 2021, but there has to be a process to this.</p><img src="https://counter.theconversation.com/content/223058/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>John E. Jones III does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>A retired federal judge examines the oral arguments the Supreme Court heard on a case in which Colorado has blocked former President Donald Trump from the ballot.John E. Jones III, President, Dickinson CollegeLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2223702024-02-08T13:39:16Z2024-02-08T13:39:16ZThe Super Bowl gets the Vegas treatment, with 1 in 4 American adults expected to gamble on the big game<figure><img src="https://images.theconversation.com/files/573295/original/file-20240204-21-h057fn.jpg?ixlib=rb-1.1.0&rect=499%2C7%2C3408%2C2468&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Billions of dollars are being bet on the matchup between the San Francisco 49ers and Kansas City Chiefs.</span> <span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/signage-for-super-bowl-lviii-is-displayed-on-a-pedestrian-news-photo/1974137455?adppopup=true">Ethan Miller/Getty Images</a></span></figcaption></figure><figure class="align-center ">
<img alt="" src="https://images.theconversation.com/files/573875/original/file-20240206-22-1s0mgu.png?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/573875/original/file-20240206-22-1s0mgu.png?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=255&fit=crop&dpr=1 600w, https://images.theconversation.com/files/573875/original/file-20240206-22-1s0mgu.png?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=255&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/573875/original/file-20240206-22-1s0mgu.png?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=255&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/573875/original/file-20240206-22-1s0mgu.png?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=321&fit=crop&dpr=1 754w, https://images.theconversation.com/files/573875/original/file-20240206-22-1s0mgu.png?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=321&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/573875/original/file-20240206-22-1s0mgu.png?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=321&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
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<span class="attribution"><a class="license" href="http://creativecommons.org/licenses/by-nd/4.0/">CC BY-ND</a></span>
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<p>A record 67.8 million American adults are expected to bet US$23.1 billion on Super Bowl LVIII, <a href="https://www.americangaming.org/new/record-68-million-americans-to-wager-23-1b-on-super-bowl-lviii/">according to a new survey conducted by Morning Consult for the American Gaming Association</a>. The estimated number of bettors has increased 35% from the previous Super Bowl, while the total amount being bet is estimated to have shot up from $16 billion in 2023. </p>
<p>Both figures would represent records – fitting for a Super Bowl held in Las Vegas, the gambling capital of the U.S.</p>
<p>For the NFL, partnering with sportsbooks <a href="https://www.espn.com/sports-betting/story/_/id/38338437/nearly-735m-american-adults-bet-nfl-season-survey-says">has been a boon for business</a>. The relationship appears to be a natural one: Though sports betting was illegal in most of the country until 2018, <a href="https://theconversation.com/how-gambling-built-baseball-and-then-almost-destroyed-it-123254">it’s always been a part of sports fandom</a>.</p>
<p><a href="https://scholar.google.com/citations?user=tcvNTxMAAAAJ&hl=en">But as a sports media scholar</a>, I find the league’s embrace of gambling so striking because for most of its history, the NFL had pushed the government for stricter regulations, not more lenient ones.</p>
<p>Particularly in its early days, the NFL wanted to avoid the stain of bookies, bets, fixed games and the gambling crises <a href="https://theconversation.com/how-gambling-built-baseball-and-then-almost-destroyed-it-123254">that had befallen other professional sports leagues</a>.</p>
<h2>Staunch opposition</h2>
<p>In 1963, just as the NFL was starting to become profitable <a href="https://en.wikipedia.org/wiki/NFL_on_television_in_the_1960s">thanks to broadcasting deals</a>, a gambling scandal threatened the league’s growing popularity. </p>
<p>Commissioner Pete Rozelle <a href="https://www.nytimes.com/1963/04/18/archives/football-stars-banned-for-bets-hornung-and-karras-are-suspended-by.html">suspended two of the league’s stars</a>, the Green Bay Packers’ <a href="https://www.pro-football-reference.com/players/H/HornPa00.htm">Paul Hornung</a> and <a href="https://www.pro-football-reference.com/players/K/KarrAl00.htm">Alex Karras</a> of the Detroit Lions, for a full season after both players admitted to placing bets on NFL games.</p>
<p>“This sport has grown so quickly and gained so much of the approval of the American public,” <a href="https://www.usatoday.com/story/sports/columnist/mike-freeman/2021/08/31/nfl-sportsbook-deals-decades-long-hypocrisy-gambling/5655252001/">Rozelle told Sports Illustrated at the time</a>, “that the only way it can be hurt is through gambling.” </p>
<p>But football and gambling eventually resumed their delicate dance. In 1976, CBS hired bookmaker and newspaper columnist James “Jimmy the Greek” Snyder <a href="https://www.nytimes.com/1976/09/03/archives/a-star-is-born-by-8-points-sports-of-the-times.html">to join the cast of its flagship pregame program</a>, “The NFL Today.” CBS Sports president Bob Wussler knew that millions of viewers wanted to know the betting lines for upcoming games. It was Snyder’s job to communicate them. </p>
<p>The NFL’s leadership, however, remained adamantly opposed to its broadcasting partners explicitly encouraging gambling. So Snyder communicated the lines by predicting the final score, <a href="https://read.dukeupress.edu/radical-history-review/article/2016/125/159/22306/Race-Economics-and-the-Shifting-Politics-of-Sport">thereby allowing careful listeners to learn a point spread</a>. The routine lasted until 1988, when Snyder suggested that slavery had made Black players better athletes. <a href="https://www.washingtonpost.com/archive/politics/1988/01/17/jimmy-the-greek-fired-by-cbs-for-his-remarks/27536e46-3031-40c2-bb2b-f912ec518f80/">He was fired the next day</a>.</p>
<p>In 1992, the NFL and other major sports leagues <a href="https://www.congress.gov/bill/102nd-congress/senate-bill/474/text">lobbied for the Professional and Amateur Sports Protection Act</a>, which would severely restrict sports gambling, allowing it only in Nevada, Oregon, Delaware and Montana. Rozelle’s successor, Paul Tagliabue, testified in favor of the bill, telling Congress: “We do not want our games to be used as bait to sell gambling. We have to make it clear to the athletes, the fans and the public, gambling is not a part of sport, period.” The measure passed.</p>
<p>In 2017, current NFL commissioner Roger Goodell reiterated the league’s stance. Speaking in the wake of the owners’ decision to allow the Oakland Raiders to relocate to Las Vegas, <a href="https://www.nbcsports.com/nfl/profootballtalk/rumor-mill/news/goodell">he insisted</a>: “We still strongly oppose … legalized sports gambling. The integrity of our game is No. 1. We will not compromise on that.”</p>
<h2>More money, more problems?</h2>
<p>Everything changed a year later, when the Supreme Court <a href="https://www.usatoday.com/story/sports/2018/05/14/supreme-court-sports-betting-paspa-law-new-jersey/440710002/">declared the Professional and Amateur Sports Protection Act unconstitutional</a>, which left the decision to allow sports gambling to the states. Since then, <a href="https://www.cbssports.com/general/news/u-s-sports-betting-here-is-where-all-50-states-currently-stand-on-legalizing-online-sports-betting-sites/">more than 30 states have legalized sports gambling</a>.</p>
<p>Despite its historical opposition to sports gambling, the NFL moved quickly to take advantage of the new legal landscape.</p>
<p>In 2021, <a href="https://www.sportspromedia.com/news/nfl-sports-betting-sponsorship-betmgm-pointsbet-wynnbet-tv-advertising/?zephr_sso_ott=6Qvsdy">the league announced seven companies</a>, including BetMGM, Draft Kings and Caesars, as the league’s official gambling partners. Two years later, ESPN, one of the league’s major partners – <a href="https://www.thenation.com/article/society/espn-nfl-journalism/">and one in which the league may soon buy a stake</a> – announced the formation of <a href="https://www.espn.com/espn/betting/story/_/id/38897700/what-espn-bet-how-do-use-where-legal">ESPN BET</a>, a sportsbook partnership with Penn Entertainment. ESPN immediately began promoting its new venture on its television and web platforms. </p>
<figure class="align-center ">
<img alt="Caesar's Palace video screen advertising Super Bowl matchup between the San Francisco 49ers and the Kansas City Chiefs." src="https://images.theconversation.com/files/573296/original/file-20240204-19-nqnfp6.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/573296/original/file-20240204-19-nqnfp6.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=393&fit=crop&dpr=1 600w, https://images.theconversation.com/files/573296/original/file-20240204-19-nqnfp6.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=393&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/573296/original/file-20240204-19-nqnfp6.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=393&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/573296/original/file-20240204-19-nqnfp6.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=493&fit=crop&dpr=1 754w, https://images.theconversation.com/files/573296/original/file-20240204-19-nqnfp6.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=493&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/573296/original/file-20240204-19-nqnfp6.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=493&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
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<span class="caption">Gambling and football have become two peas in a pod.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/the-marquee-at-caesars-palace-displays-super-bowl-lviii-news-photo/1984286077?adppopup=true">Ethan Miller/Getty Images</a></span>
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<p>By embracing sports gambling, the NFL has unleashed new profit streams. Even casual fans can’t miss the surge in gambling advertisements that now air during the games, all of which buttress the value of media rights. Meanwhile, the NFL’s official sportsbook partners will fork over <a href="https://sports.yahoo.com/nfl-inks-nearly-1-billion-212312677.html?guccounter=1&guce_referrer=aHR0cHM6Ly93d3cuZ29vZ2xlLmNvbS8&guce_referrer_sig=AQAAACW45R03fmohhc_B1ZlWpY7_zcvqe5EV5sh9G1SgB7Vt_g9Xpu0ghK4RC7rVNpXCRtLUe0jtLvMKCSXNafnOuM4ZlKFd1nD9s2zqyLhninUA3cFZQRqqA6ZAwHrOYhC27SJZ3rV7SjQLXzycbVwXxSCqKsLek1dHNpXL6ZzSro4t">more than $1 billion</a> to the league over the course of the five-year contract. </p>
<p>But this infusion of extra cash comes with a substantial social cost. Gambling addictions <a href="https://money.com/gambling-addiction-all-time-high/">are at an all-time high</a>, likely spurred by the ease with which people can place bets from their phones. <a href="https://theconversation.com/i-treat-people-with-gambling-disorder-and-im-starting-to-see-more-and-more-young-men-who-are-betting-on-sports-198285">Young men seem to be especially vulnerable</a>.</p>
<p>Ten NFL players <a href="https://apnews.com/article/nfl-gambling-suspensions-0c31c118f637efa159fad75e7b949418">have been suspended for gambling on sports</a> since 2022. Several former athletes have come forward <a href="https://www.theplayerstribune.com/posts/calvin-ridley-nfl-football-jacksonville-jaguars">to share stories of their struggles with sports betting</a>.</p>
<p>Nonetheless, the league continues to promote gambling sites to its fan base. The gambling prohibitions for players have not substantially changed, but the environment in which they work and live <a href="https://www.mlive.com/sports/2024/01/nfl-wide-receiver-accused-of-making-thousands-of-illegal-bets-while-starring-at-lsu.html">has made the temptation far more difficult to avoid</a>.</p>
<p>Goodell has cast the league’s partnerships with sportsbooks as a no-brainer for the bottom line: “We have to be in that space,” <a href="https://www.nbcsports.com/nfl/profootballtalk/rumor-mill/news/goodell">he plainly stated in a September 2023 interview</a>.</p>
<p>Meanwhile, the potential costs – for the league and for its fans – are a bit harder to see, at least right away. But to anti-gambling advocates, they’re no less pernicious.</p><img src="https://counter.theconversation.com/content/222370/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Thomas Oates does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>What makes the NFL’s embrace of gambling so striking is that for most of its history, the league had pushed the government for stricter regulations – not more lenient ones.Thomas Oates, Associate Professor of Sport Media, University of IowaLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2223542024-02-06T13:31:04Z2024-02-06T13:31:04ZSupreme Court heads into uncharted, dangerous territory as it considers Trump insurrection case<figure><img src="https://images.theconversation.com/files/573195/original/file-20240203-27-tu4bta.jpeg?ixlib=rb-1.1.0&rect=38%2C12%2C8449%2C4758&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">The U.S. Supreme Court.</span> <span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/photo/supreme-court-royalty-free-image/1500767786?phrase=U.S.+Supreme+court&adppopup=true">Larry Crain/iStock/Getty Images Plus</a></span></figcaption></figure><p>Can Colorado disqualify former President Trump <a href="https://www.oyez.org/cases/2023/23-719">from the state’s primary ballot</a>? That’s the momentous question the U.S. Supreme Court will consider in <a href="https://www.scotusblog.com/2024/01/supreme-court-agrees-to-hear-trump-plea-to-remain-on-colorado-ballot/">Trump v. Anderson</a>, a case being argued before the justices on Feb. 8, 2024.</p>
<p>The case involves the justices wading into the <a href="https://www.washingtonpost.com/history/2023/12/20/insurrection-14th-amendment-history-trump/">unfamiliar waters</a> of the 14th Amendment’s insurrection clause. Legal experts on <a href="https://www.cnn.com/2024/01/29/politics/luttig-conway-supreme-court-trump-insurrection/index.html">both sides</a> of the <a href="https://www.supremecourt.gov/DocketPDF/23/23-719/298014/20240118120731316_23-719%20Amicus%20Brief%20of%20U.S.%20Senator%20Ted%20Cruz.pdf">political aisle</a> filed amicus briefs to plead with the justices to either allow Trump to stay on the ballot or keep him off it. </p>
<p>As scholars who <a href="https://doi.org/10.1086/709913">study</a> <a href="https://doi.org/10.1080/0098261X.2022.2124897">how the federal judiciary</a> is changing, we believe that Trump’s unprecedented relationship with the judiciary makes this case important in ways that go beyond the legality of his ballot removal. One dark shadow hanging over this case is that the justices’ decision could affect the court’s legitimacy, too.</p>
<p>Public support for the court and its overall legitimacy are already at <a href="https://www.pewresearch.org/short-reads/2023/07/21/favorable-views-of-supreme-court-fall-to-historic-low/">all-time lows</a>. Part of this results from the current polarization of the electorate. That polarization has led people to shift their support for the court <a href="https://doi.org/10.1177/1065912920950482">based on their perceptions of the court’s partisan leanings</a>. Trump’s efforts to politicize the court may also contribute to these negative feelings.</p>
<p>The justices have done many things to hurt the court’s legitimacy, too, from <a href="https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4206986">upending the legal status quo</a> on issues such as abortion to <a href="https://www.forbes.com/sites/siladityaray/2023/10/31/senate-democrats-plan-to-supoena-gop-megadonors-over-reported-undisclosed-gifts-to-supreme-court-justices/?sh=1655532712b5">accepting money and luxury vacations from people whose interests have appeared in cases before the court</a>. </p>
<p>No matter how hard the justices <a href="https://apnews.com/article/north-america-donald-trump-us-news-ap-top-news-immigration-c4b34f9639e141069c08cf1e3deb6b84">work to head off</a> negative perceptions of the court, they have been unsuccessful at restoring their institution’s legitimacy.</p>
<p>And now, against this backdrop of vitriol and low support, the court must answer a question that has never been asked: Does Section 3 of the 14th Amendment mean Colorado can keep Trump off the ballot? </p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/573197/original/file-20240203-15-vw1wpn.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="A man in a blue blazer, blue striped tie and white shirt in front of an American flag." src="https://images.theconversation.com/files/573197/original/file-20240203-15-vw1wpn.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/573197/original/file-20240203-15-vw1wpn.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/573197/original/file-20240203-15-vw1wpn.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/573197/original/file-20240203-15-vw1wpn.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/573197/original/file-20240203-15-vw1wpn.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/573197/original/file-20240203-15-vw1wpn.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/573197/original/file-20240203-15-vw1wpn.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Donald Trump’s eligibility to be on state ballots as a presidential candidate is being considered by the U.S. Supreme Court.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/republican-presidential-candidate-and-former-u-s-president-news-photo/1965961432?adppopup=true">David Becker/Getty Images</a></span>
</figcaption>
</figure>
<h2>‘My judges’</h2>
<p>Trump’s relationship with the federal judiciary – both the judges who serve in the federal judiciary and the broader legal institution itself – differs from that of his predecessors. He talks about the court system not as an independent branch of government but as a political institution whose positions <a href="https://time.com/4266700/donald-trump-supreme-court-nominations/">should align</a> with his own. </p>
<p>In his Jan. 6, 2021, speech before the attack on the U.S. Capitol, Trump sounded miffed at the three justices he had nominated to the Supreme Court. They were ruling against him now, he said, perhaps to counter the perception that <a href="https://www.nytimes.com/2023/12/21/us/politics/trump-supreme-court.html">“they’re my puppets.”</a> </p>
<p>Modern presidents have always sought to mold the judiciary by selecting <a href="https://www.upress.virginia.edu/title/3596/">justices whose records</a> align with the nominating president’s <a href="https://yalebooks.yale.edu/book/9780300080735/picking-federal-judges/">political preferences</a>. But historically, presidents were careful to discuss the courts in <a href="https://www.cambridge.org/core/books/curbing-the-court/97B607067A2E7392C2223EF7E642FC7A">legalistic terms</a> and <a href="https://doi.org/10.1111/1468-2508.00207">avoid politicizing the judiciary</a>.</p>
<p>Trump flouted those norms. In an unusual move, <a href="https://www.nytimes.com/2016/05/19/us/politics/donald-trump-supreme-court-nominees.html">he released a list</a> of potential Supreme Court nominees while campaigning for the 2016 GOP presidential nomination, touting the <a href="https://time.com/4266700/donald-trump-supreme-court-nominations/">conservative credentials</a> of the names on his list. </p>
<p>Once elected, he asked <a href="https://doi.org/10.1177/1532673X221109534">members of the Federalist Society</a>, a group dedicated to putting conservative judges on the bench, to help him select nominees, including the three justices he eventually put on the Supreme Court.</p>
<p>Once the Senate confirmed his nominees to the Supreme Court, Trump referred to Justices Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett as <a href="https://www.harpercollins.com/products/nine-black-robes-joan-biskupic?variant=40723951517730">“my” judges</a>. </p>
<p>And as his legal cases have made their way through the courts, he suggested that judges he nominated at any level – district, circuit or for the Supreme Court – owed him favorable rulings because he gave them their seats. <a href="https://www.washingtonpost.com/politics/2024/01/05/2-key-points-trumps-lawyer-suggesting-justice-kavanaugh-owes-trump/">One of Trump’s lawyers in the Colorado ballot case</a> now before the Supreme Court suggested in January 2023 that “people like Kavanaugh who the president fought for, who the president went through hell to get into place, he’ll step up.”</p>
<p>And Trump has questioned the credentials of most judges who have ruled against him, whether it’s in response to cases <a href="https://apnews.com/article/north-america-donald-trump-us-news-ap-top-news-immigration-c4b34f9639e141069c08cf1e3deb6b84">involving his presidential policies</a> or those involving his <a href="https://truthsocial.com/@realDonaldTrump/posts/111848593080388710">personal conduct</a>, especially when Democrats nominated those judges. When judges have refused to bend to his will, Trump has pushed back, <a href="https://www.brennancenter.org/our-work/research-reports/his-own-words-presidents-attacks-courts">lambasting the judges</a> as biased and saying they were <a href="https://twitter.com/realDonaldTrump/status/1065581119242940416">“out of control”</a> and the court system was <a href="https://twitter.com/realDonaldTrump/status/951094078661414912">“broken and unfair.”</a> He used social media to call the federal judge presiding over his Jan. 6 prosecution a <a href="https://abcnews.go.com/Politics/judge-reinstates-trump-gag-order-jan-6-case/story?id=104466343">“TRUE TRUMP HATER.”</a> </p>
<h2>Increased criticism, decreased legitimacy</h2>
<p>Framing the Supreme Court as a political institution beholden to the president diminishes the <a href="https://doi.org/10.1177/1532673X211064299">court’s legitimacy in the eyes of the public</a>. Research shows that <a href="https://doi.org/10.1177/1065912917750278">people’s support for the court decreases</a> when a politician they like criticizes it. </p>
<p>Some people also struggle to believe that <a href="https://doi.org/10.1111/ajps.12599">judges who do not look or think like them</a> are neutral arbiters of the law, so Trump’s comments potentially inflame those beliefs and increase people’s wariness of the judiciary. </p>
<p>Beyond that, Trump constantly tries to make the point that the entire judicial nominating process is political, from identifying judges by which president nominated them – for example, an <a href="https://www.politico.com/story/2018/11/21/supreme-court-chief-justice-john-roberts-calls-out-trump-for-his-attack-on-a-judge-1011203%22%22">“Obama judge”</a> or a <a href="https://www.huffpost.com/entry/trump-judges-lawsuits_n_5db1d70ee4b03285e87ba2fd%22%22">“Trump judge”</a> – to his leaning on the justices he put on the court. This has the broader effect of framing the Supreme Court as a political rather than legal institution. And that <a href="https://doi.org/10.1111/j.1540-5907.2012.00616.x">dramatically decreases its legitimacy</a>. </p>
<p>Put simply, people support the court less when politicians attack it, and Trump frequently attacks the judiciary. </p>
<h2>Maintaining authority</h2>
<p>Why care about legitimacy? </p>
<p>Because <a href="https://avalon.law.yale.edu/18th_century/fed78.asp">unlike the president or members of Congress</a>, who can enforce their own laws and policies – as long as they abide by the Constitution – the Supreme Court depends on other institutions for enforcement of its opinions. The court lacks the literal force or money to enforce its decisions.</p>
<p>Consider the Supreme Court’s famous 1954 ruling in <a href="https://www.oyez.org/cases/1940-1955/347us483">Brown v. Board of Education</a>, which ordered the end of school segregation. That ruling did not get enforced in most of the South <a href="https://doi.org/10.1111/ajps.12069">until the president and Congress passed laws</a> that punished schools that refused to integrate.</p>
<p>Those institutions enforce Supreme Court decisions only because the public believes the court is a <a href="https://doi.org/10.1111/1540-5907.00025">legitimate legal institution</a> with the authority to make decisions about the law and get them enforced. </p>
<p>This belief in judicial authority stems from several different sources, including <a href="https://www.degruyter.com/document/doi/10.1515/9781400830602/html">elementary education</a> on democratic values, the justices’ <a href="https://press.umich.edu/Books/T/The-Limits-of-Legitimacy2">concerted efforts</a> <a href="https://doi.org/10.1177/1065912918801563">to avoid</a> all but the most favorable media attention, their focus on showing <a href="https://doi.org/10.1111/j.1540-5907.2012.00616.x">the principled nature</a> of their decision-making process, their aim to <a href="https://doi.org/10.1017/jlc.2023.15">mitigate negative public sentiment</a> and even their decision to separate themselves by <a href="https://doi.org/10.1111/lasr.12104">wearing robes to political events</a>. </p>
<p>To be sure, people are not naive about the <a href="https://doi.org/10.1146/annurev-polisci-032211-214229">political nature of Supreme Court decision-making</a>. But as long as the justices’ decision-making appears principled, research has found that the court <a href="https://doi.org/10.1111/j.1540-5893.2011.00432.x">remains legitimate</a> to the public, even if the court issues a <a href="https://doi.org/10.1146/annurev-lawsocsci-110413-030546">decision the public dislikes</a>.</p>
<p>Typically, the justices <a href="https://press.princeton.edu/books/paperback/9780691136332/the-politics-of-precedent-on-the-us-supreme-court">lean on precedent</a> to defend their rulings, but the justices cannot do so in the Trump Colorado ballot case. <a href="https://thehill.com/opinion/judiciary/4435677-the-supreme-court-cant-punt-on-trumps-disqualification-without-threatening-the-constitution/">No precedent exists</a>. </p>
<p>Combined with the court’s low popular support, moving into uncharted legal territory means the justices face, for the first time in a while, the possibility that people <a href="https://www.npr.org/2023/09/26/1200906844/supreme-court-alabama-voting-case">might defy</a> or <a href="https://www.pbs.org/newshour/show/border-standoff-between-texas-feds-intensifies-as-governor-defies-supreme-court-ruling">ignore their rulings</a>. In fact, Sen. J.D. Vance, a Republican from Ohio, suggested in a recent interview that the <a href="https://www.foxnews.com/video/6346242779112">president could defy the Supreme Court</a>. </p>
<p>Consequently, while the justices’ decision will be important for constitutional and democratic reasons, the public’s response to the ruling will be just as important for democracy and the rule of law in the U.S.</p><img src="https://counter.theconversation.com/content/222354/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>The authors do not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and have disclosed no relevant affiliations beyond their academic appointment.</span></em></p>With their upcoming decision concerning whether Donald Trump can appear on the Colorado ballot, Supreme Court justices face the possibility that the ruling could be ignored or defied by the public.Jessica A. Schoenherr, Assistant Professor of Political Science, University of South CarolinaJonathan M. King, Assistant Professor of Political Science, West Virginia UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2212092024-02-04T19:09:03Z2024-02-04T19:09:03ZShould Donald Trump be disqualified from state ballots in presidential election? Here’s how the US Supreme Court might rule<p>The US Supreme Court will hear oral arguments this week in former President
Donald Trump’s <a href="https://www.supremecourt.gov/docket/docketfiles/html/public/23-719.html">appeal</a> against the decision to exclude him from the ballot in the Colorado Republican primary for this year’s presidential election.</p>
<p>The Colorado Supreme Court <a href="https://apnews.com/article/trump-insurrection-14th-amendment-2024-colorado-d16dd8f354eeaf450558378c65fd79a2">ruled</a> in December that Trump was disqualified from holding the office of president under <a href="https://constitution.congress.gov/browse/amendment-14/section-3/">Section 3 of the 14th Amendment</a> to the Constitution because he engaged in an insurrection on January 6, 2021.</p>
<p>Because the Republican primaries have already begun (Coloradoans vote on March 5) and the US Supreme Court’s current term ends on June 30, the nine justices have very little time to consider such a momentous dispute with so many constitutional issues to be clarified.</p>
<p>So, what will happen this week and how might the court rule?</p>
<h2>How does the Supreme Court operate?</h2>
<p>Each side is usually allotted 30 minutes to present their case in oral arguments, but the lawyers are almost always interrupted by questions from the justices. The questioning can provide clues as to how the justices might be leaning. </p>
<p>The justices then meet in private to discuss the case and form a preliminary opinion. The chief justice, John Roberts, has the power to determine which of the justices will draft the written opinion, but only if he is in the majority. If not, that power transfers to the next most senior justice in the majority. </p>
<p>The draft opinion will be circulated to the other justices and is subject to their suggestions and possible alterations. This is almost a political exercise because the justice writing the opinion needs to get four other justices to sign the draft, or, at least, support the decision. </p>
<p>He or she would also want to minimise the number of dissenting or concurring opinions that would, inevitably, undermine the force of the court’s majority opinion. It is an exercise in coalition-building to forge that majority, which is never certain until this final stage of the process.</p>
<h2>What are the constitutional issues?</h2>
<p>The justices face a seemingly intractable choice between two fundamental values: defending the rule of law and protecting democracy.</p>
<p>For most of its life, the <a href="https://constitution.congress.gov/browse/amendment-14/section-3/">insurrection clause</a> has been regarded by constitutional scholars as of historical interest only and consequently ignored. </p>
<p>Trump’s <a href="https://theconversation.com/trump-defends-himself-to-the-supreme-court-saying-he-called-for-peace-patriotism-respect-for-law-and-order-on-jan-6-and-is-not-an-insurrectionist-221396">appeal</a> raised three major constitutional questions the Supreme Court will have to decide: </p>
<ul>
<li><p>whether Section 3 applies to Trump as a sitting president</p></li>
<li><p>what it takes to determine if someone is guilty of insurrection </p></li>
<li><p>and whether the states have the power to enforce Section 3 without prior approval from Congress.</p></li>
</ul>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/trump-defends-himself-to-the-supreme-court-saying-he-called-for-peace-patriotism-respect-for-law-and-order-on-jan-6-and-is-not-an-insurrectionist-221396">Trump defends himself to the Supreme Court, saying he called ‘for peace, patriotism, respect for law and order’ on Jan. 6 and is not an insurrectionist</a>
</strong>
</em>
</p>
<hr>
<p>On the first issue, Trump believes Section 3 doesn’t apply to him because it doesn’t specifically refer to the president or the presidential oath. He also claims the president is not an “officer of the United States”, as <a href="https://constitution.congress.gov/browse/amendment-14/section-3/">the clause reads</a>. </p>
<p>In his petition, Trump offers several unconvincing reasons why this is so and it will probably be a difficult argument for his lawyers to sustain. As the Colorado Supreme Court said pointedly in its judgement, </p>
<blockquote>
<p>The Constitution refers to the presidency as an “office” 25 times.</p>
</blockquote>
<p>The second issue is whether the Colorado court erred in grounding its judgement on the fact Trump had been guilty of insurrection (based on the House Select Committee <a href="https://www.pbs.org/newshour/politics/read-the-final-report-from-the-jan-6-committee">report</a>). One of the dissenting justices argued that Trump was entitled to the “due process of law” before being disqualified from the ballot.</p>
<p>So far, Trump has not been found guilty of insurrection, nor is he facing any specific charges of insurrection in the court cases under way. </p>
<p>The respondents seeking to remove Trump from the ballot point to the findings of the trial court in Colorado detailing his actions on January 6 as the central issue in the case. They claim Trump has failed to show why the trial court was wrong. </p>
<p>In effect, then, they are asking the Supreme Court to validate the charge that Trump engaged in an insurrection.</p>
<p>The third major issue is whether Section 3 is self-executing, as the Colorado Supreme Court decided. This means the Constitution does not require legislation by Congress in order to disqualify a candidate for office under Section 3.</p>
<p>The US Supreme Court will have to decide whether Congress <em>must legitimise</em> any action under Section 3, or whether Congress merely has the power to invoke the insurrection ban should no other body do so.</p>
<p><div data-react-class="Tweet" data-react-props="{"tweetId":"1752874596733206683"}"></div></p>
<h2>How will the court likely respond?</h2>
<p>The Supreme Court has a solid six-to-three conservative majority, with three of the conservative justices nominated by Trump. But there isn’t a clear “liberal” or “conservative” position on the Colorado court’s opinion. <a href="https://www.theatlantic.com/ideas/archive/2023/08/donald-trump-constitutionally-prohibited-presidency/675048/">Liberal and conservative</a> lawyers alike have provided legal rationales for excluding Trump’s candidacy based on the 14th Amendment. </p>
<p><div data-react-class="Tweet" data-react-props="{"tweetId":"1692908002473291878"}"></div></p>
<p>The last time the Supreme Court entangled itself in a presidential election – the <a href="https://supreme.justia.com/cases/federal/us/531/98/">Bush v. Gore decision</a> in 2001 – it was a judicial dog’s breakfast. The ruling was <a href="https://www.amazon.com.au/Supreme-Injustice-Court-Hijacked-Election/dp/0195158075">widely seen</a> as a political decision reflecting the partisan preferences of the five conservative justices in the majority.</p>
<p>In a blistering dissenting opinion, Justice John Paul Stevens <a href="https://www.politico.com/news/magazine/2019/12/29/john-paul-stevens-the-pessimist-of-the-supreme-court-089590">wrote</a>: </p>
<blockquote>
<p>Although we may never know with complete certainty the identity of the winner of this year’s presidential election, the identity of the loser is perfectly clear. It is the nation’s confidence in the judge as an impartial guardian of the rule of law.</p>
</blockquote>
<p>The court should be mindful of the public and legal backlash to that decision and its current <a href="https://www.washingtonpost.com/politics/2022/11/22/supreme-court-conservatives-alito-roberts/">low level of public approval</a>. The court’s embarrassing <a href="https://www.nbcnews.com/politics/supreme-court/supreme-court-code-of-conduct-rcna124951">ethical problems</a> and unpopular decisions, such as the overturning of Roe v. Wade, have already clouded its legitimacy and reputation.</p>
<p>Whatever its decision, the court risks once again being seen as politically partisan. If it overturns the Colorado decision, it saves Trump’s political ambitions. If it upholds the decision and bars Trump from the ballot, it could trigger protests from Trump supporters, as Trump <a href="https://www.theguardian.com/us-news/2024/jan/10/donald-trump-bedlam-criminal-cases">has already intimated</a>.</p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/us-supreme-court-decision-on-trump-colorado-ballot-case-monumental-for-democracy-itself-not-just-2024-presidential-election-220643">US Supreme Court decision on Trump-Colorado ballot case 'monumental' for democracy itself, not just 2024 presidential election</a>
</strong>
</em>
</p>
<hr>
<p>The general view among constitutional commentators is the Supreme Court would probably not want to give 50 different states and the District of Columbia the freedom to decide who is qualified or disqualified to be president. This could lead to Trump appearing on the ballot in some states, but not others.</p>
<p>If so, it would need to make the Colorado decision apply to all states, or craft an opinion that overturns the Colorado decision without being seen as overtly pro-Trump. It would have to seek some mid-point between upholding the rule of law (some would argue the Colorado decision does that very effectively) and permitting people to be able to vote for the candidate of their choice.</p>
<p>There’s not much legal precedent to guide the court in resolving the appeal. And the liberal-conservative divide on the court is probably not going to be a reliable predictor of the outcome. How the court settles this dispute is anyone’s guess.</p>
<p>Given the current fragile state of American democracy, the country can ill-afford a repeat of Bush v. Gore.</p><img src="https://counter.theconversation.com/content/221209/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>John Hart does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Whatever its decision, the court risks once again being seen as politically partisan.John Hart, Emeritus Faculty, Australian National UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2223272024-02-01T13:31:50Z2024-02-01T13:31:50ZSupreme Court word-count limits for lawyers, explained in 1,026 words<figure><img src="https://images.theconversation.com/files/572440/original/file-20240131-23-oym8mi.jpeg?ixlib=rb-1.1.0&rect=31%2C10%2C7030%2C4976&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Lawyers write too much. That's why the Supreme Court and other U.S. courts impose word limits on them.</span> <span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/illustration/busy-businessman-working-on-computer-with-royalty-free-illustration/1177158970?phrase=pile+of+paper&adppopup=true">siraanamwong/ iStock / Getty Images Plus</a></span></figcaption></figure><p>The dispute over former President Donald Trump’s eligibility to appear on the Colorado ballot will come to a head on Feb. 8, 2024, when the U.S. Supreme Court holds oral arguments in the case. <a href="https://www.supremecourt.gov/docket/docketfiles/html/public/23-719.html">Dozens of individuals and organizations have weighed in</a> by filing what are called “amicus curiae” – friend of the court – briefs. <a href="https://www.law.cornell.edu/wex/amicus_curiae">These briefs</a> can give judges different perspectives on a case than the litigants’ briefs do. </p>
<p>When each amicus brief – or any other kind of brief – is filed, the court requires that a separate document be filed along with it: a “certificate of word count,” in which the filer promises that the brief does not exceed the word count <a href="https://www.law.cornell.edu/rules/supct/rule_33">allowed by Supreme Court rule</a>. Depending on the circumstances, the Supreme Court’s limits range from 6,000 to 13,000 words, or about <a href="https://www.law.cornell.edu/rules/frap/rule_32">20 to 50 pages</a>.</p>
<p>Why is compliance with this word-count requirement so important to the Supreme Court and to many other U.S. courts that it must be attested to in a separate, signed certificate?</p>
<p>Maybe because many lawyers, when given the chance, will write as much as they can. </p>
<p>They forget, as Justice Clarence Thomas put it <a href="https://youtu.be/FpR3wfHTMR0?si=ZA4RmJcoI7noYq3y">in a 2007 interview with author Bryan Garner</a>, that judges are “really busy,” and what that particular lawyer wrote is “not the most important thing” their judge will read that day.</p>
<figure>
<iframe width="440" height="260" src="https://www.youtube.com/embed/FpR3wfHTMR0?wmode=transparent&start=0" frameborder="0" allowfullscreen=""></iframe>
<figcaption><span class="caption">Justice Clarence Thomas gives writing advice to lawyers about what a judge wants to read.</span></figcaption>
</figure>
<p>As a law professor who, for almost two decades, <a href="https://lawweb.colorado.edu/profiles/profile.jsp?id=274">has studied what judges find persuasive</a>, I know that Thomas’ view is widely shared. And I also know that lawyers spend a lot of energy – and words – trying to evade limits. These efforts have even extended to arguing in court, with citations to renowned typographical experts, about the precise definition and measure of what constitutes “double-spaced.”</p>
<h2>‘Too long, too long, too long’</h2>
<p>From the judge’s perspective, the purpose of word limits is to invite lawyers to make their arguments leaner and more focused in order to conserve judges’ attention. </p>
<p>Pennsylvania-based Chief Judge Ruggero J. Aldisert <a href="https://law.olemiss.edu/assets/Aldisert75-3.pdf">summarized the views of dozens of other chief judges</a> by noting that the first problem with briefs is that they’re “too long, too long, too long.” </p>
<p>And in 2012, when a lawyer in a Florida case asked Judge Steven Merryday for permission to submit a brief that would have exceeded his court’s limits, the judge not only rejected the request but <a href="https://www.courtlistener.com/docket/8274281/24/belli-v-hedden-enterprises-inc/">line-edited the first paragraph</a> of the proposed filing − paring it down from 176 words to just 46.</p>
<p>But some attorneys instead read word-limit certifications as an effort to constrain the perceived persuasive power of extra-long briefs rather than signaling the outer edge of what judges will read. The number becomes a goal rather than a maximum. </p>
<p>And so, when one side appears to write past that limit, the other side calls foul and files an objection in court.</p>
<p>In these objections, a lawyer usually asks the court two questions: First, to determine that the filing whose length was questioned really did exceed the word or page limit. Despite modern technology and electronic filing, some courts still impose page limits. Second, the court is asked to do something about that violation, such as require the party to refile a shorter version or, sometimes, to instead allow the complaining party extra space as well. Some even ask the court to sanction the first party for their misconduct. </p>
<p>Of course, the other lawyer writes back with arguments and requests of their own.</p>
<p>So, our already busy judge now has even more to read and more decisions to make. California-based Judge Jesus Bernal was so put off by the “sheer audacity” of an attorney complaining about “minor formatting issues” in the other party’s brief that he <a href="https://abovethelaw.com/uploads/2023/11/Sanctions.pdf">sanctioned the complaining attorney</a>, requiring that attorney to pay the other side’s fees and costs.</p>
<h2>Arguing over spaces</h2>
<p>One subset of these conflicts are fights over the meaning of “double-spaced.” The most recent example, from November 2023, arose in Tennessee before U.S. District Judge Sheryl Lipman.</p>
<p>One side noticed that the other side had filed a brief that seemed to have more lines of text per page than their own briefs contained. It turned out that those lawyers had spaced their lines of text 24 points apart – <a href="https://practicaltypography.com/point-size.html">a “point” is 1/72 of an inch</a> – rather than closer to 28 points, <a href="https://abovethelaw.com/uploads/2023/11/Motion.pdf">which the complaining lawyers asserted</a> was the measure in “all widely-used word processing programs” using the “double-space” setting. </p>
<p>Thus, to “ensure a level playing field,” they asked Judge Lipman to require the other side to put more space between lines of text in future filings.</p>
<p>The 24-point lawyers responded, marshaling <a href="https://abovethelaw.com/uploads/2023/11/response.pdf">58 pages of argument and exhibits</a> in support of their spacing. </p>
<p>They began by explaining that, in typography, double-spacing “has an objective meaning,” which is “double the size of the typeface font.” To prove that their writing met this standard, they measured it with a <a href="https://www.schaedlerprecision.com/products.htm">specialized typographic ruler</a> called a pica pole.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/572240/original/file-20240130-25-ta6jy6.png?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="A text excerpt with a measuring pole laid on it." src="https://images.theconversation.com/files/572240/original/file-20240130-25-ta6jy6.png?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/572240/original/file-20240130-25-ta6jy6.png?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/572240/original/file-20240130-25-ta6jy6.png?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/572240/original/file-20240130-25-ta6jy6.png?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/572240/original/file-20240130-25-ta6jy6.png?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/572240/original/file-20240130-25-ta6jy6.png?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/572240/original/file-20240130-25-ta6jy6.png?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">An exhibit in a legal filing using a pica pole to make a point about proper double-spacing.</span>
<span class="attribution"><a class="source" href="https://abovethelaw.com/uploads/2023/11/response.pdf">Jessica Jones, et al., Plaintiffs, v. Varsity Brands, LLC, et al</a></span>
</figcaption>
</figure>
<p>As for the propriety of using that definition in legal briefs, they cited the <a href="https://typographyforlawyers.com/foreword.html">leading authority in the field</a>: Matthew Butterick, whose book “Typography for Lawyers” <a href="https://typographyforlawyers.com/line-spacing.html">has a whole section on line spacing</a>. </p>
<p>Not yet content, they went further, attaching – after their six exhibits – a written declaration from Butterick himself. In it, he agreed that the complained-about brief was “definitely double-spaced,” while conceding that line spacing is “often a source of confusion for lawyers.”</p>
<p>The source of this confusion? Software defaults. </p>
<p>Counterintuitively, when typing in 12-point font in a program such as Microsoft Word, choosing the “double-spaced” option doesn’t set the lines 24 points apart. Instead, the program chooses to space lines a bit more than that, in an amount that varies both by which version of Word one is using and by which font.</p>
<p>Thus, the typographic definition is not only more accurate but also more reliable. And it doesn’t require a litigant to license a particular word processing program to ensure compliance.</p>
<p><a href="https://www.abajournal.com/files/LipmanDouble-spaceopinion.pdf">Judge Lipman basically agreed</a> and rejected the complaining attorneys’ invitation to forbid 24-point spacing. </p>
<p>But she reminded the lawyers that “the last thing any party needs is more words on a page. The length of an argument is no guarantee of its success, and indeed could result in more confusion, not clarity.”</p><img src="https://counter.theconversation.com/content/222327/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>I know Matthew Butterick, the expert mentioned in the article. I've collaborated with him, served with him on a panel at an academic conference, and nominated him for an award he received in 2012.</span></em></p>Lawyers submitting briefs to the Supreme Court in the Trump Colorado ballot case must file a ‘certificate of word count.’ Why? As one judge put it, lawyers’ briefs are ‘too long, too long, too long.’Derek H. Kiernan-Johnson, Teaching Professor of Law, University of Colorado BoulderLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2194952024-01-31T19:09:33Z2024-01-31T19:09:33ZWill abortion be the issue that swings the 2024 US presidential election?<p>Abortion is shaping up to be a central issue for both parties in the 2024 US presidential and Congressional elections.</p>
<p>Nearly two years ago, the US Supreme Court overturned the landmark Roe v. Wade decision, finding there was no constitutional right to abortion and returning regulation to the states.</p>
<p>Since that decision (a case known as Dobbs v. Jackson), <a href="https://www.nytimes.com/interactive/2022/us/abortion-laws-roe-v-wade.html">14 states</a> now ban abortion in almost all circumstances and ten have imposed restrictions, some of which have been blocked by the courts. <a href="https://apnews.com/article/abortion-dobbs-anniversary-state-laws-51c2a83899f133556e715342abfcface">One in three</a> women of reproductive age now live in states that have either banned or restricted abortion.</p>
<p>Abortion remains legal and protected in 26 states, plus the District of Columbia. </p>
<p>For decades, abortion has been central to partisan politics in the United States. Republicans made opposition to abortion a core part of their identity and voter mobilisation strategies. They pumped out so-called “<a href="https://www.nytimes.com/2024/01/12/us/politics/house-republicans-abortion-ban.html">messaging bills</a>” (dramatic legislation with little chance of passing or being upheld, such as the <a href="https://www.paul.senate.gov/news-sen-rand-paul-introduces-life-conception-act/">Life At Conception bill</a>), while <a href="https://link.springer.com/content/pdf/10.1007/978-3-030-01707-1.pdf">pledging</a> to end Roe v Wade.</p>
<p>Yet, abortion was not a make-or-break electoral cause. In 2018, sociologist <a href="https://www.wiley.com/en-au/Abortion+Politics-p-9780745688787">Ziad Munson</a> concluded</p>
<blockquote>
<p>[…] for the vast majority of the public, abortion is simply not a key issue they consider when deciding their vote.</p>
</blockquote>
<h2>Most Americans still support abortion rights</h2>
<p>Dobbs v. Jackson, however, transformed the political landscape. Support for abortion is now at a <a href="https://news.gallup.com/poll/506759/broader-support-abortion-rights-continues-post-dobbs.aspx">record high</a> among Americans, with 69% believing abortion should be legal in the first three months of pregnancy and 61% believing that overturning Roe v. Wade was a “bad thing”. </p>
<p>Women and young people have <a href="https://www.vox.com/policy-and-politics/2022/9/4/23333329/roe-voter-registration-dobbs-midterms-democrats">rushed</a> to register as new voters. And 21% of registered voters describe abortion as the issue they would be <a href="https://fivethirtyeight.com/features/abortion-was-always-going-to-impact-the-midterms/">unwilling to compromise on</a>, a sentiment most pronounced among Democrats and independents. </p>
<p>In the 2022 midterm elections in the US, voter anger over Dobbs v. Jackson was <a href="https://www.npr.org/2022/11/25/1139040227/abortion-midterm-elections-2022-republicans-democrats-roe-dobbs">widely</a> <a href="https://fivethirtyeight.com/features/abortion-was-always-going-to-impact-the-midterms/">credited</a> with stopping the expected “<a href="https://www.politico.com/news/2022/11/09/abortion-votes-2022-election-results-00065983">red wave</a>” in Congress and state races, even as President Joe Biden’s <a href="https://www.pewresearch.org/politics/2023/12/14/assessments-of-joe-biden/pp_2023-12-14_gop_2-01/">approval rating</a> hovered around 40%. </p>
<p>Abortion was also central to Democrats <a href="https://www.theguardian.com/us-news/2023/dec/20/democrats-virginia-abortion-strategy-roe-v-wade-2024-election">gaining control</a> of the Virginia state legislature in 2023.</p>
<p>Seven states have voted on abortion referendums since the Dobbs v. Jackson decision. All were <a href="https://www.politico.com/news/2023/11/09/abortion-rights-elections-red-states-00126225">decisive victories for reproductive rights</a>, including in <a href="https://www.washingtonpost.com/politics/2023/11/07/ohio-issue-1-election-results/">traditionally red</a> states such as Kansas, Kentucky and Ohio. In Ohio, one in five Republicans voted to constitutionally <a href="https://www.theguardian.com/us-news/2023/nov/17/ohio-abortion-rights-republicans-overturn">protect</a> abortion access in the state.</p>
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<h2>Democrats have an issue to rally support</h2>
<p>All of this points to abortion being a major issue in the presidential election later this year.</p>
<p>Biden, a practising Catholic, is an unlikely pro-choice ally. In 1973, he believed the Supreme Court went “<a href="https://www.nytimes.com/2019/03/29/us/politics/biden-abortion-rights.html">too far</a>” in the Roe v. Wade decision. During his decades in the Senate, his views <a href="https://www.nbcnews.com/politics/2020-election/biden-s-long-evolution-abortion-rights-still-holds-surprises-n1013846">evolved</a> and he now believes Roe v. Wade “<a href="https://www.cbsnews.com/news/joe-biden-abortion-catholic-faith-roe-v-wade-got-it-right/">got it right</a>.”</p>
<p>Initially, the Biden administration was slow to respond to the <a href="https://theconversation.com/what-would-amy-coney-barrett-trumps-pick-for-the-supreme-court-mean-for-abortion-rights-in-the-us-146931">palpable threat</a> to reproductive rights in the lead-up to Dobbs v. Jackson. It took Biden <a href="https://didbidensayabortionyet.org/">468 days</a> to publicly say the word abortion as president, and he still <a href="https://www.politico.com/news/2023/06/22/biden-abortion-2024-campaign-reelection-00103158">rarely</a> uses the term. </p>
<p>After Dobbs v. Jackson, however, both Biden and Vice President Kamala Harris became assertive in defence of abortion rights. Legislatively hamstrung, the administration used the <a href="https://www.whitehouse.gov/briefing-room/statements-releases/2023/01/22/fact-sheet-president-biden-to-sign-presidential-memorandum-on-ensuring-safe-access-to-medication-abortion/">Food and Drug Administration</a>, the <a href="https://www.justice.gov/opa/pr/attorney-general-merrick-b-garland-statement-supreme-court-ruling-dobbs-v-jackson-women-s">Justice Department</a>, and <a href="https://www.whitehouse.gov/briefing-room/statements-releases/2023/06/23/fact-sheet-biden-harris-administration-highlights-commitment-to-defending-reproductive-rights-and-actions-to-protect-access-to-reproductive-health-care-one-year-after-overturning-of-roe-v-wade/">executive orders</a> to try to protect and expand access to abortion and contraception across the country.</p>
<p>And abortion will be “<a href="https://www.politico.com/news/2023/06/22/biden-abortion-2024-campaign-reelection-00103158">front and centre</a>” for Democrats in the 2024 elections.</p>
<p>In <a href="https://www.nytimes.com/2023/11/08/us/politics/abortion-ads-democrats-election.html">advertisements</a>, <a href="https://www.youtube.com/watch?v=yGnc8JkaUII">Senate briefings</a>, <a href="https://www.whitehouse.gov/briefing-room/speeches-remarks/2023/04/25/remarks-by-vice-president-harris-at-a-political-event-on-reproductive-rights/">campaign events</a>, and <a href="https://www.reuters.com/world/us/biden-harris-begin-abortion-rights-campaign-roe-v-wade-anniversary-2024-01-18/">television appearances</a>, Democrats emphasise the suffering caused by what they call “<a href="https://abcnews.go.com/Health/wireStory/bidens-campaign-pushes-abortion-rights-2024-battle-republicans-106483145">draconian</a>” Republican abortion bans and the advocacy work of doctors and reproductive rights groups.</p>
<p>To drive home the point, the Biden-Harris team made their first joint campaign appearance of the year in late January at a <a href="https://edition.cnn.com/2024/01/23/politics/biden-harris-abortion-rights/index.html">reproductive rights rally</a> in Virginia, a day after what would have been the 51st anniversary of the Roe v. Wade decision. </p>
<h2>For Republicans, it’s complicated</h2>
<p>Dobbs v. Jackson was the fulfilment of a Republican promise decades in the making. Publicly, Republicans celebrated. Privately, some believed the party was “<a href="https://www.politico.com/news/2022/06/25/the-dog-that-caught-the-car-republicans-brace-for-the-impact-of-reversing-roe-00042387">the dog that caught the car</a>”.</p>
<p>Anti-abortionists have always viewed overturning Roe v. Wade as merely a first step, with the ultimate goal being an end to legal abortion nationwide. Since Dobbs v. Jackson, anti-abortion groups have pushed for: </p>
<ul>
<li><p>a <a href="https://www.nytimes.com/2023/04/20/us/politics/trump-abortion-susan-b-anthony.html">federal abortion ban at 15 weeks and beyond</a> </p></li>
<li><p>state bills to outlaw <a href="https://www.washingtonpost.com/politics/2022/08/14/medicated-abortions-drugs-students-for-life/">abortion-inducing drugs</a> (now the most common type of abortion method) </p></li>
<li><p>“<a href="https://time.com/6191886/fetal-personhood-laws-roe-abortion/">foetal personhood</a>” laws that would extend legal rights to foetuses or embryos from the <a href="https://www.nytimes.com/2022/08/21/us/abortion-anti-fetus-person.html">moment of fertilisation</a>, with likely consequences for in vitro fertilisation and some forms of contraception.</p></li>
</ul>
<p>Since the Republican primary campaigns began last year, however, <a href="https://apnews.com/article/iowa-republicans-presidential-candidates-abortion-55dd7067d626c4add1f1270c03e33655">the silence among prospective candidates</a> has been striking. </p>
<p>Most presidential aspirants have preferred to talk generically about “<a href="https://www.npr.org/2023/11/16/1213006071/republican-candidates-abortion-rights">protecting life</a>.” Nikki Haley, the only candidate remaining to challenge frontrunner Donald Trump, has spoken vaguely of the need for “<a href="https://www.washingtonpost.com/politics/2024/01/23/haley-abortion-new-hampshire/">consensus</a>” on abortion at the federal level.</p>
<p>As for Trump, he ran <a href="https://democrats.org/news/donald-trump-brags-about-his-role-in-overturning-roe-in-new-ads/">Facebook advertisements</a> before the Iowa caucuses last month calling himself “THE MOST Pro-Life President in history.” Yet, simultaneously, Trump is positioning himself as an abortion <a href="https://www.rollingstone.com/politics/politics-features/donald-trump-abortion-moderate-run-2024-election-1234893936/">moderate</a>. </p>
<p>Trump’s cynical about-face should come as no surprise. In 1999, Trump claimed to be “<a href="https://www.nbcnews.com/meet-the-press/video/trump-in-1999-i-am-very-pro-choice-480297539914">very pro-choice</a>.” By the 2016 Republican primaries, he had become much more <a href="https://www.washingtonpost.com/news/wonk/wp/2016/10/20/rip-the-baby-out-of-the-womb-what-donald-trump-got-wrong-about-abortion-in-america/">extreme</a> and <a href="https://edition.cnn.com/2016/03/30/politics/donald-trump-abortion-town-hall/index.html">controversial</a> in his rhetorical opposition to abortion.</p>
<p>Trump has repeatedly dodged questions about whether he supports a federal law, refusing to support the idea of a 15-week ban <a href="https://www.bbc.com/news/world-us-canada-66003915">championed</a> by his former vice president, Mike Pence. </p>
<p>In September, he described Florida Governor Ron DeSantis’ signing of a six-week abortion ban in his state as “<a href="https://www.pbs.org/newshour/politics/trump-labels-desantis-abortion-ban-a-terrible-mistake-riling-some-republicans">a terrible thing and a terrible mistake</a>.” Then, in January, Trump told a Fox News town hall audience that on abortion, “there has to be a little bit of a <a href="https://slate.com/news-and-politics/2024/01/donald-trump-abortion-bans-fox-news-town-hall.html">concession</a>.”</p>
<p>Initially, anti-abortion activists condemned Trump, even picketing one of his Miami rallies with signs declaring “<a href="https://www.rollingstone.com/politics/politics-features/anti-abortion-activists-protest-donald-trump-rally-florida-1234873608/">Make Trump Pro-Life Again</a>”. However, with Trump widely expected to be the Republican candidate, these groups are now <a href="https://www.washingtonpost.com/politics/2024/01/05/trump-abortion/">falling in line</a>. Ultimately, they need him far more than he needs them.</p>
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<p>The new Republican timidity about abortion does not mean that conservatives have had a fundamental change of heart. As Trump put it, “<a href="https://abcnews.go.com/Politics/trump-boasts-role-ending-roe-wade-abortion-regulations/story?id=106280890">you got to win elections</a>.” If they win the presidency and majorities in both houses of Congress in November, Republicans will most likely continue their assault on abortion and reproductive rights.</p>
<p>In January, Biden’s job approval rating hit <a href="https://abcnews.go.com/Politics/trump-tops-opponents-biden-hits-new-low-approval/story?id=106335244">record lows</a> at a time of historic inflation levels. Even though abortion has been political poison for Republicans, it <a href="https://time.com/6561898/donald-trump-voters-2024/">may not be enough</a> to help Democrats hold onto the White House.</p><img src="https://counter.theconversation.com/content/219495/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Prudence Flowers has received funding from the South Australian Department of Human Services. She is a member of the South Australian Abortion Action Coalition. </span></em></p>Democrats now have an issue to mobilise voters. For Republicans, however, it’s more complicated.Prudence Flowers, Senior Lecturer in US History, College of Humanities, Arts, and Social Sciences, Flinders UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2139412024-01-29T16:38:18Z2024-01-29T16:38:18ZAffirmative action policies to increase diversity are successful, but controversial, around the world<figure><img src="https://images.theconversation.com/files/571167/original/file-20240124-27-lxpu7g.jpg?ixlib=rb-1.1.0&rect=19%2C19%2C6536%2C4344&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">
</span> <span class="attribution"><a class="source" href="https://www.shutterstock.com/image-photo/smiling-diverse-male-company-representatives-colleagues-1463772395">fizkes/Shutterstock</a></span></figcaption></figure><p>In a landmark judgment in June 2023, the US supreme court ruled against the use of race-conscious admissions in colleges and universities. This decision marked a controversial end to <a href="https://www.newyorker.com/magazine/2023/07/10/the-end-of-affirmative-action">affirmative action</a> in US higher education admissions. </p>
<p>Race-conscious admissions policies at American universities have a history that goes back to the 1960s <a href="https://www.smithsonianmag.com/history/learn-origins-term-affirmative-action-180959531">civil rights movement</a>. These policies aimed to increase the number of students from underrepresented groups and build more racially diverse student populations. Writing for the supreme court majority opinion, Chief Justice John Roberts <a href="https://www.supremecourt.gov/opinions/22pdf/20-1199_hgdj.pdf">wrote</a> that many universities have “concluded, wrongly, that the touchstone of an individual’s identity is not challenges bested, skills built, or lessons learned but the color of their skin”.</p>
<p>But the US is not the only country with policies to correct or compensate for ethnic, religious or racial discrimination. Our <a href="https://www.wider.unu.edu/sites/default/files/Publications/Working-paper/PDF/wp2023-59-affirmative-action-around-world-new-dataset.pdf">working paper</a> compares the varying types and success of these policies around the world. </p>
<p>Affirmative action is a relatively recent tool for most countries, with policies <a href="https://www.wider.unu.edu/sites/default/files/Publications/Working-paper/PDF/wp2023-59-affirmative-action-around-world-new-dataset.pdf">gaining momentum</a> from the 1990s onwards, particularly in politics. This was followed by public sector employment and education in the 2000s, and later by private sector employment in the 2010s. </p>
<p>Affirmative action policies can include <a href="https://pubs.aeaweb.org/doi/pdfplus/10.1257/aeri.20200196">“soft” measures</a> designed to increase minority representation in a candidate pool. For instance, language in job postings that signals a commitment to diversity and encourages minority applicants.</p>
<p>They may also include “hard” measures, such as direct consideration of minority status in admissions or hiring decisions, or implementing quotas in national legislative bodies. New Zealand’s <a href="https://theconversation.com/new-zealand-elections-maori-seats-once-again-focus-of-debate-83293">“Māori seats”</a>, which give government representation to the indigenous Māori people, are an example of this.</p>
<h2>Differences around the world</h2>
<p>In Europe, <a href="https://op.europa.eu/en/publication-detail/-/publication/45515983-3e3e-4a24-bcbc-477f04f0ba04">“positive action”</a> is a more common term than affirmative action. In some contexts, “positive discrimination” is <a href="https://home-affairs.ec.europa.eu/networks/european-migration-network-emn/emn-asylum-and-migration-glossary/glossary/positive-discrimination_en">understood as a synonym</a> for both. </p>
<p>In some countries, there is a sharp distinction between terms. In <a href="https://www.gov.uk/government/publications/positive-action-in-the-workplace-guidance-for-employers/positive-action-in-the-workplace#what-is-positive-action">Great Britain</a>, employers are allowed to take positive action that may involve “treating one group that shares a protected characteristic more favourably than others”. This may mean providing targeted job training programmes. Positive discrimination, such as hiring a less-qualified candidate because she is from an underrepresented group, is prohibited under the Equality Act.</p>
<p><a href="https://www.wider.unu.edu/sites/default/files/Publications/Working-paper/PDF/wp2023-15-impact-affirmative-action-India-United-States.pdf">India</a> is known as the first country to adopt affirmative action policies. The heart of Indian affirmative action lies in the reservation system. This system “reserves” spots in government employment, governing bodies, and educational admissions for <a href="https://socialjustice.gov.in/common/76750">“scheduled castes and tribes”</a> and other marginalised groups. This system has roots in similar practices during the colonial period.</p>
<p>Following its independence, India continued the reservation system through its <a href="https://www.wider.unu.edu/publication/legal-basis-affirmative-action-india">1950 constitution</a> and subsequent amendment in 1951. These provisions ensured the representation of historically marginalised castes and tribes not just in politics, but also in employment and education sectors through set quotas. India later expanded these initiatives to “other backward classes” and “economically weaker sections”.</p>
<p>Like affirmative action in the US, India’s reservation system has been subject to intense debate. Members of groups not benefiting from reservations have publicly <a href="https://www.washingtonpost.com/archive/politics/1997/07/18/classes-clash-over-quotas-in-india/2989a918-9a92-4246-8ac2-50698511945a/">criticised</a> the ethnic- and class-based quotas. Critics argue that these measures promote unfair preferences and reverse discrimination. </p>
<p>But the two countries have taken <a href="https://www.wider.unu.edu/sites/default/files/Publications/Working-paper/PDF/wp2023-15-impact-affirmative-action-India-United-States.pdf">starkly different routes</a> in how they handled this contentious issue. In the US, court decisions progressively led to softening or abolishing affirmative action programmes. In <a href="https://www.wider.unu.edu/sites/default/files/Publications/Working-paper/PDF/wp2022-74-legal-basis-affirmative-action-India.pdf">India</a>, faced with similar court rulings, a series of constitutional amendments have preserved reservations.</p>
<h2>Does affirmative action work?</h2>
<p>With colleagues, we built a <a href="https://www.wider.unu.edu/sites/default/files/Publications/Working-paper/PDF/wp2023-59-affirmative-action-around-world-new-dataset.pdf">global dataset</a> of affirmative action policies around the world. We also conducted a <a href="https://www.wider.unu.edu/sites/default/files/Publications/Working-paper/PDF/wp2023-14-does-affirmative-action-address-ethnic-inequality.pdf">systematic review of the literature</a> to determine whether they are successful.</p>
<p>We found that 63% of the 194 studies we reviewed concluded that affirmative action programmes indeed served to improve outcomes for ethnic, religious or racial minorities. These measures helped the target groups gain better education and employment outcomes, as well as foster meaningful political participation. </p>
<p>Nevertheless, as the US and India show, affirmative action is often deeply controversial. Regardless of what the research shows about the success of these policies, they are often met with protest and resistance. </p>
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<p>In over half of the countries we studied, national <a href="https://www.africanews.com/2018/09/04/white-workers-in-s-africa-protest-against-discrimination-by-black-only-share//">protests</a> and <a href="https://www.voanews.com/a/reform-in-malaysia-still-beholden-to-racial-politics/4728537.html">civic action</a> emerged in support of or against the conduct of affirmative action policies. And almost one in five saw <a href="https://timesofindia.indiatimes.com/videos/toi-original/not-just-violent-maratha-reservation-protests-eknath-shindes-added-troubles-include-his-own-mps-resigning/videoshow/104845275.cms">violent incidents</a> or riots directly linked to the introduction and implementation of affirmative action policies. </p>
<p>Governments hoping to implement or expand affirmative action programmes should consider these effects. </p>
<p>In her <a href="https://www.supremecourt.gov/opinions/22pdf/20-1199_hgdj.pdf">dissenting opinion</a>, US supreme court justice Sonia Sotomayor argued that affirmative action is a necessary corrective to advance equality. So, what can be done to shift public discourse and build support for these programmes?</p>
<p>In the US, recent <a href="https://news.gallup.com/opinion/polling-matters/317006/affirmative-action-public-opinion.aspx">public opinion polls</a> suggest significant opposition to racial preferences in hiring decisions. The same polling shows strong support for equal opportunity and diversity. This suggests that the way forward may be to pursue soft over hard affirmative action measures – encouraging diversity without implementing quotas.</p><img src="https://counter.theconversation.com/content/213941/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Rachel M Gisselquist receives funding from UNU-WIDER.</span></em></p><p class="fine-print"><em><span>Min J. Kim is a Visiting Assistant Professor at George Washington University. </span></em></p>Affirmative action policies in politics, education and the labour force are often met with protest and resistance.Rachel M Gisselquist, Senior Research Fellow, World Institute for Development Economics Research (UNU-WIDER), United Nations UniversityMin J. Kim, Visiting Assistant Professor at the George Washington University; Visiting Researcher, World Institute for Development Economics Research (UNU-WIDER), United Nations UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2217142024-01-27T21:42:47Z2024-01-27T21:42:47ZColorado voters seeking to disqualify Trump from the ballot tell Supreme Court Jan. 6 ‘will forever stain’ US history<figure><img src="https://images.theconversation.com/files/571733/original/file-20240127-15-zb94el.jpeg?ixlib=rb-1.1.0&rect=25%2C0%2C5665%2C3788&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Supporters of President Donald Trump climb the west wall of the U.S. Capitol on Jan. 6, 2021. </span> <span class="attribution"><a class="source" href="https://newsroom.ap.org/detail/ElectoralCollegeProtests/7143302aa07c4735add48358925717d9/photo?Query=Jan.%206%20rioters%20capitol&mediaType=photo&sortBy=&dateRange=Anytime&totalCount=730&digitizationType=Digitized&currentItemNo=13&vs=true&vs=true">AP Photo/Jose Luis Magana</a></span></figcaption></figure><p>The plaintiffs seeking to remove former President Donald Trump from Colorado’s 2024 presidential election ballots <a href="https://www.supremecourt.gov/DocketPDF/23/23-719/298854/20240126115645084_23-719%20Anderson%20Respondents%20Merits%20Brief.pdf">filed their brief to the U.S. Supreme Court</a> on Jan. 26, 2024. They asked the court to uphold the <a href="https://www.documentcloud.org/documents/24233440-co-supreme-court-ruling-anderson-v-griswold">ruling by Colorado’s highest court</a> that Trump engaged in an insurrection against the United States and, accordingly, should be disqualified from the presidential election under <a href="https://constitution.congress.gov/constitution/amendment-14/#amendment-14-section-3">Section 3 of the 14th Amendment</a>.</p>
<p>Trump “refused to accept the will of the over 80 million Americans who voted against him,” the brief filed by Norma Anderson and several other plaintiffs said. “Instead of peacefully ceding power, Trump intentionally organized and incited a violent mob to attack the United States Capitol in a desperate effort to prevent the counting of electoral votes cast against him.” </p>
<p>Anderson, a Republican and former Colorado state lawmaker, and several other plaintiffs had filed suit in September 2023 to keep Trump off the 2024 Colorado ballots. The Colorado Supreme Court’s conclusion that Trump was ineligible to appear on the ballot was appealed by Trump to the U.S. Supreme Court. </p>
<p>The 14th Amendment’s Section 3 bars those who have “<a href="https://theconversation.com/why-14th-amendment-bars-trump-from-office-a-constitutional-law-scholar-explains-principle-behind-colorado-supreme-court-ruling-219763">engaged in insurrection or rebellion</a>” from holding federal office.</p>
<p>The outcome of the case will likely determine if Trump can appear on <a href="https://www.axios.com/2024/01/07/trump-ballot-remove-14th-amendment-map">ballots in states across the country</a>.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/571734/original/file-20240127-23-mow260.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="A Tweet by then-President Donald Trump, saying 'I will be there. Historic day!' posted 3 days before the Jan. 6 U.S. Capitol riot." src="https://images.theconversation.com/files/571734/original/file-20240127-23-mow260.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/571734/original/file-20240127-23-mow260.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=338&fit=crop&dpr=1 600w, https://images.theconversation.com/files/571734/original/file-20240127-23-mow260.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=338&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/571734/original/file-20240127-23-mow260.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=338&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/571734/original/file-20240127-23-mow260.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=424&fit=crop&dpr=1 754w, https://images.theconversation.com/files/571734/original/file-20240127-23-mow260.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=424&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/571734/original/file-20240127-23-mow260.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=424&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">A Tweet by then-President Donald Trump, posted three days before the Jan. 6 U.S. Capitol riot.</span>
<span class="attribution"><a class="source" href="https://newsroom.ap.org/detail/TrumpImpeachment/c0190564b0ae43cd8895d3155ef7d6cc/photo?Query=Jan.%206%20%20Donald%20Trump%20ellipse&mediaType=photo&sortBy=&dateRange=Anytime&totalCount=1251&digitizationType=Digitized&currentItemNo=2&vs=true&vs=true">Senate Television via AP</a></span>
</figcaption>
</figure>
<h2>Facts vs. assertions</h2>
<p>Unlike <a href="https://www.supremecourt.gov/DocketPDF/23/23-719/298125/20240118171750343_Trump%20v%20Anderson%20Petitioner%20Brief%20on%20the%20Merits.pdf">Trump’s brief</a>, which he filed with the Supreme Court on Jan. 18, Anderson primarily focuses on the facts, pointing out that Trump’s brief lacks any meaningful rebuttal of the “most damning evidence against him.” </p>
<p>Some of the “most damning evidence” that Anderson’s brief highlights includes how Trump “deliberately summoned to D.C. an angry and armed crowd who came ready to fight” and that Trump’s speech on the White House Ellipse “explicitly and implicitly incited the angry and armed crowd to imminent lawless violence.” </p>
<p>The Anderson brief describes how the Jan. 6 attackers “injured over 140 law enforcement officers, left one dead, and forced Congress and Vice President (Mike) Pence to flee for their lives.” </p>
<p>In his brief, Trump mainly argued that Section 3 of the 14th Amendment does not apply to the presidency because the president <a href="https://theconversation.com/trump-defends-himself-to-the-supreme-court-saying-he-called-for-peace-patriotism-respect-for-law-and-order-on-jan-6-and-is-not-an-insurrectionist-221396">is not an “officer” of the United States under the Constitution</a>. Trump’s brief also argued that Section 3 does not bar a candidate from running for office but rather bars the candidate from holding office, if elected. </p>
<p>And Trump asserted in his brief that “<a href="https://theconversation.com/trump-defends-himself-to-the-supreme-court-saying-he-called-for-peace-patriotism-respect-for-law-and-order-on-jan-6-and-is-not-an-insurrectionist-221396">Calling for peace, patriotism, respect for law and order</a>, and directing the Secretary of Defense to do what needs to be done to protect the American people is in no way inciting or participating in an ‘insurrection.’” </p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/571735/original/file-20240127-15-n2uzdu.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="A man with sandy colored hair at a big desk in front of three large windows." src="https://images.theconversation.com/files/571735/original/file-20240127-15-n2uzdu.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/571735/original/file-20240127-15-n2uzdu.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/571735/original/file-20240127-15-n2uzdu.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/571735/original/file-20240127-15-n2uzdu.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/571735/original/file-20240127-15-n2uzdu.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/571735/original/file-20240127-15-n2uzdu.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/571735/original/file-20240127-15-n2uzdu.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Will Trump’s attempts to stay in the Oval Office now keep him from returning to it?</span>
<span class="attribution"><a class="source" href="https://newsroom.ap.org/detail/RussiaUkraineWarTrump/3b33dc13425b410ab7aabb27112f7865/photo?Query=Donald%20Trump%20oval%20office&mediaType=photo&sortBy=&dateRange=Anytime&totalCount=1473&digitizationType=Digitized&currentItemNo=14&vs=true&vs=true">AP Photo/Evan Vucci</a></span>
</figcaption>
</figure>
<h2>‘Monumental’ case</h2>
<p>The Supreme Court will have several issues to consider in this case. The justices will have to address the legal questions presented by Trump, such as whether Section 3 of the 14th Amendment applies to the presidency. And the court will also have to answer mixed questions of law and fact.</p>
<p>Traditionally, the Supreme Court does not delve into questions of fact in the cases it considers – those facts are understood to have been established in lower court decisions. And while I initially stated that the <a href="https://theconversation.com/trump-defends-himself-to-the-supreme-court-saying-he-called-for-peace-patriotism-respect-for-law-and-order-on-jan-6-and-is-not-an-insurrectionist-221396">court would not consider</a> such questions in this case, I now join other constitutional scholars who believe the court will likely have to answer what constitutes an insurrection under the 14th Amendment, and whether Trump’s actions – or inactions – sufficiently meet that definition.</p>
<p>Perhaps the justices will turn to the history of the 14th Amendment to answer those questions. As Anderson’s brief points out, Congress and the states ratified the amendment, including Section 3, after the Civil War because they believed that oath-breaking insurrectionists could, if given the power of elected office, <a href="https://theconversation.com/why-14th-amendment-bars-trump-from-office-a-constitutional-law-scholar-explains-principle-behind-colorado-supreme-court-ruling-219763">dismantle the country’s constitutional system</a> from within. The 39th Congress considered Section 3 a necessary measure of self-defense – ensuring that those who had proven themselves faithless would be deprived of the political power to threaten the future peace and security of the United States.</p>
<p>But Section 3’s text may present the deciding factors for the court. Section 3 clearly states that “No person shall … hold any office, civil or military, under the United States.” It provides no language that appears to prohibit candidates from running for office. </p>
<p>Ultimately, Trump v. Anderson will be a monumental case. Regardless of its outcome, however, Anderson’s brief asserts that the “desecration of the U.S. Capitol by a mob of insurrectionists on January 6, 2021, will forever stain our Nation’s history.”</p><img src="https://counter.theconversation.com/content/221714/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Wayne Unger does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>In their Supreme Court brief, Colorado residents seeking to bar Trump from their state’s ballot say that ‘Trump intentionally organized and incited a violent mob to attack the US Capitol.’Wayne Unger, Assistant Professor of Law, Quinnipiac UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2213892024-01-26T13:21:52Z2024-01-26T13:21:52ZMost state abortion bans have limited exceptions − but it’s hard to understand what they mean<figure><img src="https://images.theconversation.com/files/571261/original/file-20240124-27-dzfjqa.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Women who were denied abortions, despite serious pregnancy complications, appear outside the Texas Supreme Court in November 2023, following arguments in a lawsuit they brought against the state. </span> <span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/plaintiffs-including-amanda-zurowski-speaks-at-a-press-news-photo/1807598346?adppopup=true">Suzanne Cordeiro/AFP via Getty Images </a></span></figcaption></figure><p>More than a year after the Supreme Court found there is no <a href="https://www.oyez.org/cases/2021/19-1392">fundamental right to get an abortion</a>, <a href="https://www.nytimes.com/interactive/2022/us/abortion-laws-roe-v-wade.html">21 states have laws in effect</a> that ban abortion well before fetal viability, generally allowing it only in the first trimester. </p>
<p>Fourteen of these 21 states have also issued near-total bans on abortion from the point of conception. But it’s not clear when, if ever, an abortion would be permissible under these near-total bans.</p>
<p>Virtually all states, including Arkansas, North Dakota and Oklahoma, for example, allow an <a href="https://www.kff.org/womens-health-policy/state-indicator/gestational-limit-abortions/?currentTimeframe=0&sortModel=%7B%22colId%22:%22Location%22,%22sort%22:%22asc%22%7D">abortion when necessary</a> to save the life of the pregnant person. But the laws don’t explain just how close to death the person must be before the abortion can be performed. </p>
<p><a href="https://www.kff.org/womens-health-policy/issue-brief/a-review-of-exceptions-in-state-abortions-bans-implications-for-the-provision-of-abortion-services">Some states</a>, such as Georgia, Indiana and West Virginia, also include exceptions for health concerns, rape, incest or lethal fetal anomalies. </p>
<p>Most of these exceptions are <a href="https://www.nytimes.com/2023/12/17/opinion/kate-cox-abortion-texas-exceptions.html">vaguely worded</a>, leaving physicians and pregnant patients to navigate <a href="https://www.nashvillescene.com/news/citylimits/sarah-needed-an-abortion-her-doctors-needed-lawyers/article_472a621e-7fdb-11ed-bf8d-0797b6012be2.html">whether a particular abortion</a> <a href="https://www.washingtonpost.com/health/2022/07/16/abortion-miscarriage-ectopic-pregnancy-care/">would be legal</a>. </p>
<p><a href="https://www.law.virginia.edu/faculty/profile/nrc8g/2915359">As experts</a> on <a href="https://www.law.gwu.edu/sonia-m-suter">reproductive health and justice</a>, we are trying to untangle just what these different medical exceptions mean. This is an important question for legal experts, but also for doctors and caregivers, as well as people who are pregnant and their families – all trying to make sense of the various bans in effect. </p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/571258/original/file-20240124-17-qkkg3o.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="People, some holding posters, march outside of a grey building that says 'Bans off our bodies' in white writing, against a hot pink backdrop." src="https://images.theconversation.com/files/571258/original/file-20240124-17-qkkg3o.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/571258/original/file-20240124-17-qkkg3o.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/571258/original/file-20240124-17-qkkg3o.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/571258/original/file-20240124-17-qkkg3o.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/571258/original/file-20240124-17-qkkg3o.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/571258/original/file-20240124-17-qkkg3o.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/571258/original/file-20240124-17-qkkg3o.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Anti-abortion activists protest outside a Planned Parenthood clinic in Washington, D.C., on Jan 18, 2024.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/pro-and-anti-abortion-protesters-are-facing-off-in-front-of-news-photo/1935914291?adppopup=true">Aaron Schwartz/NurPhoto via Getty Images</a></span>
</figcaption>
</figure>
<h2>Steep penalties, murky legal language</h2>
<p>Because these different state laws use nonmedical language and threaten steep penalties – such as <a href="https://www.americanprogress.org/article/a-year-after-the-supreme-court-overturned-roe-v-wade-trends-in-state-abortion-laws-have-emerged/">life imprisonment</a> – for performing an abortion that violates the statute, some <a href="https://www.nbcnews.com/health/health-news/risky-pregnancy-abortion-doctors-consult-lawyers-rcna37651">physicians have been turning to lawyers for guidance</a>. </p>
<p>For example, Tennessee <a href="https://law.justia.com/codes/tennessee/2021/title-39/chapter-15/part-2/section-39-15-213/">has an exception</a> that allows abortions “necessary to prevent the death of the pregnant woman or to prevent serious risk of substantial and irreversible impairment of a major bodily function of the pregnant woman.” And West Virginia allows abortions for “nonviable” fetuses, <a href="https://code.wvlegislature.gov/16-2R-2/">defined as those with a “lethal anomaly</a> … incompatible with life outside of the uterus.”</p>
<p>These exceptions are confusing to health care providers, in part because the laws <a href="https://scholarship.shu.edu/shlr/vol53/iss5/2">assume a certainty in medicine that may not exist</a>. The laws also <a href="https://www.cnn.com/2023/12/15/us/texas-abortion-ban-emergency-medical-exception/index.html">do not rely on medical terms</a>. </p>
<p>This means that health care providers in states where abortion is banned – apart from these limited exceptions – are reluctant to provide abortions under any circumstances, <a href="https://www.latimes.com/world-nation/story/2022-07-29/fearful-of-prosecution-doctors-debate-how-to-treat-pregnant-patients">even in the face of life-threatening conditions</a> or severe <a href="https://jessica.substack.com/p/abortion-exceptions-dont-exist">fetal anomalies</a>. </p>
<p>The rate of abortions in the states where there is a near-total or total ban <a href="https://www.axios.com/2023/10/24/abortion-increase-roe-wade-state-ban">decreased by 100%</a> from April 2022, just before the <a href="https://www.oyez.org/cases/2021/19-1392">Supreme Court overturned</a> the right to an abortion, through June 2023.</p>
<h2>Legal action for answers</h2>
<p>Some health care providers and their patients have sued to find out just when abortions might be permitted. </p>
<p>Courts in different states, from the trial court to the supreme court level, are now being forced to consider these questions and have begun to weigh in with opinions that lead to even more uncertainty. At the heart of this litigation is <a href="https://scholarship.shu.edu/cgi/viewcontent.cgi?article=3550&context=shlr">how to balance doctors’ conflicting obligations</a>
to provide the best medical care, which could include offering an abortion that they fear state bans may prohibit. </p>
<p>And because each state uses its own language to define a ban and its exceptions, one court’s opinion regarding its ban does not dictate how another state’s ban should be interpreted. </p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/571484/original/file-20240125-21-169abh.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="A woman in a black outfit stands at a podium in front of a long row of women who stand looking forward." src="https://images.theconversation.com/files/571484/original/file-20240125-21-169abh.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/571484/original/file-20240125-21-169abh.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/571484/original/file-20240125-21-169abh.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/571484/original/file-20240125-21-169abh.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/571484/original/file-20240125-21-169abh.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/571484/original/file-20240125-21-169abh.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/571484/original/file-20240125-21-169abh.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Center for Reproductive Rights attorney Molly Duane speaks outside the Texas Supreme Court in Austin, joined by the plaintiffs in the organization’s abortion clarification suit against the state.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/center-for-reproductive-rights-attorney-molly-duane-news-photo/1807623427?adppopup=true">Suzanne Cordeiro/AFP via Getty Images</a></span>
</figcaption>
</figure>
<h2>Texas’ abortion ban</h2>
<p>Texas is one of the states that banned nearly all abortions in 2022. Texas law allows an abortion only when there is a “medical emergency” for the pregnant person, defined as a “life-threatening physical condition” related to the pregnancy that “poses a serious risk of substantial impairment of a <a href="https://statutes.capitol.texas.gov/Docs/HS/htm/HS.170A.htm#:%7E:text=Sec.-,170A.,induce%2C%20or%20attempt%20an%20abortion.">major bodily function</a>.”</p>
<p>In March 2023, the advocacy group Center for Reproductive Rights filed a lawsuit on behalf of a group of Texas women and two obstetricians-gynecologists, seeking clarification over when Texas’ ban allows an abortion. </p>
<p><a href="https://reproductiverights.org/zurawski-v-texas-plaintiffs-stories-remarks/">The Texas women</a>, who faced serious pregnancy-related health risks or very low odds of their baby’s survival outside the womb, were denied abortions or told to wait until death was more imminent. Some of the women got abortions outside of Texas, and others gave birth to babies who lived only briefly because of serious fetal health problems.</p>
<p><a href="https://reproductiverights.org/case/zurawski-v-texas-abortion-emergency-exceptions/zurawski-v-texas/">The plaintiffs argued</a> that the law’s confusing language – as well as the <a href="https://www.nytimes.com/2023/12/14/podcasts/the-daily/texas-abortion-ban.html?showTranscript=1">threat to physicians</a> of 99 years in jail, $100,000 in fines and a loss of their medical license – led to delays or denials of medical treatment they needed. </p>
<p>In August 2023, a Texas trial court judge blocked enforcement of the state’s abortion ban when “in a physician’s good faith judgment and in consultation with the pregnant person, the pregnant person has an emergent medical <a href="https://statecourtreport.org/sites/default/files/fastcase/additionalPdfs/processed/District%20Court%20-Order%20Granting%20Injunction%20-08.04.2023.pdf">condition requiring abortion care</a>.” This could include medical conditions that make it unsafe to continue the pregnancy or diagnosis of a fetal abnormality that would not allow it to survive after birth. </p>
<p>Texas appealed this decision to the state Supreme Court. The lower court decision is on hold until the Supreme Court issues its final decision; the court has not <a href="https://www.texastribune.org/2023/11/28/texas-supreme-court-abortion/">said when it would rule</a>.</p>
<p>Because there is still no definitive decision on how to interpret the Texas law, pregnant patients have been left in limbo. </p>
<p>Katie Cox, for example, is a Texas woman who was diagnosed when she was 20 weeks pregnant with a <a href="https://msmagazine.com/2023/12/13/welcome-to-the-pro-life-dystopia/">severe fetal anomaly</a> called trisomy 18. Carrying the pregnancy to term would have threatened her fertility, potentially preventing the mother of two from birthing more children in the future. </p>
<p>After <a href="https://www.nytimes.com/2023/12/14/podcasts/the-daily/texas-abortion-ban.html?showTranscript=1">Cox’s doctor</a> explained it was not an option in Texas to terminate the pregnancy, Cox and her doctor went to court seeking judicial approval for <a href="https://www.texastribune.org/2023/12/07/texas-emergency-abortion-lawsuit/">an abortion</a>. </p>
<p>Travis County District Judge Maya Guerra Gamble granted permission in December 2023, finding that it would be a “miscarriage of justice” to prohibit <a href="https://abc13.com/texas-abortion-ban-attorney-general-ken-paxton-katie-cox-block-ruling/14155514/">Cox from ending her pregnancy</a>. </p>
<p>But days later, the Texas Supreme Court blocked the district court ruling. It <a href="https://www.txcourts.gov/media/1457645/230994pc.pdf">conceded that Cox’s pregnancy was “extremely complicated</a>,” but refused to find that state law permitted the abortion. Cox left the state to get an abortion. </p>
<p>The Texas Supreme Court opinion in December still left many questions unanswered. The court stated that a judicial order was not required to permit a doctor to perform an abortion in the case of a medical emergency. <a href="https://www.txcourts.gov/media/1457645/230994pc.pdf">But it also interpreted the law as setting an objective standard as to whether the exception applied</a>. </p>
<p>That left open the possibility that the state could find an expert witness to challenge the physician’s judgment. </p>
<h2>A thread of uncertainty</h2>
<p>Since 2022, the Center for Reproductive Rights has also brought <a href="https://apnews.com/article/supreme-court-abortion-medical-emergencies-idaho-8ca89d7de0c1fa9256dcd27d1847e144#:%7E:text=The%20Supreme%20Court%20is%20allowing,ban%2C%20even%20in%20medical%20emergencies&text=WASHINGTON%20(AP)%20%E2%80%94%20The%20Supreme,while%20a%20legal%20fight%20continues">lawsuits in Idaho</a>, <a href="https://apnews.com/article/abortion-tennessee-lawsuit-fd630c5f55f605597d8eaa2800abbcfd#:%7E:text=WHAT%20THE%20LAWSUIT%20SEEKS%20TO,to%20legally%20receive%20an%20abortion">Tennessee</a> <a href="https://www.reuters.com/world/us/women-denied-abortions-file-lawsuits-idaho-tennessee-oklahoma-over-bans-2023-09-12/">and Oklahoma</a>, <a href="https://reproductiverights.org/exceptions-complaints-idaho-tennessee-oklahoma/">seeking clarity</a> on medical emergency exceptions in the states’ abortion bans.</p>
<p>The lawsuit’s underlying claim is that uncertainty about the scope of the exceptions has, according to the Idaho complaint, “sown confusion, fear and chaos among the medical community, resulting in grave harms to pregnant patients whose health and safety hang in the <a href="https://reproductiverights.org/wp-content/uploads/2023/09/ID-Complaint-Final-9-12.pdf">balance across the state</a>.” </p>
<p>What all of these cases and stories show is that even when abortion bans claim to allow exceptions based on medical judgment, physicians – and their patients – <a href="https://scholarship.shu.edu/cgi/viewcontent.cgi?article=3550&context=shlr">know their decisions</a> can be second-guessed and challenged in court.</p><img src="https://counter.theconversation.com/content/221389/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>The authors do not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and have disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Women in Texas and in other states with abortion bans are suing, asking for clarification on when medical exceptions could actually be granted.Naomi Cahn, Professor of Law, University of VirginiaSonia Suter, Professor of law, George Washington UniversityLicensed as Creative Commons – attribution, no derivatives.