In light of yesterday’s tragic events, I am posting an excerpt here from Randy Kennedy’s essay we published earlier this week at the NYU Democracy Project:

Because proponents of democracy are constantly battling its enemies, the ethics of fighting should be an important subject for its champions….

The arguments over the ethics of political struggle in which I have been involved have often taken place, figuratively or sometimes literally, under posters picturing a stern-looking Malcolm X alongside the slogan “By Any Means Necessary!” I object to that slogan if it means abjuring limits that morally bind dissidents. I insist upon recognizing boundaries by which to judge even terribly oppressed rebels as they struggle against repression. Acquiescing to a practice of no judgment when it involves oppressed people entails condoning a destructive sentimentality regarding the humanity of the deprived. It involves overlooking the all too obvious fact that oppressed people, too, can engage in conduct that is foolish, selfish, cruel, and otherwise reprehensible. It also involves overlooking strengths latent in people condemned to the most desperate, degraded circumstances.

Thinking back upon Nat Turner’s struggle against an absolute nullification of democracy, I insist upon holding him and his comrades accountable. I do not know precisely what the moral judgment should be, though I find it difficult to imagine an excuse for decapitating the infant. My main point, though, focuses not on the substance of any particular judgment but on the imperative that there be some judgment. The morality or immorality of figures caught up in struggles over democracy should not be overlooked either because of their downtrodden status or because of the desperate circumstances in which they find themselves. Decent struggle for democracy – the only sort of struggle that can produce decent democracy – requires that everyone’s conduct be subject to judgment – those on the bottom as well as those on top. No one should receive a pass insulating their conduct from moral assessment. The abject deprivations imposed upon Palestinians in Gaza does not free them and their allies to do anything they want in the name of resistance. Nor do the atrocities that gave rise to the State of Israel and that have been visited upon Israelis for decades free them and their allies to do anything they want in the name of self-defense. There must be limits that must be respected. Setting forth precisely the coordinates of those limits is beyond my ken, at least at this moment in this forum. For now, all I can manage is to urge those fighting for democracy to forswear the uninhibited ruthlessness connoted by boasts of being willing to use all means necessary to attain one’s aims.

I’m excited to announce we are launching The Democracy Project at NYU School of Law. Bob Bauer, Sam Issacharoff, and I will lead The Project. Here’s link to the Project’s website.

Dissatisfaction with democratic government has been pervasive for the last decade throughout the West.  We believe meeting this challenge requires engaging with diverse ideological perspectives, as well as putting the challenges to democracy here in the context of challenges to democracy in the international context.  

We are launching this Project with a series of “100 ideas in 100 days.” An exceptionally rich range of perspectives includes voices from the business community, such as Mark Cuban; former high-ranking elected or appointed government officials, such as Jake Sullivan and Chris Sununu; comparative scholars of democracy and former high-court judges in other countries, including Pratap Mehta, Kim Lane Scheppele, Larry Diamond, and Jonathan Sumption; scholars of Congress, such as Sarah Binder, Molly Reynolds; voices from civil society, including Eboo Patel; and numerous scholars and others on American democracy.

The series begins with three provocative essays:

Frances Lee, who argues we need an honest assessment of the failings of expertise and experts during Covid

Randy Kennedy, who argues against the view that those fighting for democracy should use the means their opponents use.

Nick Bagley, who argues that liberal proceduralism and excessive participatory rights have tied government in knots and caused a loss of faith that democratic governments can do things effectively.

We plan to build on these initial 100 essays over 100 days to address in many ways this era’s challenges to democratic government.

I was reading Nick Stephanopoulos’ amicus brief in the LA v. Callais case and was struck by this statement in his summary of argument:

“Based on these [the 2020 and 2024] elections’ results, Black vote-dilution plaintiffs would be unable to prove sufficient racial polarization in most places, and Hispanic litigants would be unable to do so almost everywhere.”

Because a violation of Section 2 of the Voting Rights Act in the redistricting context requires proof that voting is racially polarized (among other factors), that would mean, if Nick is right, that less is at stake as a practical matter in the Supreme Court’s Callais case than many commentators assume. As Nick concludes, in the deep South, polarized voting and residential segregation is still strong, which means this is where Sec. 2 is likely to continue to have its most significant effects.

In theory, intentional discrimination claims could still be brought, but if voting is not racially polarized, there would be less of a partisan motivation to engage in intentional discrimination in designing districts.

This is an important new study from Andrew C. W. Myers, Maria Silfa, Alexander Fouirnaies,
and Andrew B. Hall.

The paper also illustrates, though it doesn’t emphasize, the role that the rise of donations from individuals — including especially small donors — contributes to polarization. Donors have different motivations. Corporate PACs mainly donate to seek access to officeholders; as a result, they tend to give to incumbents and do so with much less emphasis on ideology. Individual donors, by contrast, are ideologically motivated. I have explored the rise of individual donors and the connection to polarization in my essay, Campaign Finance and Political Polarization.

Here’s the abstract from this new empirical paper:

Incumbents have long enjoyed a substantial fundraising advantage in American elections, but it remains unclear whether this advantage has persisted as elections have become more partisan and nationalized in recent years. Pairing a regression discontinuity design with a comprehensive dataset covering U.S. House, U.S. Senate, gubernatorial, statewide executive, and state legislative elections, we present the first systematic evidence on the evolution of the financial incumbency advantage. Overall, we find that the financial advantage enjoyed by incumbents at all levels of government has declined
25% to 50% over the last decade. This decline, however, is driven entirely by individual donors, and especially small-dollar donors; in contrast, the advantage among corporate PACs has remained stable—or even increased. Taken together, these shifts reveal a campaign finance landscape that is increasingly shaped by partisanship on one side and strategic investment on the other.

And here is part of the abstract from Campaign Finance and Polarization:

In an era I have called “hyperpolarized democracy in America,” delivering effective government has become extremely difficult. Much has been written about various institutional factors that contribute to the rise of polarization. But campaign finance has received minimal attention in these discussions. Most campaign finance discussion focuses on issues of political equality or the risks of political corruption. The failure to focus on the polarizing effects of our privately-financed elections is surprising, because one of the most robust findings in the empirical literature on campaign finance is that donors are much more ideologically extreme than other citizens. Nor has the emergence of small donors in the last several election cycles changed this pattern. Small donors are at least as ideological as large donors, perhaps more so…{This essay} then argues that, once we recognize the relationship between individual donors and polarization, there are implications for the appropriate direction of political reform.

Brad Smith, former FEC Commissioner and (retired) professor of law at Capital University, has long been one of the major advocates for the view that much of campaign-finance regulation violates the First Amendment. In an amicus brief in the NRSC v. FEC case on party-coordinated expenditures, the Institute for Free Speech, which Brad founded and chairs, along with the Manhattan Institute, now takes the position that the Elections Clause, which is the source of Congress’ power to regulate campaign finance, does not permit Congress to regulate political campaigns at all, as opposed to the voting process itself.

The Elections Clause, located in Article I, Section 4 of the Constitution, states that “The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of choosing Senators”. Brad argues that the “time, place, and manner of holding Elections” does not include the campaign process.

I want to point some of the consequences, were this position to be accepted. Because states only have power to regulate national elections through the Elections Clause, this position would mean no government would be able to regulate the campaign process for federal elections. It would seem to mean that even congressional regulation that requires disclosure of the source of large (or any) campaign contributions would be unconstitutional. Legislatures could not ban or regulate direct contributions of unlimited amounts from the general treasury of corporations or unions (current federal law bans those contributions in federal campaigns).

I don’t think there’s much the chance the Court would endorse this position. But it’s worth considering the consequences were the Court to do so.

Update: I meant to explain that unlike in certain areas, where states have reserved police powers they can invoke if Congress does not or cannot act, in the area of national elections, states have no reserved powers. The states only have power to regulate national elections due to the enumerated grant of power in the Elections Clause. That’s why their power over national elections cannot be broader than Congress’ powers.

The poll also finds that only 25% of independents are satisfied with the way things are going in the US:

In preparing for a class on presidential powers I’ll be teaching this fall with Bob Bauer, I made this chart of the average number of executive orders per year each President has issued over the course of their presidency. The data comes from the American Presidency project. Having made it, I thought it would be interesting to share:

Troubling story out of Hawaii, hat tip to Charles Stewart for flagging this:

The next meeting of the Hawaiʻi Elections Commission on Wednesday is expected to be dominated by recent findings of discrepancies in the number of drop box and mail-in ballots cast on Kauaʻi during the 2024 general election.  

That the state’s official count of those ballots exceeded the number that the county said it collected and submitted is not in dispute.

But accounts of just how great that discrepancy was vary — a lot.

The numbers range from 25 according to the state’s chief elections officer to 39 according to the Hawaiʻi Supreme Court to 661 according to an Elections Commission permitted interaction group and up to 3,772 based on the initial Kauaʻi County ballot envelope count.

Civil Beat has reviewed the tranche of public records, correspondence and court submissions and confirmed there were inconsistencies that raise questions about the management of mail-in ballots in Hawaiʻi.

However, gaps in the chain of custody records during the county’s ballot collection all the way through the state’s counting make it impossible to say with certainty who’s right about how big the difference really was. 

Hawaii's difficulties reconciling mail ballots in the 2024 election will undermine confidence in mail-balloting nationwide and illustrate the reality that a skeptical world is watching. Jen Morrell has good quotes in this article. I hope this leads to serious reforms.…

— Charles Stewart III (@cstewartiii) August 25, 2025

As most separation of powers/administrative law scholars know, the Roberts Court has consistently applied the unitary executive branch theory (UET) across Democratic and Republican administrations.  That theory maintains, at a minimum, that the President must have the power to remove at will the heads of any federal agencies or commissions that wield substantial executive power.   I think the Roberts Court is wrong about the UET. But if it’s wrong, it’s been consistently wrong, regardless of who the President is.

I bring this up only because a recent New York Times essay, to which I contributed, contains a flatly wrong claim about this issue from Stanford political scientist Adam Bonica.  I will first briefly describe the history of this issue, then address Bonica’s disturbingly incorrect claim.

The Supreme Court started on the path toward endorsing the unitary executive branch theory long before the first Trump administration.   President Obama was in office when the Roberts’ Court first endorsed this conception of strong presidential power in Free Enterprise Fund v. Public Company Oversight Board (2010) (full disclosure:  I filed an amicus brief in that case defending the Sarbanes-Oxley Act on behalf of all former Chairmen of the SEC).  That decision held the structure of the Public Company Accounting Oversight Board unconstitutional because Congress had left the President too little direct or indirect control over the Board’s members. 

During the first Trump administration, the Court then invalidated the structure of the Consumer Financial Protection Bureau because Congress had sought to limit the President’s power to remove the head of the CFPB only on the basis of certain limited grounds.   The next major decision in this line, United States v. Arthrex, further empowered the President during the Biden administration.  Indeed, that decision expanded the UET into new terrain by holding that the President also had to have effective control over administrative adjudications.  

UPDATE: During the Biden administration, the Court also decided Collins v. Yellen (2021), in which the Court held unconstitutional the for-cause removal restriction Congress had enacted to ensure the independence of the Director of the Federal Housing Finance Agency, who was the single figure who headed that agency. The same day the Court decision came down, President Biden then fired the head of the agency.

President Biden then took a number of further actions based on the UET.  Shortly after taking office Biden fired the head of the Social Security Administration, despite statutory protections that insulated his removal from direct presidential control.  He also fired a number of other officials who had long been thought to be independent because they served fixed terms of office.  Indeed, a legal commentator in Slate characterized Biden as “the first unitary executive.”  None of these firings reached the Supreme Court. 

Entering the second Trump administration, what remained against the UET was the 1935 case, Humphrey’s Executor v. United States, which held that Congress could create independent, multi-member agencies, such as the Federal Trade Commission, whose heads the President could not fire at will, but only for “good cause.” But it was widely expected that the Trump administration would challenge that decision and that the Roberts Court would take the next step in its commitment to the UTE by agreeing with the President and overturning Humphrey’s Executor.   

When President Trump put the issue squarely before the Court by firing the heads of various independent agencies, the lower courts held these firings illegal. Those courts are obligated to follow Humphrey’s Executor. In two cases on the emergency docket, the Court has stayed these lower court rulings on procedural grounds.  Technically, the Court has not yet overruled Humphrey’s Executor, but it’s widely recognized that these actions make it virtually inevitable that the Court, unsurprisingly, is going to overrule Humphrey’s Executor.  Indeed, Justice Kagan’s dissent for three Justices asserts that the Court has in effect already overruled Humphrey’s Executor, even before formally interring it.  One can argue about procedural aspects of these stays, but on the substance of the UTE, these are probably the least unexpected decisions on executive power of the current Court. 

Indeed, the most important brake the Court has suggested on the UET has come during Trump’s second term, in statements from individual Justices that the President does not have the power to fire at will the Chairman of the Federal Reserve.  Critics have questioned whether there’s a principled distinction between the Federal Reserve and other agencies, but the conservative Justices have made these statements in direct response to President Trump’s threats to remove Chairman Powell.

Bonica, however, asserts that the Court has been partisanly manipulative and opportunistic in how it applies the UTE.  He levels this charge in extremely strong terms: “If the unitary executive theory were a genuine constitutional principle, its adherents would apply it equally to all presidents, regardless of party. The evidence shows it is a principle of convenience, invoked to amass power and discarded when it might constrain allies.”

To back this up, he offers two pieces of evidence.  First: “This situational approach is most visible in the actions of the theory’s own advocates. When President Biden took office and fired a handful of Trump-appointed holdovers, he was met with a flurry of lawsuits from the very conservatives who champion UET. Suddenly, these activists argued for the sanctity of the statutory tenure protections they otherwise seek to destroy.”

But the positions lawyers take in litigation obviously tells us nothing about whether the Court is applying the UET consistently.  On top of that, Bonica doesn’t tell us (or link to) who the lawyers are he has in mind behind this alleged “flurry of lawsuits” from conservatives.  In poking around a bit, the only suit I’ve come across that fits Bonica’s description is one that Russell Vought brought, in which Stephen Miller’s law firm represented him, when Biden fired Vought from the Naval Academy Board of Visitors.  But it doesn’t take a lot of strategic sense to recognize that Vought brought that suit hoping to lose it as a way of more deeply entrenching the UET.  Vought surely cares more about solidifying that doctrine than he cares about being on the Naval Board of Visitors.  In any event, whatever the motivation for this one suit, it has nothing to do with whether the Roberts Court has applied UET consistently.

Bonica’s second and only other piece of evidence, which he calls “the most telling evidence,” is that Justice Thomas voted against the UET in the Arthrex case, during Biden’s presidency.  But Bonica doesn’t tell readers that Thomas was in dissent, along with the three more liberal Justices.  Nor does Bonica tell readers that the Court upheld the UET claim in that case, during Biden’s presidency, in a particularly expansive opinion endorsing the UET. 

After that, Bonica leaves the UTE behind and shifts to brief discussion of other issues concerning executive power.  He criticizes the Court for not overturning universal injunctions during the Biden administration and presents data on how often the Court has used the emergency docket to uphold or reverse lower courts during the Biden and Trump years.  Jack Goldsmith recently took issue with Bonica’s use of data.  I don’t want to prolong this piece with my own views about the extent to which the Court has or has not been consistent on other executive power issues.  One big test will come with how the Court applies “the major questions doctrine” during the Trump administration.  But the Roberts Court has had a clear commitment to the unitary executive branch theory for many years and it’s been consistent about that – for better or worse.

From the WSJ, which is paywalled:

Five years ago, Georgia’s Republican Secretary of State Brad Raffensperger was banished to the political wilderness. 

Donald Trump blamed the mild-mannered election chief for his narrow 2020 Georgia defeat, branding him a RINO (Republican in Name Only), “incompetent and strange.” Death threats poured in. GOP senators demanded he resign for reaffirming, after recounts and audits, that Trump lost the battleground state.

The attacks stunned Raffensperger, a businessman and devout Christian who came late to public life. One consultant dubbed him “Dead Brad Walking.” 

Yet something unexpected happened on the way to his demise: He not only survived, winning re-election in 2022, but has become a serious contender in Georgia politics.

Now Raffensperger, 70 years old, a multimillionaire construction magnate, is considering a run for higher office next year, likely for governor to replace term-limited GOP Gov. Brian Kemp, or U.S. Senate to challenge Democrat John Ossoff. A May Cygnal poll found Raffensperger slightly ahead of Ossoff in a theoretical matchup, with other declared or potential GOP candidates trailing Ossoff.

https://x.com/RickPildes/status/1954187436021432390

Fix the Court posts an audio recording of Justice Sotomayor speaking at an interview at the University of Zurich in July of 2024. Apparently, Fix the Court just obtained this recording recently. A Justice’s talk at a university is usually a public event, but sometimes these events are done under Chatham House rules, meaning that the remarks are not supposed to be repeated. I don’t know what the context was in this respect for this interview or why the audio has just now become available.

According to the transcript, her comments about term limits for the Court included these remarks:

In the American system, the problem with a term limit is how will they institute it, because I am promised my job for life, and that can’t be taken away constitutionally — I don’t believe even with a constitutional amendment — because you cannot have a retroactive law changing something that you’ve earned.

So that means that a current court at the moment these term limits exist, those justices will be there for as long as they want, so you might not get the value of term limits in the United States because of that inherent difficulty.

I do not agree that it would be unconstitutional to adopt term limits via a constitutional amendment that would apply to the sitting Justices. But for those who think the Supreme Court would uphold the constitutionality of a statute imposing term limits on the sitting Justices, these remarks should certainly be sobering.

In Common Cause v. Rucho, Chief Justice Roberts pointed to the significant reforms to redistricting that had been taking place in the states, as a way of asserting that the federal courts and constitutional doctrine were not the only avenues to address the issue. As we are now seeing with the prospect of mid-decade redistricting, a state-by-state approach might turn out to be an unstable equilibrium.

If red states like Texas go ahead with mid-decade redistricting, and blue states like CA and NY decide to adopt measures that respond in kind, there will now be questions about what will happen after the 2030 Census and round of redistricting. Will the states with commissions go back to using them or will they attempt to take measures, such as new voter initiatives, to repeal the reforms they had enacted?

This collective action dynamic is what led Congress to pass the Apportionment Act of 1842, which required all states to use single-member districts to elect members of Congress. Before that, some states wanted to use single-member districts, other states wanted to use at-large elections. But “state choice” was an unstable equilibrium. As a partisan matter, states that used single-member districts weakened themselves in Congress compared to those that used at-large elections. If a state using single-member districts had five representatives, it might end up with a 3-2 delegation in partisan terms (say a net of 1 seat for Party A). If a smaller state with only three representatives used at-large elections, it would be likely to have all three represent the same party (so at net of 3 for, say, Party B). So even the first state would be driven to using at-large elections, even if it preferred to use single-member districts.

That’s why Congress imposed a uniform, national requirement. In the redistricting context, such a uniform, national requirement to constrain partisan gerrymandering could have come from the Court or could come from Congress. And absent a nationally uniform requirement, it’s unclear how “free” states will be as a practical matter to choose to constrain partisan gerrymandering. Absent a national solution, we will see how much unraveling of prior state reforms takes place, both in the short term and in the run-up to the 2030 round of redistricting.

Disclosure: I represented Common Cause in Common Cause v. Rucho.