The battle between facts and lies, truth and untruth, is one of the most pressing issues democracies face.
Peter Pomerantsev, author and a senior fellow at the London School of Economics and the SNF Agora Institute at Johns Hopkins University, joins The McCourtney Institute for Democracy's podcast, "Democracy Works," to discuss the scope of the problem and how to move forward.
Black and white sketch of a courtroom in session.
The Supreme Court’s recent decisions in Trump v. Slaughter and Trump v. Cook have understandably been read as cases about presidential control over executive officers. But they may have implications for a different and largely overlooked question lurking in a pending Supreme Court case: Who may exercise the judicial power of the United States in the territories?
This question made a cameo appearance in the Slaughter case. The majority noted in a footnote that “a justice of the peace in the District of Columbia” exercises “the judicial power of the District, just as territorial judges exercise the judicial power of their respective territories” — not the executive power. Therefore, the court went on, “the fact that Congress may prohibit the President from firing the District’s judges (who do not exercise his power) says nothing about whether Congress may prohibit the President from firing his subordinates (who do).”
This brief language addresses an important issue underlying multiple recently denied certiorari petitions — and one the Court has the opportunity to address in the recently granted case Department of the Air Force v. Prutehi Guahan. Where do territorial courts fall in our constitutional framework? Slaughter appears to foreclose the idea that territorial courts fall within the executive branch and that the president may remove their judges. But a closer examination of history and precedent reveals the answer is not so clear cut.
The Court held nearly 200 years ago in American Insurance Company v. Canter that Congress may constitutionally withhold Article III protections — such as life tenure during good behavior — from judges serving in territorial courts.
Canter concerned Congress’s establishment of four-year fixed terms for judges in Florida, which was then a territory. To uphold the terms, the Court announced a territorial-courts exception to Article III’s protections. It analogized Congress’s powers under the Territorial Clause to the power of a state to structure its state government: Because Article III extends only to courts exercising the “judicial power of the United States,” the Court explained, both territorial and state judges exercising the judicial power of a state are not required to have life tenure even if they may hear federal claims.
The Court also noted that the Florida territory was destined for eventual statehood. Conferring lifetime tenure on the judges of Florida’s territorial courts would saddle the future state with a cadre of territory-era holdover judges holding life tenure on their state courts, the Court said. This would not only interfere with the state’s ability to determine the length of judicial terms but would effectively allow the president to pack the courts of newly admitted states and potentially influence state law for decades.
But Canter left a significant question unresolved: What happens if Congress or a territorial legislature modifies the jurisdiction of a territorial court so that it ceases to be a hybrid court and exercises only the judicial power of the United States — nothing more and nothing less?
To understand why this question matters, we must revisit the reasons the framers mandated that federal judges serve without term limits in the first place: to insulate them from the president and Congress. As the Court put it in Stern v. Marshall, life tenure allows federal judges to issue decisions “with the clear heads and honest hearts deemed essential to good judges” and not with “an eye toward currying favor” to keep their jobs. It follows that, in order to ensure only truly independent judges are making decisions in which the president or Congress might have an interest, only judges who possess Article III protections may generally exercise the “judicial power of the United States.”
For that reason, the Court held in Stern that limited-term bankruptcy judges cannot enter final judgments on state law counterclaims, in Glidden Company v. Zdanok that judges of the former Courts of Claims and Customs Appeals were required to receive Article III protections, and that executive branch officials such as those in the Securities and Exchange Commission cannot exercise the judicial power of the United States. And in the context of the territories, the Court deemed it error in Nguyen v. United States for a judge of the District Court for the Northern Mariana Islands to sit by designation on a panel of the U.S. Court of Appeals for the Ninth Circuit. Notably, the Court in Nguyen deemed the error so serious that it heard it for the first time on certiorari, establishing a rare exception to the principle that it is “a court of review, not of first view.”
The district judge in Prutehi Guahan decided statutory questions involving environmental review under the Administrative Procedure Act and the Resource Conservation and Recovery Act — in which the president could have a preferred outcome, as explained further below. But the underlying case comes from the District Court of Guam, a court that is structurally identical to that at issue in Nyugen. The court’s one judge falls under Canter’s territorial-courts exception: She exercises the full jurisdiction of a district court of the United States yet does not enjoy Article III tenure. Instead, according to a federal statute, the judge serves a renewable 10-year term and may be removed by the president “for cause.”
As the U.S. Supreme Court prepares to hear the case, overlooked is the threshold question of whether the District Court of Guam could constitutionally hear the Prutehi Guahan case in the first place.
Until recently, this was a purely academic matter. Territorial governments were generally ephemeral and short-lived. While Congress established Article III federal district courts in the states to exist alongside state courts, in nearly all cases only one territorial court system existed in each territory. And after admission to statehood, Congress would often dissolve the territorial courts, create Article III federal district courts in the new state, and provide for the transfer of pending cases from the former territorial court to the newly created federal and state courts.
This process began to break down in the late 19th century, when the United States acquired former Spanish colonies such as Guam and Puerto Rico as spoils of war. The unabashedly racist views of the political and legal elites of the time influenced the Supreme Court to create, in the Insular Cases, the so-called territorial incorporation doctrine. The doctrine has allowed the federal government to hold them as territories for more than 125 years with no clear path to statehood. But evolving views on racial equality as well as greater fidelity to the text of the Constitution have undercut the legitimacy of the Insular Cases. And Congress has since authorized all five inhabited U.S. territories to govern themselves with their own court systems, established by their territorial constitution or similar governing document.
Congress created the District Court of Guam in 1950 as a hybrid court with “the jurisdiction of a district court of the United States in all causes arising under the Constitution, treaties, and laws of the United States” and “original jurisdiction in all other causes in Guam, jurisdiction over which has not been transferred by the legislature to other court or courts established by it” as well as “appellate jurisdiction” over such courts created by the Guam legislature. Its judge would be nominated by the president with the advice and consent of the Senate, but would only “hold office for the term of four years and until his successor is chosen and qualified unless sooner removed by the President for cause.”
As the Supreme Court noted in Guam v. Olsen, legislative history reflects that Congress created a hybrid court rather than a true Article III federal district court in 1950 due to “concern that there would not be sufficient federal question litigation to justify a separate district court in Guam” in addition to a territorial court system. But three decades later, the Guam legislature exercised its authority to create a territorial trial court, the Superior Court of Guam, which divested the district court of the entirety of its original jurisdiction over territorial law. Nevertheless, the district court even then remained a hybrid court: It could hear federal question cases — but did not have diversity or bankruptcy jurisdiction — and it retained appellate jurisdiction to review decisions of the Guam Superior Court.
Then, in 1984, Congress conferred the district court with the full jurisdiction of an Article III federal district court. It also authorized the Guam legislature to create a local appellate court which, once established, would divest the district court of its appellate jurisdiction over the territorial trial court. The legislature did so in 1992; the Supreme Court of Guam now serves as the territory’s equivalent of a state court of last resort.
The result is a court that possesses the entire jurisdiction of a district court of the United States — exactly like an Article III judge. Yet its judge lacks the tenure and compensation protections of Article III and continues to serve a limited term and remains statutorily subject to unilateral removal by the president.
The Prutehi Guahan case clearly illustrates the danger in vesting the Article III federal judicial power in a judge who lacks Article III protection. The judge assigned to the case, Frances Tydingco-Gatewood, was nominated by President George W. Bush and confirmed by the Senate in 2006. Although her initial 10-year term expired on August 4, 2016, she remains in office under a holdover provision allowing an incumbent judge to continue to serve until nomination and confirmation of a successor.
Her continued service has been a political football across three presidential administrations. President Barack Obama renominated her for a second 10-year term in the final year of his presidency, but Congress returned the nomination when it adjourned sine die. Then, in the final months of his first non-consecutive term, President Donald Trump attempted to replace her by nominating Guam trial court judge Maria Cenzon to the position. However, the Senate did not confirm Cenzon before President Joe Biden assumed office. Guam Gov. Lourdes “Lou” Aflague Leon Guerrero publicly lobbied Biden to withdraw the Cenzon nomination and to renominate Judge Tydingco-Gatewood. While Biden withdrew Cenzon, he did not immediately announce a new nominee.
Three months later, the Biden administration filed the permit application with the Guam Environmental Protection Agency (overseen by Guerrero) seeking to detonate hazardous waste on Tarague Beach in Guam. This application is the subject of the Prutehi Guahan case, in which Tydingco-Gatewood granted the United States’ motion to dismiss — a decision the Ninth Circuit would later reverse. Biden later renominated Tydingco-Gatewood to her position. But as with prior nominations to the position, the Senate did not act on it due to its late timing. Since commencing his second non-consecutive term, Trump has neither renominated her nor submitted any other nominee to serve on the district court.
There is no evidence that Tydingco-Gatewood dismissed the complaint to curry favor with either Biden or Guerrero. But that is not the point. Article III does not require proof that a judge has acted improperly before its protections matter. It reflects a structural judgment that federal judicial independence should not depend on the character, courage, or self-awareness of any individual judge.
Had Tydingco-Gatewood’s 2006 confirmation conferred Article III tenure, there would be no need for her to seek reappointment, no presidential decision to await, and no occasion for litigants or the public to wonder whether a politically sensitive ruling might bear on her continued service. That is the value of Article III. It makes independence ordinary rather than heroic.
Prutehi Guahan therefore presents more than a dispute over environmental or administrative law. It arrives at the Court from a tribunal that now exercises the jurisdiction of a federal district court, but whose judge does not receive the protections constitutionally required for the exercise of federal judicial power. And under its Nguyen precedent, the Court could — and should — address this structural problem even if the parties did not. The Virgin Islands Bar Association, however, filed an amicus curiae brief bringing the issue to the Court’s attention.
To do so, the Court need not overrule the Insular Cases, reexamine Canter, or resolve every question about territorial courts. Rather, a straightforward application of past precedent, including Slaughter, Stern, and Glidden, would allow the Court to sever and hold unconstitutional the statutory language providing for a 10-year term and presidential removal and hold that the subsequent amendments to its jurisdiction converted the District Court of Guam to an Article III court. At a minimum, the Court could dismiss the writ as improvidently granted or vacate and remand the case, sending it back to the Ninth Circuit for reconsideration in light of Slaughter.
Regardless of how it does it, the Supreme Court should not pretend this issue does not exist. Slaughter reminds us that territorial judges have historically been treated differently because they do not exercise the judicial power of the United States. Cook reminds us that even for-cause protections allow for unilateral presidential removal so long as minimum due process standards are met. For litigants in Guam, the Virgin Islands, and the Northern Mariana Islands, judicial independence should not depend on geography. If a court exercises the judicial power of the United States, the Constitution requires that its judges receive the protections of Article III — and the Supreme Court should take this rare opportunity to effectuate that promise.
Where Do Territorial Courts Fall in Our Constitutional Framework? was first published by State Court Report and republished with permission.
Anthony M. Ciolli is practicing faculty at St. Mary’s University School of Law. He was formerly the president of the Virgin Islands Bar Association and serves as special assistant to the Chief Justice of the Virgin Islands. The views expressed herein are solely his own and not those of the judicial branch of the Virgin Islands, the Virgin Islands Bar Association, or any of their officers or employees.
Silhouette of a hand holding a vote putting in a ballot box in front of the national flag Stars and Stripes of USA.
The 21st-century Supreme Court Justices appointed by presidents who did not win the popular vote have fundamentally reshaped the affordability crisis by dismantling federal regulatory authority, weakening consumer protections, and expanding landlords' and local governments' property rights over renters.
Specifically, five current justices fit this description: Chief Justice John Roberts and Justice Samuel Alito (appointed by George W. Bush following the 2000 election), alongside Justices Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett (appointed by Donald Trump following the 2016 election). This conservative supermajority has heavily influenced cost-of-living metrics through historic rulings in administrative, housing, and financial law.
Dismantling the Administrative State (Chevron Deference)
The most sweeping mechanism of this judicial cohort is the systematic stripping of power from federal regulatory bodies, culminating in the historic decision Loper Bright Enterprises v. Raimondo (2024), which officially overturned Chevron deference.
Impact on Housing Policies: Federal agencies like the U.S. Department of Housing and Urban Development (HUD) can no longer rely on judicial deference when interpreting ambiguous lending or housing statutes. This opens the door for real estate developers and apartment managers to challenge long-standing affordable housing quotas, design regulations, and fair housing rules.
Targeting Consumer Safety: Financial watchdogs like the Consumer Financial Protection Bureau (CFPB) now face severe hurdles in capping hidden consumer fees (such as credit card late fees or predatory banking surcharges), making daily necessities more expensive.
Striking Down Tenant Protections and Student Debt Relief
During periods of severe economic distress, these appointees consistently blocked executive branch initiatives designed to ease immediate financial burdens on low- and middle-income families.
Eviction Moratorium Invalidation: In 2021, the conservative majority struck down the CDC’s federal eviction moratorium. This ruling directly exposed millions of behind-on-rent families to displacement during a peak period of pandemic-era inflation and soaring rental costs.
Student Loan Forgiveness Block: In Biden v. Nebraska (2023), the Court invoked the "major questions doctrine"—a legal framework championed by the Trump and Bush appointees—to strike down the administration's $400 billion student debt relief program. By preventing this relief, the Court left millions of borrowers with high monthly debt-to-income ratios, directly limiting their disposable income and ability to afford housing or childcare.
Criminalization of Homelessness and Local Market Distortions
Beyond targeting federal power, these appointees have actively shifted power dynamics in local housing markets.
Enabling Anti-Homelessness Laws: In City of Grants Pass v. Johnson (2024), the conservative majority ruled that local governments do not violate the Eighth Amendment by fining or arresting unhoused individuals for sleeping outside. Legal experts and housing advocates point out that prioritizing punitive law enforcement over affordable housing infrastructure worsens cyclical poverty and does nothing to reduce underlying housing costs.
Deterring Rent Control: While the Court has not flatly banned municipal rent stabilization laws nationwide, its recent rulings on property rights have encouraged corporate landlords to challenge local rent-control measures in lower federal courts, creating instability in municipalities trying to cap skyrocketing rents.
SCOTUS appointees are the Tip of the Iceberg of the problems with Non-Popular Vote Presidents, which are a function of the winner-take-all (WTA) Electoral College regime, that can be remedied, without a constitutional amendment, by the National Popular Vote Interstate Compact (NPVIC).
The NPVIC is an agreement among U.S. states and the District of Columbia to award all their electoral votes to the presidential ticket that wins the overall popular vote in all 50 states and the District of Columbia. It is considered a pragmatic, state-based initiative because it aims to ensure the winner of the national popular vote wins the presidency, operating within the existing Electoral College framework by utilizing states' constitutional authority to appoint electors. The NPVIC has been adopted by 18 states and Washington, D.C., representing 222 electoral votes. It needs 48 more electoral votes to reach the 270-vote threshold required to go into effect. Member states enact legislation that legally binds them to award their electors to the winner of the national popular vote, regardless of whether that candidate won the majority in their specific state.
November 3, 2026, opportunity: elect governors and state legislatures, regardless of their party affiliation, that will adopt the NPVIC, a viable pathway to reform, especially in the following states:
Nevada, Michigan, Georgia, Pennsylvania, North Carolina, Wisconsin, Arizona.
Hugh J. Campbell, Jr., CPA, is a Governance, Risk & Compliance (GRC) professional and a student of W. Edwards Deming, the American statistician often credited as the catalyst for the Japanese economic miracle after WWII.
women in a courtroom
For centuries, lawyers have been leaders in establishing and protecting our democracy and its cornerstone, the rule of law. They have challenged tyrants, whether it be King George III in our nation’s founding or President Trump, a wannabe king, today.
Lawyers swear to do this in an oath, which is a condition of admission to the bar, to “support the Constitution of the United States.” This sworn duty continues a centuries-old tradition.
Twenty-five lawyers signed the Declaration of Independence (of fifty-six signatories). The chief author, Thomas Jefferson, was a lawyer.
Signing took considerable courage. That act was treason under English law, punishable by death or imprisonment, and it put the signatories’ lives, families, and estates at great risk.
The Declaration was an indictment of “tyrant” King George III, listing twenty-seven specific grievances. It is best known for recognizing the people’s fundamental rights (to “Life, Liberty and the Pursuit of Happiness”); declaring the independence “of the thirteen united States of America;” and especially for its statement that governments “deriv[e] their just powers from the consent of the governed.” This concept of popular sovereignty is the foundation of our democracy.
Lawyers and those with legal training also helped draft and secure the adoption of the U.S. Constitution (twenty-three of the thirty-nine signatories in 1787 were lawyers or legally trained), the Bill of Rights (the first ten amendments to the Constitution), and later Constitutional amendments.
For centuries, lawyers have invoked the structural provisions of the Constitution (especially those creating checks and balances) and the amendments to protect the lives, liberty, and property of American citizens and residents from arbitrary and vindictive governmental actions. Throughout our history, lawyers have also challenged “popular tyranny” and angry mobs, even when representing those hated by the community has imperiled their practices, families, and community standing. One historic example was the defense by future president John Adams, at age thirty-four, of eight British soldiers and their officer in what is known as the 1770 Boston Massacre, in which five colonists were shot and killed.
Adams was a strong patriot and staunch critic of the Crown, but he accepted this representation, knowing that public hatred of the soldiers would extend to his defense of them. Based on Adams’ defense of self-defense (from the angry rock-and ice-throwing crowd), the jury acquitted the officer and six soldiers and convicted two others of manslaughter (with, as punishment, an “M” branded on their thumbs).
Adams said later that this was “one of the best Pieces of Service I ever rendered my Country." He was celebrating his role, the lawyer’s role, in assuring that the rule of law was applied under the most trying circumstances in our embryonic nation.
We need to call on these traditions today. Our president and his executive branch are attacking our democracy and the rule of law in ways that have no parallels in our history.
In a very incomplete list of unconstitutional actions, they have appropriated powers constitutionally committed to Congress; sought to federalize elections, although the Constitution unambiguously commits the control of elections to state and federal legislatures; and punished law firms, individuals, and many organizations for actions protected by an array of constitutional provisions.
The worst, however, for many has been the seizure of the Department of Justice. The president has converted this once quasi-independent and well-respected defender of the rule of law into his personal law firm and committed its leadership to his angry and legally meritless campaign of revenge.
Yes, there have been and are lawyers who worked hard, and work hard today, to subvert our democracy. President Nixon’s Watergate lawyers and President Trump’s DOJ leadership have much in disgraceful common.
What can lawyers do today? Fight back. Honor our long tradition.
Join Lawyers Defending American Democracy. LDAD offers a menu of activities that draw on the distinct skills of lawyers across the full range of practice areas.
Educate your community. Lawyers’ legal ethics rules encourage lawyers to “further the public's understanding of and confidence in the rule of law.” This educational function is critically important today. Justice Brandeis, dissenting in Olmstead v. United States, said:
Our Government is the potent, the omnipresent teacher. For good or for ill, it teaches the whole people by its example. Crime is contagious. If the Government becomes a lawbreaker, it breeds contempt for law; it invites every man to become a law unto himself; it invites anarchy.
Lawyers need a counter-teaching campaign to make it clear to all that today’s law-breaking federal government is not even within the outer limits of acceptable norms. It is an extraordinarily dangerous aberration that rejects the rule of law and seeks to nullify our legal and traditional commitments to democracy.
Where can lawyers do this? Through newspaper opinion pieces and letters to the editor, on social media platforms and in talks, for example, at public libraries and before civic and neighborhood groups, fraternal organizations, and church groups, among others.
If you do what you can do, whatever that may be, you too may be able to echo John Adams' words that it was “one of the best pieces of service I ever rendered my country."
Michael Millemann is co-lead of the Maine chapter of Lawyers Defending American Democracy and is a retired lawyer and law professor. Shortly before retiring, he developed and taught a course for first-year law students on the lawyer's role in protecting democracy.
This series from Lawyers Defending American Democracy connects the words of the Declaration of Independence and the Constitution to current events that threaten democracy and the justice system. Each piece highlights the unique responsibility lawyers carry—through their oath, professional obligations, and roles in their communities—to help the public understand what’s at risk and to speak out when democratic principles are under threat. LDAD’s call to action is straightforward: as the Founders once did, we must recognize threats to constitutional values, demand accountability, and act to defend them.
Xavier Becerra
Political strategist, IVN commentator, and The Latino Century author Mike Madrid has a blunt warning for California: The campaign to repeal the state’s nonpartisan Top Two primary would disproportionately silence the fastest-growing segment of the electorate.
In a new Sacramento Bee op-ed, Madrid argues that Latino voters—particularly those who do not align with either major party—played a significant role in California’s record-setting June primary.
The state counted more than 9.4 million ballots, the highest turnout for a California gubernatorial primary since recordkeeping began in 1914. Turnout among Latino independent voters tracked near 16.5%, roughly 40% higher than in 2022.
Their participation is also growing three times faster than the electorate overall.
Madrid points to Xavier Becerra’s success in the governor’s race as evidence of what can happen when these voters participate. Becerra advanced from a crowded field while billionaire Tom Steyer, who ran what Madrid characterized as the race’s most partisan campaign, fell short.
The larger issue, Madrid argues, is that Latino voters are moving away from strict loyalty to both major parties. California’s Top Two system allows them to vote for any candidate without first choosing a party ballot.
Repealing the system would once again make their participation dependent on rules established by the political parties.
Madrid calls the repeal campaign “voter suppression aimed at the fastest-growing share of the electorate, dressed up as a return to party order.”
Polling suggests Latino voters are not asking California to go backward. A May Independent Voter Project survey found that 53% wanted to retain Top Two or expand the number of candidates who advance.
Only 22% supported eliminating the nonpartisan system and restoring partisan primaries.
Madrid’s message is simple: Latino independents showed up, helped reshape California’s most important statewide race, and demonstrated their growing political influence.
Party insiders should not respond by shutting the door in their faces.
California Latinos Showed Up—Now Party Insiders Want to Shut Them Out is republished as part of The Fulcrum’s partnership with IVN and the Latino News Network to expand voter‑first journalism and strengthen public‑centered coverage of democracy.
