Term limits for Supreme Court Justices have been proposed as a way to make the Court more representative of the partisan makeup of the country. In this episode of You Don’t Have To Yell, Suzanna Sherry, Professor of Law at Vanderbilt University, explains how this would result in more partisan judges, more partisan rulings, and legal instability.
Last month, the Department of Justice initiated a baseless lawsuit against the Southern Poverty Law Center (SPLC). This retributive action, like the previous frivolous actions brought against other individuals and organizations who defend the rule of law and judicial administration, is not only meritless, but is primarily intended to harass, intimidate, and render dysfunctional an organization that is interfering with the administration’s goal of fomenting hate and perpetuating its ethnic cleansing agenda of America.
Letitia James, James Comey, Mark Kelly, Jerome Powell, Minnesota Democrats, protesters at Cities Church in St. Paul, Minnesota, former military intelligence community lawmakers, John Bolton, Adam Schiff, John Brennan, Congressional Representative Lamonica McIver, Newark, New Jersey Mayor Ras Baraka, and fifteen law firms have been previous targets of such fabricated claims. The Department of Justice (DOJ), which has posted the worst success rate in the country's history, has been plagued by significant corruption and politicization, undermining its independence and integrity. It has shut down departments previously focused on enforcing the civil rights laws, national security, corruption, ethics, money laundering, and terrorism in order to focus on deportations of non-criminals, dismantling civil rights, and harassing the administration’s enemies. There have been forced resignations of prosecutors who resisted political pressure, indicating a shift towards loyalty over legal judgment. Disciplinary actions against judges and prosecutors who criticize the executive have become commonplace. Attacks on judges, even those appointed by the president, who follow the law rather than the president’s illegal policies, are routine. The DOJ's internal oversight and ethics capacity have been weakened, raising concerns about the rule of law and the Department’s abuse of justice.
In addition, the administration has declared war on people of color, having invaded urban areas of Los Angeles, Portland, Chicago, and Minneapolis-St. Paul. ICE has systematically, illegally, and violently detained and deported people whom they determined were immigrants and not entitled to stay in the United States. ICE’s efforts were so inept that they detained and deported citizens, legal residents, Native Americans, and others based on amateurish racial profiling, regardless of whether someone had tattoos and/or accents alone. ICE and DHS intentionally did this without regard to the individual rights guaranteed under the US Constitution, which explicitly states that all persons are entitled to counsel and due process. In addition, the president pardoned 1600 January 6 rioters, including members of the Proud Boys and other avowed white supremacists, who then brought a $100M lawsuit against the United States Government with support from the administration.
It is clear that the administration’s concept of justice has no relationship to Justice for All as articulated in the Pledge of Allegiance. The administration is pursuing an agenda of white supremacy at the expense of all others.
One of the bulwarks against this vile hatred and supremacist agenda has been the Southern Poverty Law Center. It is an organization based in Montgomery, Alabama, which has steadfastly focused on strengthening democracy and voting rights, which this administration persistently seeks to undermine. The people of the SPLC, also at significant risk to their lives and livelihoods, monitor white supremacist organizations and related activities, exposing hate, extremism, and countering disinformation and conspiracy theories with grounded research and intimate community knowledge. Their other projects include addressing unjust imprisonment and eliminating poverty and economic inequality.
The SPLC agenda is antithetical to the administration’s agenda, which announced its intention to spend $38.3 billion to turn warehouses into 21st-century versions of WWII Japanese detainment camps to hold nearly 100,000 people and is committed to deporting one million people a year, without regard to the merits of their right to live in America. Since, the Administration is unable to justify their expulsions under law, they have sought to destroy the system by firing immigration judges who follow the law, separating children from their families in an effort to make their lives so miserable that the families self deport; repealing naturalized citizenship status, despite the fact that such status was legally obtained and they have even tried, without merit, to unlawfully repeal the 14th Amendment to the US Constitution by executive order. Their approach is so outlandish that when asked directly, the Solicitor General could not confirm the right of Native Americans to live in the United States under the new executive order.
So why would the DOJ bring an action when it knows that it cannot obtain a conviction? Because initiating an indictment permits the Department to subpoena all the records of an organization that it despises. The DOJ can intimidate SPLC’s employees and witnesses. The investigation permits the DOJ (which has long ago abandoned confidentiality protocols) to force the organization to expend its precious 501(c)(3) funds to defend itself rather than fulfilling its mission. It also gives the DOJ the opportunity to expose the SPLC's methodologies and discredit informants within various organizations. In essence, the indictment permits the DOJ to comprehensively deconstruct the operations of the SPLC, rendering it incapable of fulfilling its mission of shining a light into the dark underworld of violent, racist, xenophobic hate groups, which the administration supports.
The Department of Justice is no longer about truth and justice. It is about destroying enemies of the current administration, and since that administration is populated with white supremacists committed to the development of a nation dominated by white supremacists who use their perverse version of Christianity as a weapon. Their purpose is evil and dangerous and reflects another unconstitutional abuse of the justice system. In the past, supremacists had just violent militias, and local government support. The current administration has officially handed them command of the levers of federal law enforcement. This is MAGA’s vision of Making America Great Again. It is in direct opposition to the Declaration of Independence, the Constitution, the UN Declaration of Human Rights, and any sense of decency and equality.
Walter Hiawatha White Jr. - a member of the Board of Directors of Lawyers Defending American Democracy; a founding director and later chair of the American Bar Association Center for Human Rights; past chair of the ABA Section on Civil Rights & Social Justice; a past member of the ABA board of Governors; Past Chair of the Central Asian American Enterprise Fund (appointed by President Clinton). Walter has been admitted to practice in Wisconsin, Washington, D.C., and the Qatar International Court, and has previously been registered as a foreign lawyer in both England and Wales and the Russian Federation.
Rep. Burgess Owens, R-Utah, addresses the chamber in front of a portrait of George Miller.
WASHINGTON — Witnesses and representatives sat in silence as Rep. Burgess Owens, R-Utah, spoke about how universities should strive for intellectual diversity and introduce controversial ideas. Rep. Alma S. Adams, D-N.C., agreed with his rhetoric, but went on to criticize her Republican colleagues for standing in the way of free expression.
“Unfortunately, what we often see, especially in hearings like this, is not a good faith effort to strike that balance, but a selective narrative,” Adams said. “My colleagues on the other side of the aisle frequently claim that there’s a free speech crisis on college campuses, arguing that universities lack viewpoint diversity and silence certain perspectives.”
Over the course of the hour-long hearing on Wednesday, Democrats and Republicans jabbed at each other, representing opposing ideas of what counts as suppressing students’ freedom of speech.
Democrats criticized the Trump administration for withholding funding from universities that failed to follow the president’s policies, such as his ban on diversity, equity, and inclusion programs. Democrats also bemoaned the administration’s crackdown on free speech for noncitizen students. Republicans, meanwhile, spoke about how universities have suppressed conservative voices by allegedly refusing to hire conservative professors. They also said conservative students have to self-censor, and universities deny funding to right-leaning student organizations.
The hearing marked the latest clash on higher education freedom of speech ideals in the federal government following the Trump administration’s crackdown on university grant funding in response to university diversity, equity, and inclusion practices and investigations into alleged antisemitism.
The Republican House majority meant that House Republicans were responsible for choosing most of the witnesses. Of the four witnesses, two came from right-leaning organizations, representing the Alliance Defending Freedom and the American Council of Trustees and Alumni. Only one witness represented a left-leaning organization: the American Civil Liberties Union.
Rep. Suzanne Bonamici, D-Ore., said the discussion on freedom of speech acted as a distraction from the crisis of higher education affordability, which she said was a larger issue.
“That’s what we should be having a hearing about, how to make colleges affordable,” Bonamici said. “But instead, my colleagues are continuing to villainize institutions of higher education.”
Bonamici read off a list of words the Trump administration removed from government websites, including words like “women”, “gender”, “sex”, and “immigrants”.
Rep. Mark Harris, R-N.C., said colleges had “weaponized recognition and fee processes against student groups they didn’t like.” He cited a 2020 lawsuit against California State University San Marcos, which alleged that the college awarded its LGBTQA Pride Center $296,498 for its activities. Meanwhile, it denied a recognized pro-life group’s $500 funding request for a speaker.
“This is just one clear example of how many colleges and universities show ideological preferences and funding with no transparency or how funding decisions were approved or denied,” Harris said.
Rep. Mark DeSaulnier, D-Calif., asked a witness for advice on how to encourage universities to create campuses that welcome all views.
“Having this free expression should be joyful… But it’s become so politically us against them without the acceptance that they might be right occasionally,” Rep. Mark DeSaulnier, D-CA, said, emphasizing the “occasionally” part of his sentence to his Democrat colleagues.
As the only witness from the left, Emerson Sykes, senior staff attorney at the ACLU, said, while students of all political opinions send in freedom of speech complaints to the ACLU, he focused on how the Trump administration has targeted blue states with legislation affecting freedom of speech.
Topics targeted by the Trump administration have included discussion of race, gender, climate change, and diversity, equity, and inclusion. Within the last year, the administration’s efforts resulted in over 300 higher education institutions dismantling their diversity, equity, and inclusion initiatives. The president’s executive actions also prevented transgender women’s participation in collegiate sports and targeted pro-Palestine protestors.
“What we're really seeing most in our country at the moment are efforts to prohibit the teaching of particular ideas, whether it's in K-12 or in higher education, and this sort of direct government censorship should not be lost in the discussions around self-censorship or discomfort around sharing conservative views in higher education institutions,” Sykes told Medill News Service after the hearing.
After the hearing, the committee published a recap that focused on three of the four witnesses, omitting any mention of the ACLU representative.
The recap’s conclusion said: “Too many universities have abandoned their mission to encourage students to think for themselves. Committee Republicans are working to hold colleges accountable and to protect students’ First Amendment rights, ensuring that higher education remains a place where ideas can be tested, challenged, and debated openly.”
Matthew Junkroski is a graduate student at Northwestern University.
Election workers process ballots at the Orange County Registrar of Voters one week after Election Day on November 12, 2024 in Santa Ana, California.
In October 2020, Utah’s Republican Senator Mike Lee delivered a startling but revealing civics lesson in the aftermath of that year’s vice-presidential debate between Kamala Harris and Mike Pence. He tweeted, The United States is “not a democracy.”
“The word ‘democracy,’’’ Lee wrote, “appears nowhere in the Constitution, perhaps because our form of government is not a democracy. It’s a constitutional republic….Democracy isn’t the objective….” The senator said that the object of the Constitution was to promote “liberty, peace, and prospefity (sic).”
As Lee put it, “We want the human condition to flourish. Rank democracy can thwart that.”
The New York Times reports that Lee’s sentiments are now being echoed in state legislatures in Utah, Missouri, Florida, and other red states, as Republicans seek to roll back citizens' right to make their views known through initiative and referendum.
As the Times explained, “The legislators argue that the nation’s founders never intended a pure democracy, and that in a representative democracy, elected legislators are entrusted to carry out their own judgments….’We live in a republic,’ Stuart Adams, the president of the Utah Senate, declared in a speech last year. ‘We will not let initiatives driven by out-of-state money turn Utah into California.’”
The right to petition the government for the redress of grievances is as old as the Republic itself. That right spurred a movement at the end of the nineteenth century to allow voters to use democratic processes, so-called direct legislation, to circumvent, or check, political institutions, which critics said were dominated by moneyed interests.
Today, twenty-four states, including places like Arkansas, California, Colorado, and Idaho, as well as Florida, Missouri, and Utah, allow citizens “to gather a certain number of signatures to bring a proposed statute or constitutional amendment to a public vote.” The District of Columbia does so as well.
While the nation’s attention is fixed on threats to democracy coming from Washington, DC, we should not neglect state-level efforts to curb popular participation in the political process.
The movement to allow direct legislation was one response to the gross inequality and rampant corruption of the Gilded Age. In 1896, Eltweed Pomeroy, a leading proponent of direct legislation, described the salutary effects of referenda and initiatives on cities and towns in Massachusetts.
“Many of them are so corrupt,” he said, “that the services they render their citizens are poor compared with the services given by the city officials in semi-barbarous countries, like Turkey and Russia.” He added, “If the Initiative was in force, a suitable minority of the voters could petition for any matter to…go to a poll of the people….As constructive is vastly superior to preventive work, the Initiative is vastly more important than the Referendum.”
Pomeroy denounced the “plutocracy,” which “knows full well that it must advocate high and noble principles and then not carry them into effect,” and called on “true patriots and lovers of their kind” to recognize that “democracy is not a failure in cities. Delegated responsibility is a failure.”
Progressives across the country agreed and pushed for direct legislation in their home states. As I have explained elsewhere, “They saw direct legislation as a way to supplement institutional politics, creating a parallel, democratic system less corrupted by the presence of professional politicians and their interests.”
South Dakota got the ball rolling in 1898, when it became the first state to create an initiative process. It was soon followed by Utah, Oregon, and Illinois.
By 1918, the number of states with initiative processes had risen to 22. Along the way, opponents said that direct legislation violated the United States Constitution, which guaranteed to the states a Republican form of government.
However, in 1912, the United States heard a challenge to a provision of the Oregon constitution which said that “the people reserve to themselves the power to propose laws and amendments to the constitution and to enact or reject the same at the polls, independent of the legislative assembly, and also reserve power at their own option to approve or reject at the polls any act of the legislative assembly." It ruled that how states implemented the guarantee of a Republican form of government was up to them.
Since then, putting ballot measures to a vote of the people has become a regular occurrence in the United States. For example, in 2024, Ballotpedia, the best source for information about direct legislation, reports that “159 statewide ballot measures were certified for the ballot in 41 states. Voters approved 102 (64%) and rejected 57 (36%) ballot measures.”
As the New York Times explains, in recent years, “Voters frustrated by one-party control in Republican states…have increasingly turned to citizen-sponsored initiatives to enact policies that their legislatures won’t. They expanded Medicaid, adopted paid sick leave, raised the minimum wage and safeguarded access to abortion. Now, the legislators are striking back.”
It details various devices they are using in this effort. Some states are raising the threshold for passage of a ballot measure to 60%. Others are “imposing a raft of new requirements, fees and criminal penalties around collecting signatures on petitions for ballot measures.”
This year, Missouri voters will be asked to approve a measure requiring that “citizen-sponsored amendments to the state constitution would have to win in each of the state’s eight U.S. House districts.” If it passes, it will be virtually impossible for such amendments to pass again.
That’s the point: Make it as hard as possible for citizens to make their views known directly.
But this is more than a strategy to defeat progressives. A look at history reveals that ballot measures can advance both conservative and progressive causes.
For example, in criminal justice matters, voters often embrace tough-on-crime measures. In 2024, California voters approved an increase in “penalties for certain drug crimes and theft convictions and allow a new class of crime to be called treatment-mandated felony,” by a margin of 68% to 32%. In the same election, they rejected a measure that would no longer have allowed “involuntary servitude” to be used as punishment for a crime, 53% to 47%.
Over the course of a more than one-hundred-year period, those hoping to get voters to abolish the death penalty in their states have repeatedly failed to do so.
And let’s not forget the way opponents of gay marriage used ballot measures to prevent it from being legalized in the states. According to Ballotpedia, “Between 1994 and 2024, there were 45 statewide measures on the ballot related to same-sex marriage. Out of these measures, 36 measures were placed on the ballot to prohibit same-sex marriage or define marriage as between a man and a woman. Of these measures, 33 were approved, and three were defeated.”
With this record, it seems clear that efforts to curb the use of ballot measures are not just about liberal or conservative politics. They are about something much more fundamental: the future of democracy itself.
Chris Melody Fields Figueredo, executive director of the Ballot Initiative Strategy Center, got it right when she told the Times that the measures being pursued in red states are designed to “create a system that is so cumbersome and so expensive and hard that you’ve taken the teeth out of the will of the people and their ability to make change.”
Austin Sarat is the William Nelson Cromwell professor of jurisprudence and political science at Amherst College.
Kevin Warsh testified in a Senate Banking Committee confirmation hearing for Fed chair last week.
WASHINGTON – The Senate Banking Committee on Wednesday voted 13 to 11 to advance Kevin Warsh’s nomination as Federal Reserve chairman despite Democrats’ concerns that he would not be independent from President Donald Trump.
The banking committee’s vote fell along party lines, with all 13 Republicans voting in favor of the nomination and all 11 Democrats voting against it. Senator Elizabeth Warren, D-Mass., said in a press release that it was the first time a vote on a Fed chair nominee was entirely partisan.
Democrats warned that installing Warsh as Fed chair would mean Trump exerting control over the central bank, with consequences for the economy.
The committee’s decision marked a win for Trump, who announced in January that he selected Warsh to lead the Fed. The nomination came amid a months-long public feud between the president and the current Fed Chair Jerome Powell over interest rates that thrust the central bank into political controversy. Trump also attempted to fire Lisa Cook, a Fed governor.
“Donald Trump by pursuing this criminal prosecution against the Fed chair and also against a Fed governor, Lisa Cook, basically unsheathed a sword and holds it over everyone at the Fed,” Warren told reporters before the vote. “He has made clear that he doesn't care what term you have, what's been passed by Congress, what the law is. He is willing to go after people criminally, even when they're in office, if they make decisions that he doesn't like.”
Warsh’s nomination was blocked for weeks by Senator Thom Tillis, R-NC, who said he would not vote to advance Warsh until the Justice Department dropped its criminal investigation into Powell regarding a costly renovation project of the central bank’s headquarters. The department closed its probe last week, and Tillis on Wednesday voted to move Warsh’s nomination forward.
But Warren, along with other Senate Democrats, expressed concern that the probe could be reopened and voted against Trump’s pick. Tillis spoke to reporters after the vote and criticized Warren’s actions as “political theater.”
“I'm happy with the way the DOJ comported themselves over the week, and got me to a point where I'm comfortable with (voting for Warsh),” he said. “She didn't get the assurances that I did, and I'm confident that we'll move forward in good faith, and they will deliver on their commitment.”
If the full Senate votes to confirm Warsh, he would replace Powell when his term expires on May 15 and become the 17th chairman of the Federal Reserve.
But Senate Democrats have criticized Warsh’s nomination, citing concerns in a confirmation hearing last week that he would serve as Trump’s “sock puppet.”
At the hearing, Warsh declined to say that Joe Biden won the 2020 presidential election and dodged questions about whether he thought the Trump administration’s probe into Powell threatened the independence of monetary policy.
Democrats have interpreted his refusal to answer questions as a sign of his loyalty to Trump and worried that Warsh could compromise the central bank’s independence.
But Warsh explained his silence in another way. “We need to keep politics out of monetary policy and keep monetary policy out of politics,” he said.
The Federal Reserve was created by Congress in 1913 to serve as the central bank of the United States with the purpose of promoting maximum employment and stable prices. It does not receive funding from Congress and is considered an independent agency within the government.
“It's become the consensus view that independence of the central bank is important, that it will generally lead to better outcomes,” said Seth Carpenter, global chief economist at Morgan Stanley and former deputy director at the Federal Reserve Board. “If you have a central bank that is subject to short-term political wins, then you could get into a situation where policy decisions are made to try to curry favor with voters to get a certain economic outcome for a political outcome, and that could be bad.”
He pointed to former Fed Chair Arthur Burns as a cautionary tale. Burns served as head of the central bank in the 1970s and is remembered for allowing inflation to run rampant after bending to political pressure from President Richard Nixon.
Warsh previously positioned himself as a reformer intent on changing the central bank, including shrinking its balance sheet and holding fewer press conferences to communicate policy decisions.
But Robert Hetzel, a Federal Reserve historian and former economist at the Federal Reserve Bank of Richmond, said he believes Warsh would be unlikely to make major changes at the central bank.
He anticipated that Warsh would have to strike a balance between being a reformer and working closely to convince members of the Federal Open Market Committee to go along with his plans.
“What remains to be seen is just how pragmatic he is, just how willing he is to disappoint Trump, and realistically go after the kinds of reforms he's suggested publicly,” Hetzel said.
But he stressed that he expected Warsh to do a good job and resist the flak he receives from politicians.
However, Democrats predicted Trump would pressure Warsh to make the economy seem stronger before the mid-term elections in November.
“The Fed is supposed to be there as a protector for our economy overall and insulate monetary policy from politics, but that's not what Donald Trump wants,” Warren told reporters. “What Donald Trump wants is the Fed to be under his complete control, and he wants it right now, because he's in real trouble on this economy, prices are up, jobs are stagnant, and the economy is looking shaky, and voters know that.”
Erika Tulfo is a reporter covering business and financial policy for Medill News Service.
