The US Supreme Court convened for a new term on October 2 and will begin hearing a growing list of cases that could transform the scope of the federal government, voting rights, and the rights to free speech and public safety.
Justices will consider the constitutionality of an entire federal agency, the Consumer Financial Protection Bureau; Florida and Texas laws that impose government-mandated editorial policies on social media sites; and whether people subject to domestic violence restraining orders have a right to own a gun.
The Supreme Court is also likely to take up lower-court decisions about whether to ban a drug used in more than half of all abortions in the United States and whether political activists have a First Amendment right to organize a protest. And it has already announced that it will hear a major gerrymandering suit, with more cases potentially coming that could decide who prevails in future elections.
We’ll track the biggest cases and explain what’s at stake here. Follow along.
Once again, the Supreme Court must deal with judicial arsonists on the Fifth Circuit.
Two of the most partisan judges in the country handed down an order last week that is hard to explain as anything other than an attempt to preserve Republican control of the US House of Representatives. The voting rights plaintiffs in this case, known as In re: Jeff Landry, already filed an emergency application in the Supreme Court asking the justices to lift this order.
It’s the latest effort by several of the most radical judges on the United States Court of Appeals for the Fifth Circuit, an increasingly rogue court dominated by Republican appointees, to manipulate the law in ways that benefit the Republican Party. The Supreme Court already plans to hear several cases this term where it is likely to reverse the Fifth Circuit, including a case where the Fifth Circuit declared an entire federal agency unconstitutional.
The Fifth Circuit’s order, handed down by Judges Edith Jones and James Ho, concerns a long-running lawsuit alleging that Louisiana’s congressional maps are an illegal racial gerrymander. In June 2022, a federal trial court agreed with the plaintiffs in this case, then known as Robinson v. Ardoin, and concluded that “the appropriate remedy in this context is a remedial congressional redistricting plan that includes an additional majority-Black congressional district” — one which would likely elect a Democrat to Congress.
Before that trial court’s order could take effect, however, the Supreme Court stepped in and temporarily blocked it — essentially putting the case on hold until the justices resolved a different racial gerrymandering suit, known as Allen v. Milligan, which challenged racially gerrymandered maps in Alabama. The Supreme Court ruled in June 2023 that Alabama’s maps are, indeed, illegal, and ordered that state to draw new maps that include a second Black congressional district.
Shortly thereafter, the Supreme Court lifted its hold on the Robinson litigation. Then the trial judge in that case scheduled a new hearing for Tuesday, October 3, which would have likely ended in the trial judge ordering Louisiana to either redraw its maps or accept court-drawn maps.
Now here’s the part where things take a weird turn: Last week, Jones and Ho abruptly ordered the trial judge to cancel the October 3 hearing. Their decision relies on a rarely used process known as a “writ of mandamus” which, under well-established legal rules, cannot even arguably be applied to this particular case.
This decision most likely won’t prevent the courts from ordering Louisiana to draw new maps at some point in the future, but it could delay the case long enough to leave the current, GOP-friendly maps in place during the 2024 election cycle.
Worse, Jones and Ho stepped in despite the fact that a different panel of three Fifth Circuit judges was already scheduled to hear the Robinson case on Friday, October 6 (this Friday hearing concerns whether the trial court’s June 2022 order was correctly decided). Notably, the Friday panel is significantly more moderate than Jones or Ho — it includes Judge Carolyn King, a Carter appointee, and Judge Leslie Southwick, a center-right Bush appointee who sometimes disagrees with the Fifth Circuit’s MAGA faction. (The third judge on this Friday panel, Jennifer Elrod, is a hardliner similar to Jones or Ho.)
So Jones and Ho didn’t simply issue a legally inexplicable order sabotaging a court proceeding that was likely to cost the Republican Party a seat in the US House, they also did so despite the fact that a different, more moderate panel of their own Fifth Circuit colleagues already had jurisdiction over the same case.
Writs of mandamus, briefly explained
A “writ of mandamus” is a highly unusual court order that appellate courts may hand down to block truly egregious errors by a lower court. As the Supreme Court held in Will v. United States (1967), “only exceptional circumstances amounting to a judicial ‘usurpation of power’ will justify the invocation of this extraordinary remedy.”
Indeed, the Supreme Court has warned that a writ of mandamus may issue only if the party seeking it has “no other adequate means to attain the relief he desires,” and only if that party has a “clear and indisputable” right to such extraordinary relief.
Nevertheless, Jones and Ho invoked mandamus to block one of the most routine orders that a trial judge may hand down: A decision scheduling a hearing in a long-running lawsuit that has been on that judge’s docket for more than a year.
To justify this relief, the two MAGA judges essentially accused the trial judge of rushing this case — either by not giving the state legislature enough time to attempt to redraw its maps on its own, or by not giving the state’s lawyers enough time to prepare for the October 3 hearing.
But neither of these allegations are plausible. The trial judge initially ruled in June 2022 that Louisiana’s maps are legally suspect and should be redrawn — so the state legislature has had nearly 16 months to redraw the maps if it wanted to do so. Similarly, while the Supreme Court’s decision to temporarily pause this case gave the state’s lawyers a brief reprieve from litigating it, the justices ended that pause in June 2023. So the state has known for more than three months that it needed to prepare for an eventual hearing in this case.
Moreover, even if the trial judge had actually rushed this case, that still would not justify mandamus relief. Again, a writ of mandamus may only issue if the party seeking it has “no other adequate means to attain the relief” they seek. To the extent that Louisiana believes that the trial judge erred in her initial decision concluding that the maps should be redrawn, the state can present those arguments to the more moderate panel that will hear the Robinson case on Friday. Additionally, if the state disagrees with whatever the trial judge orders it to do after the October 3 hearing, it can also appeal that decision to the Fifth Circuit.
There is, to put it simply, no justification whatsoever for Jones and Ho getting involved in this lawsuit.
So what’s really at stake in this case?
In the long term, Jones and Ho’s attempt to insert themselves into a lawsuit that they have no business hearing is unlikely to matter. If the Supreme Court invalidates their mandamus order, the October 3 hearing will proceed (possibly at a later date if the Court does not move very quickly), and the litigation will advance as it normally would through appeals courts.
Alternatively, if the Supreme Court backs Jones and Ho’s attempt to sabotage the case, Louisiana’s appeal before the King/Southwick panel will still proceed, and the trial court will most likely be able to reschedule the October 3 hearing at some future date — though that may be weeks or months from now.
It’s unclear how the Court will react to this case. Although Jones and Ho’s decision is clearly erroneous, the Supreme Court is dominated by Republican appointees. And some of the justices have expressed concerns that the Court is too willing to grant relief on its “shadow docket,” an expedited process that allows the Court to weigh into cases that have not received full briefing or oral argument. Jones and Ho’s order is currently before the justices on the shadow docket.
In any event, while the long-term implications of this case are minimal, the potential consequences for the 2024 election are enormous. The Supreme Court has held that lower court judges should not hand down decisions enjoining a state’s election laws as an election draws close — and some justices have even suggested that lower courts may not issue such injunctions as much as nine months prior to an election.
So the Robinson plaintiffs need to secure a court order imposing new maps on Louisiana soon, or there is a high risk that they will have to wait until after the 2024 election before those maps go into effect. If they do not get such a court order soon, a US House seat that should have gone to a Black Democrat will likely go to a white Republican, at least for two years.
Jones and Ho, moreover, are two of the most unapologetically partisan judges in the entire federal judiciary. Jones is a former general counsel to the Texas Republican Party, and is known for a string of cruel decisions, such as one holding that a man could be executed despite the fact that his lawyer slept through much of his trial. Ho is a kind of judicial edgelord who makes Jones look measured and reasonable by comparison.
The most likely explanation for their mandamus decision, in other words, is that Jones and Ho want the Republican Party to control the US House of Representatives. And they are willing to ignore well-established constraints on their own power in order to maximize the likelihood of a Republican Congress.
Biden called Saudi Arabia a “pariah.” What happened?
Five years after a Saudi hit squad murdered, dismembered, and disappeared the journalist Jamal Khashoggi, Saudi Arabia has won.
It was President Donald Trump and son-in-law Jared Kushner who embraced Saudi Arabia after the killing and then set the conditions for the ongoing Saudi victory over human rights. But Joe Biden also deserves blame.
On the campaign trail, candidate Biden had pledged to hold Saudi Crown Prince Mohammed bin Salman to account, saying he would make Saudi Arabia a “pariah.” Initially, Biden held a hard line, but within a year that evaporated. He traveled to the kingdom in summer 2022 in an about-face visit that resulted in an unforgettable fist bump.
Silicon Valley, Wall Street, and even nonprofits have been all too willing to rehabilitate MBS’s image, in large part thanks to Saudi Arabia’s economic largesse. Media organizations and think tanks, too, have taken on Saudi funding and hosted the kingdom’s officials at public events. It’s MBS’s world: Can I interest you in a round of Saudi-run golf? Saudi-funded tech products? A quick trip to an art fair and tango workshop in the once ultra-conservative kingdom?
But what’s new today, on the fifth anniversary of Khashoggi entering the Saudi consulate in Istanbul and never being seen again, is that Saudi Arabia is no longer on its back foot in Washington. MBS has achieved a hearty welcome back into the good graces of the once outspokenly critical Biden and his administration.
How else can we read the unfolding dynamic in which the crown prince has Washington reportedly considering an unprecedented array of inducements — a potential security pact and a nuclear program — in exchange for the kingdom signing a diplomatic agreement with Israel?
Even now, MBS fashions himself a reformist, a line repeated by retired officials from Democratic and Republican administrations, and by former UK Prime Minister Tony Blair whose institute receives funds to advise Saudi Arabia. Yet political rights in his country remain as elusive as ever.
As Khashoggi wrote in the Washington Post in November 2017 amid a violent crackdown of royals and businesspeople, “As of now, I would say Mohammed bin Salman is acting like Putin.” And he continues to, with far fewer consequences for his actions than the Russian autocrat.
MBS has won over Washington
Washington and world capitals are abuzz about the idea of the kingdom establishing diplomatic relations with the State of Israel.
The Saudi side appears to need concessions from the US to make that happen, and those inducements appear to be more of a priority for Riyadh than securing any protections for Palestinians.
US officials are briefing journalists about variations of a security guarantee and a civilian nuclear program that would allow Saudi Arabia to enrich uranium. They have floated a defense accord that could be similar to arrangements the US has with South Korea or Japan, or by designating Saudi Arabia a major non-NATO ally.
The Biden administration regularly asserts that Saudi Arabia and Israel establishing diplomatic relations is “a declared national security interest of the United States.” But MBS’s track record of destructive military adventurism in Yemen, where MBS led a 2015 military operation that expanded into a vicious yearslong war with a massive humanitarian toll, would make security pacts significantly risky for the US. And political observers question whether the Senate would sign off on such a treaty with Saudi Arabia, which already benefits from the robust US military presence in the Persian Gulf. Meanwhile, nuclear experts are flummoxed, pointing to the significant risks of giving MBS nuclear technology.
I reached out to the White House because I wanted to ask Brett McGurk, Biden’s Middle East coordinator, how such an agreement would square with the president’s initial pledge to put human rights at the center of the administration’s foreign policy. My requests were not returned.
“The question of values and human rights is at the table when we are having discussions about our national security interest in this region,” McGurk said at the Carnegie Endowment for International Peace last year. “That alone is unique, and that is how American diplomats wear our values on our sleeve. Does that mean that human rights and values overtake every other issue? No, but it’s a part of the conversation.”
A more complete answer might be that great power competition — that is, the Biden administration’s focus on countering China as an organizing principle of its worldview — means that human rights are not a top priority. The Biden administration does not see itself having the luxury of holding a country like Saudi Arabia to account when it wants the oil-rich country, and broader region, aligned with the US economically and politically.
Trump may bear responsibility for shrugging off Khashoggi’s killing in 2018, but Biden’s administration hasn’t done much to hold MBS to account.
When Biden’s closest advisers visit Saudi Arabia, human rights don’t always figure into the White House’s news releases. And those statements matter; they are markers for activists, and set the tone for how we talk about the country.
And the impunity for the killing of Khashoggi, a US resident and Washington Post columnist, can now be felt worldwide: as India reportedly assassinated activist Hardeep Singh Nijjar on Canadian soil, as Egypt targets dissidents abroad, and as Israel has not faced sanctions for the death of Palestinian-American journalist Shireen Abu Akleh.
But the situation in Saudi Arabia and for Saudis abroad facing translational oppression goes far beyond Khashoggi. “The lack of accountability has just generated worse scenarios for Saudis,” Hala Aldosari, a human rights activist living in exile in the United States, told me. “We are seeing life sentences and death sentences for people expressing opinions.”
There have been 100 executions this year so far. “This is something that has been very rare but now is happening on a massive scale inside Saudi Arabia which is very disheartening. It tells you how one act goes unpunished and unaccounted for could escalate very severely and could impact thousands of lives,” Aldosari explained.
It makes it all the more stark that the Biden administration still doesn’t have a political appointee in place for the important role of assistant secretary of state for democracy, rights, and labor, but has appointed former Ambassador to Israel Daniel B. Shapiro as point-person on Israel-Arab normalization.
How Saudi Arabia shapes the stories we tell
MBS sent the Saudi foreign minister, Prince Faisal bin Farhan Al-Saud, to the United Nations annual summit two weeks ago. In his speech to the general assembly, he emphasized the importance of human rights, and in private conversations with prominent policy thinkers across New York, he was very much in listening mode.
Instead of the UN lectern, the crown prince chose Fox News to convey his message; the medium suggested he wanted to reach Americans, not the world — and, in particular, Republicans. The setting was Sindalah, a Red Sea island that Saudi Arabia hopes will become a tourist destination.
MBS immediately deflected when asked about the Khashoggi killing. He said his country had pursued an investigation like the US did after the failures of its Iraq invasion, and that the country’s security services had been reformed.
In the friendly conversation with anchor Brett Baier, the crown prince presented himself as a reformer fighting against the traditionalist Saudi system. “It was a mistake, it was painful, and we are trying our best to make sure we reform our system to work by the book,” the crown prince said of Khashoggi’s death. But the Fox News follow-up questions didn’t reckon with the fact that it was US intelligence agencies that had determined with a high degree of certainty that MBS himself had ordered the assassination.
And while not everyone is giving MBS that kind of platform, other American institutions are engaging with Saudi Arabia. For a short while after Khashoggi’s murder, US institutions avoided the public shame associated with the acceptance of Saudi money, but those days are gone. The MBS information campaign for rehabilitation post-Khashoggi extends to influential think tanks that depend on Gulf funding, though researchers and experts testifying to Congress sometimes don’t disclose it. Former US military leaders earn lucrative contracts from the kingdom. Even media organizations benefit, which may explain why Vice buried a critical documentary on Saudi Arabia. (The money is so ubiquitous that even Vox is touched by it. Penske Media Corporation received in 2018 a $200 million investment from the Saudi Research and Media Group, which is closely linked to MBS. Penske became a minority shareholder in Vox Media, this site’s parent company, earlier this year.)
The Fox interview is a prime example of how adept Saudi Arabia has been at shaping conversations in Washington five years after Khashoggi’s death.
MBS knows his audience and what he can get away with.