The First Amendment Lives for Another News Cycle—Maybe

If it were up to me, three Republican judges on the US Court of Appeals for the Eighth Circuit would be impeached for their ruling in the Missouri redistricting case. In that ruling, the court reinstated a congressional map that had been racially gerrymandered to deny political power to Black voters. The map had already been rejected by the Missouri state Supreme Court and the US Supreme Court—but the judges decided to pull a Trump and ignore both.

Now, regular readers will know that I’m generally not a guy who calls for the impeachment of judges, and I’ve never been a guy to call for impeachment simply because of “bad rulings.” Federal judges are supposed to serve for life. But the bad behavior of this Eighth Circuit panel is so lawless and nakedly partisan that it violates any reasonable conduct we should expect from the federal judiciary.

For those who haven’t followed the saga: The state of Missouri engaged in Trump-backed, mid-cycle redistricting to try to secure an additional seat for Republicans in Congress. The state’s plan was to divide Kansas City, Missouri, denying Black voters living there a fair opportunity to elect a candidate of their choice. Citizens opposed to the new map organized a voter referendum on the issue for this November, as allowed under Missouri law. Republicans pulled a series of shenanigans to get the new maps installed as the default until the voter referendum (which is the opposite of what the law requires), and the whole thing got kicked into the courts.

The Missouri state Supreme Court ruled, reasonably, that the old maps needed to be in place until the referendum. So Republicans decided to take the case to a federal court and then found a district court judge appointed by Trump who insisted that the new maps be used. His decision was appealed to the Supreme Court, which issued a shadow docket ruling putting it on hold, effectively pausing the case until after the election. This meant that Missouri would be forced to use its old maps for the midterms.

But then the three judges on the Eighth Circuit decided that the Supreme Court didn’t matter. Judges James Loken (a George H.W. Bush appointee), David Stras (a Trump appointee), and Justin Smith (a Trump appointee who also used to be one of Trump’s personal lawyers) issued a wild opinion on Monday, reinstating the new, racist Missouri maps. Judge Loken somehow interpreted the Supreme Court’s hold as an invitation for the Eighth Circuit to “get to work,” and affirmed the district court ruling requiring the new maps.

The fact that the Supreme Court put that exact district court ruling on hold meant nothing to these three judges. The fact that their new ruling will cause additional confusion mere weeks before the election meant nothing. The fact that their new ruling will almost surely get spiked again by the Supreme Court (it may well have been spiked again by the time you read this), meant nothing. All that mattered to these three judges was making one more attempt at using racist maps to help Republicans win one more seat in the upcoming midterms.

This is beyond “bad faith,” and I say that as a person who covers the bad faith of Republican judges for a living. These are federal judges who are showing a willful disregard for the rest of the federal judiciary just to try to influence a political outcome. These judges should be drummed off the bench in the only way the Constitution allows: the impeachment process.

Impeachment, as you know, starts in the House. I hope the Democratic Congressperson from Kansas City is willing to lead the charge against these judges.

The Bad and the Ugly

• Donald Trump said his planned DC arch will include drone housing and a sniper turret and… a bunch of other James Bond villain stuff that will end up being featured in the next Ridley Scott movie.
• While Trump continues trying to build Fortress America, my forever mayor, Zohran Mamdani, secured a record settlement from DoorDash for underpaying its workers. People who have been illegally denied wages will receive 200 percent of the pay they are owed.
• A man shot by ICE in Texas claims that doctors were not allowed to remove the bullet lodged near his spine because ICE was in a hurry to move him to a concentration camp. Any Democratic primary candidate who will not promise to abolish ICE will not be getting my vote.
• In Illinois, video shows ICE brutalizing a man, realizing that he wasn’t the man they were after, and leaving him bleeding in the street. I’ll say again: Any Democratic primary candidate who will not promise to abolish ICE will not be getting my vote.
• A grand jury decided to press no charges after the death of Nolan Wells.

Inspired Takes

• I still can’t believe Secretary of War Crimes Pete Hegseth has such an important job. For The Nation, Jeet Heer wrote that even Republicans are starting to agree.
• In The Nation, David Faris explained the increasingly challenging path for Republicans to hang on to the Senate. Reading this counts as pornography for me. Like, I’m pretty sure the scenarios depicted are exaggerated fantasies that I will never enjoy, but, hey, you never know.

Worst Argument of the Week

Donald Trump banned CNN, MS NOW, and Politico from the White House last Friday. I happen to think that the White House press corp is absolutely useless. In most cases, I think it is actively harmful. The coverage of Trump is one of the reasons Trump happened. All the time the media spends repeating Trump’s lies instead of covering the truth is time spent in disservice to America.

Still: While I don’t respect the job White House reporters have been doing, I do respect the First Amendment. Trump’s move is a violation of the freedom of the press. He is punishing certain news organizations, but not others, because of the content of their coverage.

Secretary of State Marco Rubio defended Trump’s move, saying that working inside the White House is a “privilege.” He said that Trump isn’t violating the First Amendment because the administration is not arresting members of the press. It is true that the Trump administration is not kidnapping reporters and chopping them into little bits, but the First Amendment sets the bar quite a bit higher than “not Saudi Arabia.” If the government grants a news organization a privilege, like having a desk in the White House or flying on an unconstitutional foreign emolument shaped like a plane, the government cannot take that privilege away because of the content of the coverage. I’ve literally had to make this argument to liberals for years while explaining why Barack Obama or Joe Biden could not just kick Fox News out of the White House press corps. The First Amendment is content neutral: It has to be, or it doesn’t work.

Rubio’s argument is so obviously bad that it’s not the one the administration made in court. Instead, Trump’s lawyers  came up with something even worse: national security. In a court filing, the DOJ accused the banned organizations of “publishing sensitive or classified information” and not meeting “standards of professionalism and decorum.”

On Wednesday, US District Judge Timothy Kelly punted this ridiculous argument and issued a 14-day temporary restraining order preventing the administration from implementing its ban. Kelly wrote that the ban is likely an unconstitutional violation of the First Amendment and that the banned organizations did not receive due process before they were kicked out of the White House.

Judge Kelly, it must be noted, is a Trump judge, appointed way back in 2017, during Trump’s first term.

The upshot is that CNN, MS NOW, and Politico can go back to spreading the administration’s propaganda with their precious access restored. And the First Amendment lives for another news cycle.

Assuming, that is, that Trump follows the court order—which he’s not inclined to do.

In News Unrelated to the Current Chaos

Like many legal nerds, I have been enthralled by a surrogacy battle that recently reached the Supreme Court. A California couple struggling to conceive, Nausheen Gilkar and Omar Ahmed, entered into a surrogacy contract with an Alaskan nurse, McKenna West. The contract stipulated that all matters regarding abortion would be left to the contracting parents, not the woman carrying the child.

The fetus was diagnosed with a rare heart condition that would require, at a minimum, open heart surgery soon after birth and additional surgeries during childhood. The parents exercised their contractual right to ask West to terminate the pregnancy. But she refused. She then moved to Texas so the abortion part of the contract could not be enforced. She gave birth to the child and sued to be declared the child’s legal parent. She argued that merely asking for the abortion made the contracting parents unfit.

The lawsuit forced the courts to get involved. Surrogacy contracts hold that the contracting parents are the legal parents of the child, and West was trying to upend that precedent. A lower court ruled in favor of the contracting parents and ordered the baby turned over to Gilkar and Ahmed. McKenna then sued to block that lower court’s ruling.

On Tuesday, Justice Elena Kagan refused to make the Supreme Court intervene, leaving in place the lower court order and granting custody to Gilkar and Ahmed.

West was represented by Alliance Defending Freedom, a Christian conservative legal group that has been involved in many cases seeking to take away abortion rights and LGBTQ+ rights. With ADF’s help, West tried to turn a painful and compelling custody battle into yet another attack on abortion rights. The only thing these people know how to do is warp legal disputes into their endless culture war. I hate the ADF as a standing principle, but its eagerness to turn this baby into yet another pawn in its crusades feels like a new low.

Not everything is an attack on Jesusland.

***

If you enjoyed this installment of Elie v. U.S., click here to receive the newsletter in your inbox each Friday.