There is a temptation to overhype or read too much into the results of off-year elections. In this case, I suggest we succumb.
Yesterday, Wisconsin voters exposed, humiliated, and decisively rejected the world’s richest man. And they sent a stark message to Republicans in Washington.
On Sunday, when Elon Musk parachuted in for a rally that featured $1 million checks for voters, he described the race for state supreme court here in apocalyptic terms. Tuesday’s vote, he declared, would determine which party controlled the House of Representatives, presumably because of the court’s role in redistricting. “That is why it is so significant,” he said. “And whichever party controls the House, you know, it, to a significant degree, controls the country, which then steers the course of Western civilization. So, it’s like I feel like this is one of those things that may not seem that it’s going to affect the entire destiny of humanity, but I think it will. Yeah. So, it’s a super big deal.”
Yesterday’s result—a decisive victory for liberal Susan Crawford over conservative Brad Schimel—was, indeed, a super big deal. Not just for Democrats, who desperately needed this kind of win, but for Musk himself. By inserting himself into the Wisconsin race, Musk, the billionaire who has become a top adviser to President Donald Trump, had hoped to cement his status as MAGA enforcer and kingmaker. Instead, he provided Republicans with graphic evidence that he has become a political boat anchor. Late last night, The Wall Street Journal’s editorial board fretted: “The MAGA majority may have a shorter run than advertised.”
It was a message that jittery Republicans in Congress are not likely to miss. As for Trump himself, he notoriously hates both losing and losers.
The stakes for Wisconsin in yesterday’s election were huge. The outcome of the judicial race would affect everything from abortion rights to gerrymandering to public employee bargaining rights. But along the way, Musk turned the race into a referendum on himself and the president.
Conservative groups flooded the state with literature featuring Schimel cheek by jowl with Trump, whose picture was … everywhere. Musk hoped to turn out low-propensity Trump voters by convincing them that Trump was, in effect, on the ballot. Musk and his allies hammered the message over and over in mailers: “Schimel will support President Trump’s agenda!” “President Donald Trump needs your vote. Stop the radical liberal takeover.” “Together, we won the White House. Now it’s time to win the courthouse!”
In the end, it all backfired, and the election wasn’t close. In a state where many elections are decided by razor-thin margins and where Trump won only narrowly in November, Musk’s conservative candidate was shellacked. Democrats turned out in massive numbers, and Schimel failed to hit the targets he needed. The suburban vote continued a leftward shift.
As she claimed victory, Crawford gave a shout-out to Musk. “Growing up in Chippewa Falls, I never could have imagined that I would be taking on the richest man in the world for justice in Wisconsin,” she said. “And we won.”
The timing of Crawford’s win is important. Wisconsin’s vote came amid stories about Musk’s assault on Social Security and circulating reports about massive cuts to public-health agencies, just a week after The Atlantic’sreporting on the Signal security breach, and just before Trump’s expected announcement about huge new tariffs.
At the rally on Sunday, Musk—who has become one of the loudest voices on the right calling for the impeachment of federal judges who rule against Trump—bounced onto a stage in Green Bay wearing a cheesehead and brandishing million-dollar checks. How would this play in the swingiest of swing states, we all wondered? How popular was Musk? How did voters feel about Trump’s shock-and-awe agenda?
Wisconsin voters have given their answer. They delivered a grim verdict on Musk’s chainsawing of government and his crude attempt to buy their state’s high court.
The Supreme Court on Tuesday appeared inclined to allow a lawsuit by U.S. victims of terrorist attacks in Israel against the Palestinian Authority and the Palestine Liberation Organization to go forward. A majority of the justices appeared skeptical of contentions by the PA and the PLO that a law allowing those victims to sue them in U.S. courts violates the Constitution’s guarantee of due process, even if there was not necessarily any agreement on the bench on exactly how courts should reach that conclusion.
During nearly two hours of debate, the justices often seemed to be grappling with broader questions as well, such as the extent to which courts should defer to national-security and foreign-policy judgments made by the other branches of government.
At issue the case is the concept of personal jurisdiction – whether courts have the power to hear a case against certain defendants. In 2019, Congress passed the Promoting Security and Justice for Victims of Terrorism Act to give federal courts personal jurisdiction over cases by terrorism victims abroad. The law provides that the PLO and the PA “shall be deemed to have consented to personal jurisdiction” in any civil case brought under the Anti-Terrorism Act, no matter when the act of international terrorism occurred, if they make payments to the families of terrorists who injured or killed a U.S. citizen or engaged in any activities within the United States. The law carves out a few narrow exceptions to the latter criterion – for example, for conduct relating to official United Nations business or meeting with government officials.
The U.S. Court of Appeals for the 2nd Circuit ruled that the dispute now before the court, brought by U.S. citizens injured in terrorist attacks in Israel, as well as the families of U.S. citizens killed in such attacks, could not move forward. It reasoned that the Palestine Liberation Organization, which is the official representative of the Palestinian people for foreign affairs, and the Palestinian Authority, the governing body for parts of the West Bank and Gaza Strip, had not agreed to have U.S. courts exercise jurisdiction over them. Nor, the court of appeals added, is the conduct that the PSJVTA targets the kind of conduct from which it would be fair to infer consent.
After the full court of appeals, over a dissent by four judges, declined to reconsider the decision, the victims and families came to the Supreme Court, which agreed last fall to weigh in.
Representing the victims and families, Kent Yalowitz urged the court to reverse the 2nd Circuit’s decision and revive his clients’ lawsuit. The PSJVTA provided the PLO and the PA with “fair warning,” he said. “Their conduct was knowing and voluntary.” And the law “reasonably advances legitimate government interests in the context of our federal system.”
Much of the oral argument focused on whether the due process clauses in the 14th Amendment (which applies only to the states) and the Fifth Amendment (which applies to the federal government) impose the same limits on jurisdiction – and, if they impose different limits, what those limits are for cases under the Fifth Amendment.
Yalowitz insisted that the two amendments have different limits. He reasoned that the 14th Amendment has to account for the interests of the states involved, so that one state does not infringe on the sovereignty of another by exercising jurisdiction over a defendant with minimal contacts with the state. But the “federal government doesn’t suffer from that limitation,” Yalowitz maintained, because its “powers are more expansive.”
Justice Sonia Sotomayor asked whether Yalowitz was “basically saying there is no due process protection under the Fifth Amendment even for U.S. citizens?” Could Congress say, she enquired, that a U.S. citizen could face trial in California for an act in New York?
Yalowitz insisted that he was not advocating for a rule that would eliminate a requirement that the exercise of jurisdiction be fair or reasonable, to protect “citizens and non-citizens alike from arbitrary federal action.” But the PSJVTA meets such a requirement, he maintained.
Justice Amy Coney Barrett asked whether, if the court were to interpret the Fifth Amendment as requiring that the defendant have some connection with the United States, the justices would effectively be overruling some of the 19th century cases interpreting the Fifth Amendment’s due process clause more to provide fewer protections.
Yalowitz acknowledged that at the very least, such an interpretation would be “in tension” with the older cases.
Deputy Solicitor General Edwin Kneedler told the justices that the PSJVTA is “an integral part of the foreign policy and national security policy of the political branches, including the securing of compensation for victims of terrorism.” Both kinds of conduct that can trigger the PSJVTA’s jurisdictional provision are, he said, “knowing and voluntary. They have a clear nexus to United States territory and to United States nationals and to the compelling U.S. interests in deterring terrorism.” Moreover, he added, the jurisdiction triggered by the law “is narrowly limited to terrorism cases.” “Congress’s judgment on these issues, as in all issues of national security and foreign policy, are entitled to great deference,” Kneedler concluded.
But Chief Justice John Roberts was unimpressed by the rule that the government was advancing. “It sounds like it’s a grab bag,” Roberts scoffed. It’s just “a bunch of words.”
Justice Neil Gorsuch saw what he characterized as a “tension” in the government’s position. On the one hand, as Kneedler agreed, under the Fifth Amendment the Supreme Court should play almost no role in “saying that what Congress has done is improper” with a law like the PSJVTA. But on the other hand, Gorsuch complained, the federal government wants a “safety valve” for the Supreme Court “to overrule” Congress in some cases.
Justice Elena Kagan suggested that the federal government might be reluctant to take a position “where anything Congress says goes” – that is, that there is essentially no role for courts to play in reviewing laws creating personal jurisdiction – because, among other things, there would be foreign-policy implications from “extremely broad” assertions of jurisdiction over foreign nationals, which could in turn encourage other countries to retaliate against U.S. nationals and companies.
Justice Ketanji Brown Jackson made a similar point, observing that without limits imposed by the Fifth Amendment on what Congress and the president can do, it could open a Pandora’s Box of other problems. She posited that the court could simply rule that the 14th and Fifth Amendments do not impose the same requirements and then send the case back to the lower courts.
But Barrett pushed back against any suggestion that such concerns might lead to the court issuing a narrower ruling. “[T]hese judgments about foreign policy considerations are for Congress and the president to make,” she emphasized.
Justice Samuel Alito chimed in, telling Kneedler that if the court looks at the 19th-century Fifth Amendment cases “you don’t want us to adopt that fully” and “and say ‘anything goes,’” then the court would have to “say what the test is. And then,” Alito asked, “what is the test?”
Justice Brett Kavanaugh clearly believed that the role of the courts in reviewing laws like the PSJVTA should be very limited. This is a case involving national security and foreign policy, he stressed, in which Congress and the president have already agreed on the proper role of the courts and acted pursuant to their constitutional powers to regulate the conduct of the PLO and the PA. Courts can still weigh in, he acknowledged, “to make sure they’re not crossing some other constitutional line,” but it’s normally “a very sensitive judgment” for courts to make, because Congress and the executive branch are generally going to be responsible for determining whether a law like the PSJVTA is fair.
Representing the PLO and the PA, Mitchell Berger told the justices that his clients’ conduct does not “support a presumption” that they consented to be sued in the United States under the PSJVTA. “Among other things,” he noted, when Congress passed the PSJVTA, two courts of appeals had already held that the same kinds of conduct that can now trigger jurisdiction under the PSJVTA “are constitutionally insufficient to support jurisdiction” over the PLO and the PA. “Continuing to engage in jurisdictionally insufficient conduct is the exact opposite of submitting to the court’s jurisdiction,” Berger argued.
Alito had a more practical question. “What exactly,” he queried, “is the unfairness in this case? Is it too burdensome to litigate this in New York, where the PA and the PLO,” at the U.N., engage in some activities?
Berger countered that the “unfairness” is the idea that the PA and the PLO can lose “a liberty interest for engaging in activity previously held constitutionally insufficient to support jurisdiction.”
Alito was dubious, telling Berger that his answer didn’t “sound like a personal jurisdiction argument.”
Berger then compared the situation of the PLO and the PA to a situation in which someone is “on a train where it’s sitting still and another train is moving backwards.” “That’s what Congress keeps doing with these statutes,” Berger told the justices, “which is we’re doing the same thing, and Congress keeps moving the context around us. And that’s what makes this statute as applied” to the PLO and the PA unconstitutional, Berger concluded.
But by the time the justices left the bench a few minutes later, it seemed likely that Congress would not need to tinker further with the law, and that this dispute – which Yalowitz described as “old enough to go to law school” – would go forward.
Daniel Lurie, the city’s new mayor, is scaling back a program that gives away clean foil, pipes and plastic straws for fentanyl consumption. Nonprofits will have to direct people toward treatment.
Kevin Young, the director of the National Museum of African American History and Culture (NMAAHC) in Washington DC, is not currently in charge of the museum and has been on leave since 14 March, as Donald Trump targets the Smithsonian museum network for its content.
The Washington Post first reported that Young has been on a personal leave for an “undetermined period”, according to an email obtained by the newspaper from Kevin Gover, the Smithsonian under secretary for museums and culture. Shanita Brackett, NMAAHC’s associate director of operations, is now serving as interim director.
The redesigned map, the first to be introduced in nearly half a century, is reminiscent of a version from the 1970s that was reviled by many traditionalists.
