The NYT increases scrutiny of the USSC’s partisanship, authoritarianism and secrecy

Secret shadow docket law

Context

Last February the NYT expanded its coverage of the USSC (US Supreme Court)(not paywalled), finally recognizing the stunning amount of power the court has and its shocking secrecy, and unprincipled partisanship and authoritarianism. Since Trump put 3 radical right authoritarian judges on the bench, that court has been a key source of power for Trump, the authoritarian MAGA wealth and power movement, and the rise of American kleptocracy. 

Prior NYT coverage was limited to one reporter covering mostly arguments and decisions. In Feb. that was expanded “to look further at the incredible power of the nine justices and how the least transparent branch of government operates”. The new focus is on court power, ethics, and internal dynamics. That was years overdue. With some luck, this is better late than never.

The rise of MAGA partisanship and secrecy

On April 18, the NYT published an article, The Inside Story of Five Days That Remade the Supreme Court, (not paywalled), based on previously secret USSC memos from 2016. Those documents at this link, show the partisan MAGA take-over of the court and the rise of a weaponized shadow docket that allows the court to decide major cases without a full hearing or any public notice. The trigger for the takeover was lawsuits filed against the EPA over pollution regulations that pollution-for-profit business hated and wanted to get rid of. The six MAGA judges decided to use the shadow docket to gut and neuter the EPA in as much secrecy and opacity as possible.

The April 18 article on the shadow docket uses the internal 2016 memos to reconstruct how the court’s current emergency‑order practice took shape in a climate case against Obama’s Clean Power Plan, West Virginia v. EPA. In that episode, a 5–4 conservative majority blocked a major national climate rule before any lower court had ruled on its legality, doing so in a one‑paragraph order with no reasoning. Scholars and the NYT reporters see that 2016 order as the practical “birth” of the modern shadow docket. This is MAGA’s way to quietly decide high‑stakes, often partisan outcomes on an expedited basis. Those decisions come with little legal briefing and argument, limited internal discussion at the court, and no public explanation. This flimsy policy opened the door to later shadow docket decisions in later major disputes over presidential power and other national issues.

The MAGA judges at the time in 2016 (Roberts, Scalia, Kennedy, Thomas and Alito) found a way to bypass norms that required full merits briefing, oral argument, and reasoned opinions before deciding major questions of law. Chief justice Roberts was a driving force behind the creation and normalization of this stripped-down political way to decide major cases in secrecy. Roberts pushed the MAGA judges into the purely partisan step of blocking Obama’s climate plan before any lower‑court adjudication or legal arguments. Legal scholars now argue this secrecy method is routine in presidential‑power cases. Shadow docket secrecy allows the USSC to shape and create policy while leaving the public in the dark about its legal justifications. Legal scholars point out that those decisions are almost always partisan and unprincipled.

The previously secret memos include draft proposals, responses, and strategic back‑and‑forth among the justices. Those documents clearly show candid partisan political calculations. Legal scholars see these memos as archival material they assumed would remain sealed until long after the current justices had left the bench. The NYT reporting here provides an unusually detailed, contemporaneous window into how the Court moved itself onto a more aggressive, less transparent footing. 

MAGA prejudges the EPA -- that’s partisan politics, not neutral judging

So, what did the memos show? They show what a person who has paid some attention to the USSC would expect. The Republican judges made clear they were going to decide against the EPA. Their minds were closed.[1] They wanted to issue a stay to block implementation or enforcement of the law, allowing pollution-for-profit to continue. According to legal scholars, that was not judging a dispute on the merits. It was partisan prejudging to get the decision that MAGA wanted. Those Republican judges completely ignored factors mitigating in favor of the EPA including no mention of (1) any climate risks, (2) public health benefits, and (3) EPA’s estimate of $55–93 billion in annual benefits by 2030. To get their partisan decision, all of that had to be ignored because it strongly favored the EPA’s position. Link 1, link 2

Footnote:

1. One legal scholar commented: What you see in those memos is they prejudged. There is no combination of legal or policy arguments that will change their mind. Their mind is inalterably closed.

Christian nationalism theocracy attacks birth control

A NYT opinion (not paywalled) discusses the Christian nationalist attack on federal birth control programs. A bipartisan effort created Title X in 1970 as the first federal program dedicated to family planning and reproductive health. Title X was the government's responding to high rates of unintended pregnancy that fueled poverty, worsened health outcomes, and destabilized family life. The program, backed initially by bipartisan support and championed by President Richard Nixon, dramatically expanded access to contraception. The program is credited with preventing tens of millions of unintended pregnancies, sharply reducing teen birth rates, cutting child poverty, and saving governments substantial Medicaid costs, all while improving women’s physical and psychological health, economic stability, and children’s outcomes. Modern contraception is a medical miracle that has saved the lives of millions of women.

However, current Title X funding guidelines aim to redirect the program away from its core mission of preventing unintended pregnancies and toward promoting conception. This change in focus aligns with the priorities of anti-abortion activists, and MAHA-aligned wellness propaganda. The new guidance minimizes effective contraception, barely mentioning it while elevating “fertility-awareness-based methods”, which have much higher failure rates than IUDs and other modern methods. The theocratic guidance also prioritizes male fertility counseling and lifestyle issues like pornography use, low sperm count, and environmental toxins, while downplaying contraception’s role in healthy pregnancies and chronic-disease treatment. 

Although Biden-era rules still require Title X funds to support access to a range of modern contraceptives, they are vulnerable to reversal by theocratic zealots. The program has not recovered from Trump’s first-term restrictions that drove clinics out and halved the number of patients served. This shift directly threatens affordable contraception and the future of Title X. It also marks the collapse of a longstanding bipartisan consensus that even poor women should have the publicly supported ability to shape their own futures and families. Link, link, link

Arendt regarding what dictators do to universities

Arendt as political theorist

In 1946 political theorist Hannah Arendt wrote a short essay, The Image of Hell. Arendt's best known works are her 1951 book The Origins of Totalitarianism, her 1963 book Eichmann in Jerusalem and her 1958 book The Human Condition. Her essay was an analysis of the Nazification of German universities in the 1930s. Arendt attended Nazi SS Otto Adolf Eichmann’s war crimes trial in Israel, inspiring her to coin the label the banality of evil. Eichmann inspired that conception of evil due to Eichmann’s utterly thoughtless role in committing mass murder under the guise of just following the law and following orders. He failed to think. He really believed, or expertly pretended to believe, that he was just following the law and following orders, which was nothing out of the ordinary. Eichmann held the SS rank of Obersturmbannführer, roughly a lieutenant colonel in the US military.

Hell in academia

In The Image of Hell, Arendt focused on how professors and administrators quickly adapted themselves to the aggressive Nazi regime instead of resisting it. She argued that the speed and eagerness of this adaptation constituted a moral collapse in the academic class, not only something from external political coercion.

She described how academic self-government and scholarly standards were hollowed out as universities became loyalty to the new power, displacing truth and intellectual integrity. The essay’s core claim is that universities under dictatorship become laboratories of opportunism, servility, and conformism when academics willingly trade intellectual honesty for career safety or advancement.

Does that sound familiar?

As one would expect, when in power both dictators and totalitarians purge and replace recalcitrant and disloyal personnel. Faculty, administrators, and students were generally seen as politically unreliable, Jewish, or otherwise undesirable. They were dismissed, forced out, or worse, and their posts filled with corrupt, incompetent loyalists or opportunists. 

Obviously, scholarship was made subordinate to Nazi ideology. Research topics, curricula, and appointments are reorganized around the regime’s ideological priorities; disciplines that encourage critical thinking (especially philosophy, political theory, and independent social sciences) are marginalized or redefined. Although The Image of Hell is about Nazi Germany, Arendt intended it to be a general warning about how quickly academic institutions can be turned into instruments of authoritarian rule if the academics lack a robust sense of morality and professional responsibility in the face of authoritarian threats.

Arendt’s Hell essay pointed out that institutions, including academic institutions, hollow out and collapse faster when internal elites are willing collaborators or opportunists, not just victims of external force. 

Does that sound familiar?

The status of the Trump and MAGA threat 

Right now in America, and with limited success so far, Trump and virulent MAGA authoritarian ideology are trying to turn American academic institutions into instruments of authoritarian rule. There is clear evidence that Trump and organized MAGA authoritarianism are engaged in a coordinated project to poison universities and knowledge‑producing institutions, and bring them under loyalist authoritarian control. The attacks and goal are far reaching beyond merely getting rid of wokeness in academia. The MAGA effort includes federal executive actions in Trump’s current term, state‑level legislation, and pressure campaigns on elite universities framed as fights over “free speech,” “DEI,” or “anti‑Semitism”. The overall effect has been to weaken institutional autonomy and academic freedom. Link, link

At the federal level, cuts and freezes to research funding are not hypothetical threats. They’re already halting projects and closing programs. That poison has already inflicted serious long‑term damage to America’s research infrastructure system. Link, link

If Trump and MAGA elites get their way by taking the power of academic freedom from universities to make them into instruments of servitude to MAGA tyranny and corruption, they will destroy American universities. Our academic institutions will be converted into moral cesspools of loyalist garbage. In the long run, the damage to American society, international competitiveness and commerce will be enormous. Link, link

What are the chances that Trump and MAGA elites will get their way and take power of academic freedom for themselves? That is unknowable at present. The results of the 2026 mid-term elections might clarify which way this country is likely going to go, either pro-democracy and rule of law, or pro-tyranny and rule of shamelessly corrupt tyrants.

American collapse continues: Killing digital history

The moral, social and political rot that is engulfing America is everywhere and coming from multiple sources, corrupt, for-profit capitalism, corrupt authoritarian politics and corrupt theocratic Christian nationalism. It's complicated and messy, but very real, very now, and very much in power.

Gadget Review reports that major news sites are now blocking public access to the Way Back machine because they cannot monetize that content. They don't want AI to scrape their stuff to train AI without payment. It is now hard or impossible to track down deleted tweets or verify what a website actually said recently or years ago. For three decades, the Internet Archive’s Wayback Machine was a free public digital time machine. It preserved hundreds of billions web pages. This tool was the only public archive of its scale. Major media outlets are now systematically blocking their content because they don't want it to be available to train AI competitors. And as an added bonus, they probably don't mind hiding their mistakes or embarrassing biases.

Publishers justify blocking with at least two arguments, (1) preventing AI companies from training on their archived content, and (2) general anti-scraping concerns. For example, the NYT says that access to its archived content violates copyright law. As usual, details of that are as clear as snorkeling in mud. So, access to an increasing amount of digital history is dying. Common sense (and others) says that blocking the Internet Archive will not meaningfully stop AI, but it will make it easier to rewrite history and harder to hold liars accountable.

The archive is at this link: https://web.archive.org/.

Q1: Is it reasonable to expect bad‑faith sites, e.g., MAGA propaganda mills, crackpot conspiracy blogs, and reputation‑laundering operations, to either block archiving or pressure hosts to do so to make their worst content harder to expose?

Q2: Is this colossal stupidity (maybe an irreversible mistake) by the panicking MSM because they are doomed by capitalism combined with for-profit driven executives and the human condition that generally likes entertainment and generally dislikes serious, evidence and reasoned-based content?