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Starvation as a Weapon: Chris Hedges on Gaza
More than 1,000 Palestinians seeking food have been killed by Israeli forces in just the last few months, according to the United Nations. Israel's blockade on aid, ongoing bombardment, and the dismantling of independent relief efforts have pushed Gaza to the brink of mass famine. At least 600,000 people are suffering from severe malnutrition, and aid groups warn of a manufactured humanitarian catastrophe. 'It's not about the distribution of food, it's not about humanitarian aid. It's about creating — luring Palestinians who are desperate into the south, putting them into a closed military zone,' says Chris Hedges, the Pulitzer Prize-winning journalist and former Middle East bureau chief for the New York Times. This week on The Intercept Briefing, host Jordan Uhl speaks with Hedges about how we got here and what's at stake. Hedges spent seven years covering the conflict between Israel and the Palestine, much of that time in Gaza. He's the author of 14 books, the most recent being 'The Greatest Evil Is War' and 'A Genocide Foretold.' Listen to the full conversation of The Intercept Briefing on Apple Podcasts, Spotify, or wherever you listen. TRANSCRIPT Jordan Uhl: Welcome to The Intercept Briefing, I'm Jordan Uhl. More than 1,000 Palestinians seeking food have been killed by Israeli forces in just the last few months, according to the U.N. CBS: And as Israel's military operations ramp up, hunger is at an all time high. WTHR: At least 10 people have died from starvation in the Gaza Strip in the last 24 hours. Al Jazeera: This is what death by forced starvation looks like. JU: Famine has persisted throughout the war. But in March, the crisis deepened as Israel imposed a blockade to aid, broke its ceasefire with Hamas, and resumed airstrikes on Gaza. By May, a newly formed U.S. contractor, the Gaza Humanitarian Foundation, had taken over most aid distribution after Israel effectively banned independent and established relief groups, including the U.N. agency for Palestine Refugees, UNRWA. Gaza's 400 aid sites were reduced to just four. Recent Intercept reporting from inside Gaza observed 'a famine that is manufactured and an aid distribution system seemingly designed to cause more suffering and death.' António Guterres: We need look no further than the horror show in Gaza. With a level of death and destruction without parallel in recent times. JU: UN Secretary-General Antonio Guterres speaking at the Security Council. AG: Malnourishment is soaring, starvation is knocking on every door, and now we are seeing the last gasp of a humanitarian system built on humanitarian principles. Sky News: [Gunfire] This is what the head of the U.N. is talking about. [Gunfire] The abject chaos and danger Gazans face trying to get food. JU: In one of the strongest rebukes of Israel's actions to date, more than 100 aid and human rights groups issued a joint statement calling on world governments to intervene. DN!: The NGOs, including Amnesty, Oxfam, Doctors Without Borders warned, 'Illnesses like acute watery diarrhea are spreading. Markets are empty. Waste is piling up. Adults are collapsing on the streets from hunger and dehydration.' unquote JU: Gaza is on the brink of mass famine. At least 600,000 people are suffering from severe malnutrition, according to staff at Al-Aqsa Hospital in central Gaza. This is not a tragedy of circumstance. It's a deliberate campaign of mass starvation, enforced through Israel's unrelenting bombing and continuous blockade on the flow of aid into Gaza, which is prohibited under international law. The death toll in Gaza has reached nearly 60,000, officially, but experts and relief workers on the ground expect the actual number of casualties to be significantly higher. To be clear: This is a genocide. And Israel's campaign of ethnic cleansing wages on, as lawmakers voted overwhelmingly in the Knesset on Wednesday on a non-binding resolution demanding annexation of the West Bank. To understand how we got here and what this moment most demands, we turn to someone who has spent years reporting on the conflicts: Chris Hedges, the Pulitzer Prize-winning journalist and former Middle East bureau chief for the New York Times. He spent seven years covering the conflict between Israel and the Palestinians, much of that time in Gaza. The author of 14 books, his most recent are 'The Greatest Evil Is War' and 'A Genocide Foretold.' He has taught at Columbia, NYU, Princeton, and the University of Toronto. Welcome to The Intercept Briefing, Chris. Chris Hedges: Thanks, Jordan. JU: We're speaking on Tuesday, July 22nd. I'm eager to talk about this book, I finished it recently. But I also want to just first say thank you. You are somebody who has had an outsized influence on my understanding and views on foreign policy. And I heard you speak at my undergraduate alma mater in Youngstown, Ohio, in the early 2010s, and you were talking about the death of a liberal class and what you said there stuck with me to this day. And I remember looking around the room and seeing other people being encouraged and stimulated by what you were saying. And I've always seen you as somebody who has been able to speak truth to power and distill societal and complex problems in a way that we can all comprehend. And just wanted to say thank you. I'm really excited about this. CH: Well thanks, that day Staughton Lynd came to that event with his wife Alice. He's a great hero of mine. JU: Yes, Staughton Lynd. He's the labor attorney who fought to stop steel-mill closures in Youngstown, Ohio, and ultimately the community's post-industrial decline. CH: I remember that event because I speak at places like Skidmore where the children of the one percent are forced to go. They actually have to carry slips that you sign, and most of them probably spent the whole talk on their phones. But that wasn't true at Youngstown because I remember they were seated down the aisles because the student body was older, their parents had been laid off. They had felt the effects of de-industrialization in Youngstown, where the closure of the steel mills, and of course they had the capacity because of that experience, to ask the kinds of questions the children of the privileged don't have to ask or don't want to ask. So I remember that event very well. JU: Let's get into this book. I wanna start though with your 2002 book, 'War Is A Force That Gives Us Meaning.' In it, you talk about the use of myth to justify or perpetuate war. In one context, you talk about the creation myth of Israel and how Israelis are unwilling to question what they're conditioned to believe about the state of Israel. Then you also write about the myth of war and how through the filter of the press, the reality of war is misconstrued or even hidden. People are propagandized into believing the official narrative. In this case, in Gaza right now, it is a war for Israel's survival. It is one of self-defense and solely against Hamas. How else do you see the role of myth in Israel's genocide in Gaza? CH: Well every country, including our own, has a foundational myth, which is a narrative to essentially hold up national virtue, national courage. And we do it to this day. We've never really examined the two foundational institutions that created the United States, slavery and genocide against the Native Americans. Israel is the same. It has its own creation myth that somehow the Palestinians — who, let's be clear, had lived in historic Palestine for centuries — did not have an identity as a people, that the land was largely uninhabited. I mean, these were just completely false narratives still propagated by Zionists. And then the myth of war, which you mentioned, is another myth. And that is the myth of glory and honor, and courage and bravery and all the things that after about 30 seconds of combat you will realize are ridiculous. And it's very hard to fight that. But you know, speaking about myself, I spent 20 years overseas covering various conflicts, but also veterans who come back and attempt to be honest. You see it with groups like Veterans for Peace or Iraq Veterans Against the War. These people through overcoming a great deal of trauma and essentially being cast aside by the society and certainly their own comrades within the military have attempted to speak truth. But that truth is essentially deluged with the propaganda peddled by the news media, the entertainment industry, politicians. The tawdry reality of violence, the sickening reality of violence, the savagery of it, the indiscriminate killing that is emblematic with all kinds of industrial weapons is sanitized and rewritten and it's extremely hard to counter that myth. Just as it is extremely hard to counter the national creation myth, and we're watching the Trump administration roll back those efforts. So whether that's through teaching about slavery in school, they of course wanna restore the names of Confederate generals to US Army bases. The attack on DEI that perpetuates white supremacy and patriarchy is one that is challenged, I mean throughout our history, is challenged with great expense. And you see that in Israel, with these very courageous figures like Gideon Levy who writes for Haaretz and Amira Haas. You had the genocide scholar, Omer Bartov, who was a veteran from the 1973 war — he was a unit commander, he teaches at Brown — coming out and calling what's happening in Gaza genocide, I would argue it's a little late, but at least he's doing it. The great Israeli historian Ilan Pappé or Avi Shlaim. And these people have become pariahs in their own country because what they're attempting to do is puncture that myth. And people cling to that myth, because at its core it's really about self adulation. JU: I'm curious if you could elaborate on that. What makes this so enticing to people? Why is this type of myth-making so effective? In your books, you've talked about war specifically and the myth of war as an elixir. And you also point out how it's a deep level of introspection for anybody really to question their national myth because it's not just what you've learned, it's also how you identify and how you see yourself. So what makes it so complicated to challenge it and why is this messaging so effective? CH: Because to look honestly at who we are, where we come from, and what we've done is an existential crisis and it's extremely disconcerting and uncomfortable — as it should be. And so people prefer to have their egos and their national pride and their sense of self worth massaged and catered to even if that comes through lies. And that's why it creates both a societal and a personal crisis because one has to reckon with the darkness that is endemic within white supremacy and patriarchy and empire. And to confront that darkness is painful. It's hard. And so most people will not only flee from that confrontation, but gravitate towards figures, let's say like Trump, who essentially perpetuate or trumpet that myth because it's about feeling good about ourselves. I mean, James Baldwin writes about this quite eloquently, and he talks about the confusion of ignorance with innocence. That somehow Americans are innocent. Well, they're innocent in their own eyes because they're willfully ignorant. They willfully blind themselves to who they are, what they've done. Whether it's in Vietnam or Iraq or Afghanistan or Gaza, where this genocide would not be perpetuated but for the stockpiles of munitions that are sent to Israel. Israel blew through its stockpiles many months ago. I think up to 80 percent of all munitions that Israel uses come from the United States. And it's just easier not to look. It's the old story about the good German, the people who claim that they didn't know there were concentration camps and they didn't know that their Jewish neighbors were being disappeared and shoved into crematoriums. But that's true in every conflict I covered, including in Bosnia. The Serbs in Belgrade really did not want to know and did not know the genocidal campaigns that the Bosnian Serbs were carrying out in Bosnia against the Muslims. JU: Now this new book, 'A Genocide Foretold' is heavy. It's a depressing read, and at times it made me question humanity. How could so many people stand idly by? But in your conversations, your encounters and your experiences with Palestinians and Gaza, you found glimmers of hope. You witnessed real courage and an unwillingness to accept a terminal fate. Could you talk about some of the people you talked to for this book and maybe something one of them said or did that you still think about? CH: Yeah. I opened the book in Ramallah. I was visiting my friend Atef Abu Saif, the great Palestinian novelist. He's from Gaza. He and his teenage son were in Gaza on October 7. They were stuck in Gaza for 80 days. He wrote a memoir a kind of diary of that experience called 'Don't Look Left,' which I highly recommend. I think that this is true in all [war] — war brings out both the best and the worst in people. I mean, let's look at the gangs that steal food and sell it on the black market. If you wanted to leave Gaza — no one can leave Gaza now, by the way. But before you had to pay Hala, the Egyptian organization, $5,000 in U.S. cash per head to get out. So you have families who don't have many resources scrambling, contacting relatives and friends abroad to try and raise those funds to escape the hell that Gaza is. So you have those predators that arise in every war. I remember during the war in Bosnia, one of the most lucrative ways to earn money was — both on the Serb side and on the Bosnian side — when Serb soldiers would be killed, you would have a gang or a mafia that would hold the body and then the Serb Mafia would do the same with Muslim bodies. And at night, for huge sums of money, those bodies would be sold to their families across the river. So that's always true in war. It brings out these predators who see the vulnerability of others [as] a way for personal enrichment and empowerment. But war also brings out, among those who have a conscience and empathy, tremendous acts of self-sacrifice and courage. And when you confront the radical evil that is war, that self-sacrifice, that courage, that empathy can get you killed. It's subversive. And so you see these figures of the doctors and medical staff in Gaza, hundreds who've been killed. I think the number is 400 [medical staff], over 200 journalists have been murdered. And let's be clear — I just came back from Egypt where I've been interviewing Palestinians — these are targeted killings. They're not random killings. For instance, they usually will kill the doctors as they're either going to their shift at the hospital or returning. And they'll bring in a quadruped, one of these drones, and you'll have a multi-story apartment building and the apartment building of that doctor or that journalist often is just attacked and blown up. So it's clearly targeted or they're targeted as they're moving either to and from their work. For instance, I was in Qatar. I've been to Qatar twice to do broadcasting for Al Jazeera Arabic and Al Jazeera English. And when you go into the foyer, it's quite chilling, that just including of course Shireen Abu Akleh who was murdered in the West Bank by an Israeli sniper. Just the number of photographs of the dead. And these people are not naive. They know what it means to be a doctor in Gaza. They know what it means to be a journalist in Gaza. And yet they do it anyway. So that's classic in terms of my experience in war. And on the one hand, of course, it shows the worst aspects of humanity — what human beings are, the atrocities human beings are capable of committing. But then it shows these remarkable figures, who at the risk of their own lives and many of them don't survive, stand up to do what's right. And let's be clear, they're not usually intellectuals, usually. The intellectual class collapses pretty quickly. Intellectualism is morally neutral and many times the intellectuals are the worst. And I think we see that here. I don't know of any head of any Holocaust studies department, there may be one, but I haven't seen one who's denounced the genocide. You have a handful of genocide scholars like Omer Bartov, for instance, who have. And I would suspect just about every university in this country has, if not a department, certainly a Holocaust studies program — they've said nothing. And that's to ignore the fundamental lesson of the Holocaust, which is that when you have the capacity to stop genocide and you do not, you're culpable. And we're all culpable for what's happening now in Gaza. [Break] JU: I want to pivot to Israel's pattern of lying, stalling, investigating, and then later, but only sometimes, quietly admitting wrongdoing. You write about the attempts to obfuscate the al-Ahli hospital explosion where a blast took the lives of a few hundred people. And that exact number varies from both al-Shifa Hospital and the Gaza Health Ministry, but it injured over 300 more people. Could you remind listeners of that tragedy, the spin in the aftermath, and how the response by Israel and its allies is part of a larger, deliberate effort to blur reality? CH: Well, you know, I spent seven years covering this conflict, and a lot of that time in Gaza, I lived in Gaza at a place called the Marna House, which of course doesn't exist anymore. And this is a pattern. So when Israel carries out an atrocity — when I was there they were bombing refugee camps, and they claim that these were, in their words, surgical strikes against a bomb making factory. Well, in fact, when you got to the dense overcrowded alleys, they were just rows of bodies, including children. Whole blocks had been destroyed. But Israel dominates the news cycle by perpetuating their version of events, which is almost uniformly untrue. The Israeli government lies like it breathes. For instance, with the assassination of Shireen Abu Akleh, they claim that Hamas militants shot her. It turned out that there was footage and B'Tselem, this great Israeli human rights organization, they proved this to be false. But by the time the information comes out and weeks later, as is the pattern, Israel will concede that yes, maybe she was killed accidentally by — but it doesn't matter, the story is moved on. So in the case that you mentioned they claim that these were errant rockets. Actually, the New York Times noticed that the timestamp on the video that Israel released didn't correspond to, in any way, to when the explosions took place. So we knew it was false, but that's classic. Israel is very media savvy. When I covered Gaza for instance — and this didn't happen in any other conflict I covered — I would be interviewing eyewitnesses and victims, and then the Jerusalem Bureau would just be inserting almost every other paragraph statements from the IDF, from the Israeli Defense Forces, countering what these victims and eyewitnesses said. What it does is essentially neutralize the story and by the end of it, you can believe whatever you want to believe. But that's been exposed. There's only so many lies Israel can tell — that hospitals are command and control centers for Hamas, human shields. The irony is that Israel is the one that uses human shields on a regular basis and because Hamas, the resistance fighters, will booby trap buildings. They will take Palestinian prisoners, put them in Israeli army uniforms, not give them a weapon, and sometimes with their hands tied or their handcuffed, and then force them into tunnels or buildings that are potentially booby trapped ahead of Israeli troops. That's extremely common. But I sense that I —I think with almost two years of this live streamed genocide, I don't sense that Israel's capacity to fool the public is as deft or as effective as it was when a lot of people weren't paying close attention. For instance, a few years ago, there was this horrible scene at Netzarim where a father was sheltering his young son. The young son is killed. It's just the video footage — I can hardly look at the footage anymore from Gaza, it's just I've lost colleagues and friends. Actually, the — it's not so many, I mean, some of them we know have died, but it's more that we hear from them sporadically, and then we just stop hearing from them completely. And I assume they're buried under the rubble. The numbers of dead are far, far, far above the 50-some-thousand, what is it, 56,000 official death count. I would not be surprised if it's 100, 200,000. Atif's, my friend's sister-in-law or family were all killed. Most of them were niece survived, but lost both her legs and an arm. But they're not counted in the records because the numbers of death or the official statistics on death are accumulated either in morgues or in hospitals, which are no longer functioning. That is the way Israel operates. Here they imposed a blockade on food and humanitarian aid on March 2nd, increasing not only widespread malnutrition, but cases of starvation. Then they have destroyed UNRWA, the UN agency that once had 400 distribution points for food. And turned it over to this probably Mossad-created, but certainly Israeli-backed, Gaza Humanitarian Foundation which only opens aid distribution points for an hour, and nobody argues they have anywhere near enough aid to feed a desperate population. But they've set these up in southern Gaza as kind of traps or bait to lure Palestinians in. And then when people can't get food and there's rioting and people will crawl, push their way into these centers desperate to get a food package. Most people are carrying knives either to protect themselves or to steal food packages from others. And then Israeli troops and US mercenaries hired by this agency have killed over 700 Palestinians and wounded thousands. But of course, it's not about the distribution of food, it's not about humanitarian aid. It's about creating — luring Palestinians who are desperate into the south, putting them into a closed military zone. They're talking about 600,000 to begin with, which is just a gigantic concentration camp. And that is the next step, of course, is expulsion. Israel is in conversation with countries like Somalia, Somaliland, Sudan, and they don't really care where they go. I would not put it beyond Israel to breach the fence. There's a nine mile border between Egypt and Gaza. Parts of that border are literally just a fence. To breach the fence, despite Egyptian objections and pushing Palestinians out. But that's the next step. It is the complete ethnic cleansing, the complete depopulation of Gaza. And that's why if you look closely at footage, you'll see, especially in the north, these heavy bulldozers and excavators that are ripping down buildings that are in rubble. They're clearing it to essentially expand greater Israel, just as they have expanded greater Israel into Lebanon and into Damascus. JU: You also tackle one of the more challenging and nuanced aspects of this conflict, armed struggle and resistance. In 'War As A Force,' you talk about how you're not a pacifist. You write 'There are times when the force wielded by one immoral faction must be countered by a faction that while never moral is perhaps less immoral. We, in the industrialized world, bear responsibility for the world's genocides because we had the power to intervene and did not.' I raise this because I'm curious how you see this ending. If there's a pathway to avoid the total erasure and destruction of Gaza and driving out the Palestinians who remain there. Is there a diplomatic solution or is armed resistance or military intervention the only hope they have left? CH: No, I mean, Hamas has been pretty decimated. And let's be clear, the Palestinians under international law have a right to use armed force to resist what's happening to them. The only solution would be for the United States to suspend or cut all military aid to Israel or a coercive measure taken on the part of countries to create a no-fly zone over Gaza and use naval vessels to break the Israeli blockade to deliver humanitarian aid. I don't see any of that happening. Short of either of those two things happening, Israel will probably succeed and its demented vision of depopulating Gaza, driving people off land that they have lived in for centuries. And of course, they're turning with increasing ferocity on the West Bank. If they get away with Gaza, and I think they will, they'll try the same thing in the West Bank. So, as was true in the war in Bosnia, it was clear to — though I was in, based in Sarajevo during the war — it was clear that only a NATO bombing— So we were completely surrounded. Sarajevo was completely surrounded by Serb heavy artillery. They dug in tanks and these 90 millimeter tank rounds were just used as artillery shells. They were firing Katyusha rockets. Those are bursts of rockets that can take — I've seen it — take down a four story building in a matter of seconds killing everyone inside, usually. The only way it would stop would be to launch airstrikes. And of course, the Bosnian government didn't have any heavy weapons, much less air power. And when that was done, the Serbs were broken. And I supported that action and I support coercive measures to halt the genocide in Gaza. That's what the United States and NATO allies did in northern Iraq. And I was there when Saddam Hussein carried out a campaign of ethnic cleansing of the Kurds, and they were dying in the mountain passes. Well, they forced the Iraqis to withdraw below the 38th parallel of Iraq and created a no-fly zone. That's exactly what should be done in Gaza. That's the only way to halt it. JU: For years, you've talked about and written about how war is a stimulant, and it's used to divert people's attention away from societal collapse. What does that collapse look like now? How has the Trump administration's actions impacted your analysis of American decline? CH: Trump is, you know, he's the symptom. He is not the disease. American decline has been long in the making, decades long in the making. Our democratic institutions were eroded and corrupted, and neither of the political parties really function as real political parties. Even the Democratic voters didn't have a say in Kamala Harris's nomination. Ran this vapid issueless, celebrity driven campaign. Which of course failed spectacularly. You know, a figure like Trump arises out of this morass, out of this social decay. It's what I saw in Yugoslavia. So the war in Yugoslavia was not caused by ancient ethnic hatreds. It was caused by the economic collapse of Yugoslavia and also hyperinflation. And it vomited up these Trump-like figures, Radovan Karadžić and Slobodan Milošević and Franjo Tuđman. And these demagogues pedal a hyper-masculinity. They're cultish figures. They pedal magical thinking. They prey on the despair and desperation of a population that feels completely betrayed. As the working class in the United States has been betrayed in particular by the Democratic Party. Since Bill Clinton gave us NAFTA in 1994, we've had 30 million mass layoffs. And this has just destroyed— My mother's family all comes from Maine. The mills are all closed. I am intimately familiar with the psychological, economic, and physical toll that this has taken. And of course, in desperation, they have turned to a figure like Trump. I think Trump would have been destroyed by a figure, a candidate like Bernie Sanders who talked the language of the New Deal. I think that's why you're seeing so much support in the mayoral race in New York for Zohran Mamdani. But the Democrats, they betrayed their own base. And what Trump is doing, it's kind of the rule of idiots of late empire. He is accelerating the implosion of empire, the destruction of empire through willfully ignorant and self-serving and counterproductive measures. I'm no fan of the Voice of America. USAID, I watched it work. It was clearly used to manipulate governments. That's why Morales threw them out of Bolivia because if there's a government they don't like, they're running all these quote unquote democracy initiatives, which are really just funding and organizing the opposition. They use aid as a weapon. For instance, in Port-au-Prince, the Haitian government wanted a new airport. USAID was willing to give them money, but they said you always have to oppose Cuba's entry into the organization of American states. I mean, so there's always kind of this quid pro quo, but Trump doesn't even understand how the empire works. And that's characteristic of late empire. He's surrounded himself with sycophants and grifters and con-artists and imbeciles and buffoons. These people are however dangerous, but they don't have a clue as to what they're doing. They have the capacity to destroy, they're destroying the Department of Education, for instance, or the EPA, but they don't have the capacity to build anything. And so if you look at late empire— I studied classics. For instance, if you look at the end of the Athenian Empire or you look at the end of the Roman Empire, you had a very similar phenomenon where those people who manage the empire at the end accelerate the collapse. And that's precisely what Trump is doing. JU: We're also starting to see more elected officials, including a handful on the right, criticize the billions in foreign military aid we send to perpetuate and prolong wars and argue we have more pressing domestic needs that affect people's material conditions. Now, what do you make of this slowly but seemingly growing group of members of Congress? Is there a noticeable shift and what do you think the way forward is? CH: Well, they're responding to a widespread feeling among the population that while they're suffering and while they're distress is not being addressed, we're sending billions of dollars to Israel and Ukraine. But the only way to halt this is to severely cut back the one trillion dollars roughly we give to the Pentagon every year. And they're not going to do that because the military is a state within a state. It can't be defied in the same way that the CIA can't be defied. And that's why the socialist Karl Liebknecht on the eve of World War I called the German military, the enemy from within. And even Bernie Sanders, if you watch, was loathed to take on the military industrial complex. That was a battle he didn't wanna fight. They're not even audited, I don't think the pentagon's been audited for a decade. So you have half of all discretionary spending being poured down a rat hole. These debacles in the Middle East — Iraq, Afghanistan, Libya. Syria, Gaza — Ukraine, and it of course drives up the debt, which is dangerous. But it also diverts money or there is no money for the most basic social services, whether that's Meals on Wheels or anything else. So that is — Arnold Toynbee, the historian cites an out of control military, an unregulated, uncontrolled military machine as being the common characteristic of the decline of all empires. And I think that is precisely where we are. So yes, you're right. People will raise these issues, but unless they're willing to confront the war industry, and unless they're willing to seriously curtail the money that — we spend more money on the war industry than, I think it's the next eight countries combined, including like Russia and China and everywhere else. So that's how empires die. And I don't see many politicians willing to take on that battle because that would implode their political career. JU: I wanna thank you so much for joining me. 'A Genocide Foretold' is available wherever you get your books now. Do you have anything else you'd like to add and where can people find more of your work? I know I follow you on substack, I've been a day one subscriber. CH: Yeah, So that has everything. And the only thing I would add is just my deep admiration for the students at these universities who've stood up. They're the nation's conscience. For these groups, like Students for Justice in Palestine, Jewish Voices for Peace, I have unbounded admiration for them. As I do for these very lonely figures like Francesca Albanese, the U.N. repertoire. These are real heroes and when the history of this genocide is written, it will condemn most of us, but it won't condemn them. It's because of their work that people like myself who are outspoken about the genocide are able to continue. JU: Chris, thank you so much for joining us. CH: Thanks, Jordan. JU: That does it for this episode of The Intercept Briefing. We want to hear from you. Share your story with us at 530-POD-CAST. That's 530-763-2278. You can also email us at podcasts@ This episode was produced by Laura Flynn. Sumi Aggarwal is our executive producer. Ben Muessig is our editor-in-chief. Chelsey B. Coombs is our social and video producer. Fei Liu is our product and design manager. Nara Shin is our copy editor. Will Stanton mixed our show. Legal review by David Bralow. And transcript by Anya Mehta. Slip Stream provided our theme music. You can support our work at Your donation, no matter the amount, makes a real difference. If you haven't already, please subscribe to The Intercept Briefing wherever you listen to podcasts. And tell all of your friends about us, better yet, leave us a rating or a review to help other listeners find us. Until next time, I'm Jordan Uhl. Thanks for listening.
The Intercept
18-07-2025
- Politics
- The Intercept
Executive Lawlessness: Leah Litman on the Supreme Court Enabling Presidential Overreach
During Donald Trump's first term, the Supreme Court made some effort to check his power. But that era is over. The court has ruled that Trump cannot be prosecuted for actions he took as president, including for his role in the January 6 attack on the Capitol, and it just wrapped its latest term by restricting lower courts' power to block his unlawful orders on issues like birthright citizenship, abortion care, and immigrants' basic rights. 'What the Supreme Court did is it limited lower courts' ability to use what has been the most effective tool that lower courts have to reign in the Trump administration's lawlessness, which is to block a policy on a nationwide basis,' says Leah Litman, author of the new book, 'Lawless: How the Supreme Court Runs on Conservative Grievance, Fringe Theories, and Bad Vibes.' This week on The Intercept Briefing, newsroom counsel and correspondent Shawn Musgrave speaks with professor and attorney Litman and politics reporter Jessica Washington about how the Supreme Court's right-wing supermajority is laying the legal foundation for unchecked executive lawlessness — and signaling to Trump that it won't stand in his way. Listen to the full conversation of The Intercept Briefing on Apple Podcasts, Spotify, or wherever you listen. TRANSCRIPT Shawn Musgrave: Welcome to The Intercept Briefing. I'm Shawn Musgrave, newsroom counsel and correspondent for The Intercept. During President Donald Trump's first term, the U.S. Supreme Court seemed at least somewhat interested in holding him accountable to the law. But even before Trump was reelected, the Supreme Court showed signs that it wouldn't stand in his way in a second term. CBS: Well you've been watching a special report. The nation's highest court has ruled that former President Donald Trump is entitled to some level of immunity from federal prosecution for official acts he took while in office. PBS: Former President Donald Trump is immune from criminal prosecution for any so-called official acts taken as president. WHAS11: Absolutely immunity for core constitutional powers. SM: Last summer the Supreme Court ruled that Trump couldn't be prosecuted for actions he took as president, including for his role in the January 6 attacks on the Capitol. And this past June, the Supreme Court finished its term by limiting lower courts' authority to block any of Trump's unlawful orders on issues like birthright citizenship, abortion care, and immigrants' basic rights. The Supreme Court's conservative supermajority also greenlit Trump's horrific practice of deporting people to countries they've never lived in, countries where they may face torture and inhumane detention, like South Sudan. The Court did so with barely any explanation at all. For good measure, this term the Court also signed off on a slew of conservative attacks on transgender and reproductive healthcare, pornography, and even basic representation of queer people in public school classrooms. All of these are perfectly legal and constitutional, according to Chief Justice John Roberts and the six rightwing justices. Joining me now to discuss the Supreme Court and how we got here is Leah Litman, a law professor at the University of Michigan and co-host of the Strict Scrutiny podcast. In May, Professor Litman published a new book, 'Lawless: How the Supreme Court Runs on Conservative Grievance, Fringe Theories, and Bad Vibes.' Welcome to the show, Professor Litman. Leah Litman: Thanks so much for having me. SM: Also joining us is Jessica Washington, politics reporter for The Intercept, who's been covering legal battles over reproductive rights and other issues. Welcome, Jessica. Jessica Washington: Thank you for having me. SM: We're speaking on Friday, July 11. Professor Litman, before we get into the Supreme Court's train wreck of a term, could you set the scene a bit? Your book essentially argues that the Supreme Court's conservative supermajority is no longer practicing law. It's just doing conservative politics using judicial language. How did we get here? LL: So I think we got here in a number of different ways. One is a story of the decline of our democratic institutions. In part because of the Electoral College and Senate malapportionment, it became easier for a party that enjoys only minority support to win control of the Senate and the presidency. And of course, those are the institutions that then select Supreme Court nominees. And so you almost have this double layer of democratic deficit that is built into the modern Supreme Court. And that court therefore became increasingly comfortable catering to an increasingly narrow segment and minority of the country. You add to that several choices that the Republican Party itself made to really lean into the politics of minority rule, deciding to basically channel the backlash to feminism, channel the backlash to the civil rights movement, and go all-in on oligarchs and corporate interests. And that made them a party that then depends on minority rule. And so in order to constantly whip their base into a frenzy, they always portray themselves as the victims. And so when that is the message of the political party, and that party can obtain power through minority rule, that's what you are going to see in the justices they appoint. Particularly because they also perfected this judicial selection machine where they could identify people who are willing to go all-in on some of the more fringe elements of the party. SM: And we'll get into this a little bit when we talk about some of the recent decisions. But what role does originalism — the judicial doctrine favored by the six of the justices now, and kind of depending on how you count some of the other liberal ones, maybe they're also originalists too — but how does originalism play into your framework and kind of what we're seeing recently from the court? Can you first talk about what originalism is and what role it's playing? LL: Of course. So originalism refers to a method of interpreting the Constitution, and it generally maintains that the Constitution means what it meant when it was originally ratified, whether that's in the 1700s, or in the case of some of the amendments, 1800s or afterwards. And so it directs decision-makers to a time when the country was much less democratic. And therefore it's not really surprising that originalism cropped up as a way of resisting some of the civil rights movements and advances of the 20th century. The first time you start hearing things about how the Supreme Court departed from the original intent of the framers was in the aftermath of Brown v. Board of Education, when segregationists are criticizing the court declaring segregated public schools unconstitutional. And then it really picks up steam during the 1980s in the rise of the Federalist Society and as the Ronald Reagan administration decides to lean into the backlash to feminism and the civil liberties and civil rights revolution of the 1960s. And so originalism starts to become trumpeted and advertised as the method of getting courts to roll back those civil rights advances. And I think it kind of naturally lends itself to doing so. So how does it fit in? I mean, it was a project that was pumped out and advertised as a way of accomplishing some of the Republican Party's agenda. And it's no surprise that in the hands of a super majority Republican dominated Supreme Court that it does just that. SM: So let's talk about how this has played out in some recent decisions, specifically, decisions around reproductive healthcare. Jessica, in June you wrote about a ruling that paved the way for South Carolina and other red states to target Planned Parenthood's funding. Can you tell us about that decision and how it relates to ongoing fights about defunding reproductive health? JW: Yeah, definitely. So Medina v Planned Parenthood at South Atlantic, which is the case you're referring to, can effectively be boiled down to: Can states bar Medicaid patients from accessing a healthcare provider, in this case Planned Parenthood, for ideological reasons? And the court's answer was more or less, yes they can. To take a major step back though, in 2018 South Carolina's Governor Henry McMaster attempted to exclude Planned Parenthood from the state's Medicaid program, limiting the healthcare options for the 1.3 million South Carolinians who were in the program. McMaster was explicit that he did this because Planned Parenthood provided abortion care, and I think it's really important when we talk about this, remember that Medicaid in South Carolina does not cover abortion care, except in extremely limited circumstances. And lower courts have repeatedly sided with Planned Parenthood arguing that the Medicaid act, kind of ironically when we're talking about originalism, explicitly allows recipients to pick the provider of their choice in a clause known as the free choice of provider provision. But in June, the Supreme Court rejected those earlier interpretations in a six-three decision. They ruled against Planned Parenthood and that Medicaid recipients do not have a right to pick a specific provider. Obviously, as you've mentioned, this comes in a long history of Republicans trying to defund Planned Parenthood any way they can. And this ruling extends so far beyond South Carolina, essentially granting other conservative states the leeway to also exclude Planned Parenthood from their Medicaid programs. This has massive implications for millions of low income Americans. I believe nationally, about a third of all women have received healthcare services from Planned Parenthood. And now we're talking about limiting access to reproductive and sexual healthcare in places where access is already abysmal and incredibly limited. I mean, we have incredibly high rates, I think, in South Carolina of maternal mortality, of sexually transmitted diseases, and really limited access to contraceptives and of course abortion care. SM: So Professor Litman, this sounds like a pretty technical decision, but Justice Ketanji Brown Jackson writing for the three liberals wrote a pretty fiery dissent, slamming it as 'part of a project of stymying, one of the country's great civil rights laws.' How does this decision about Medicaid and Planned Parenthood and interpreting one federal statute fit into broader efforts over the decades to chip away at reproductive rights and other civil rights? LL: Absolutely. So I would highlight two aspects of this decision that I think are relevant. One is that, in my view, it really underscores that the movement that led to the rise of originalism, the movement that led the court to overrule Roe v. Wade, it was never just about originalism. It was never just about letting the voters decide whether abortion access is protected. It was always about this broader backlash to women's sexual autonomy, their sexual freedom, feminism and civil rights more generally. And so of course, right, this decision is not about originalism, it's not about the constitution. It is about how to interpret this set of federal statutes. And so it's no surprise that even when they're not turning to this methodology originalism — that again, was advertised as a way of rolling back Roe v. Wade and other social policy advancements — that they would do the same thing and accomplish the same result just through a different method here, interpreting statutes. Now, when you say Justice Jackson links this to the broader project of rolling back civil rights, as Jessica described, the question in this case is whether patients and providers can sue states when states violate federal law, the Medicaid act. Again, no real question here that South Carolina's decision to boot Planned Parenthood violates federal law. Supreme Court, right, doesn't deny that it does. The question is whether you can do anything when a state violates that federal law and the patients and providers had relied on this federal statute, section 1983, which is known as the General Civil Rights Law. That law was passed in the wake of the Civil War during reconstruction as a way of ensuring that private citizens can enforce their federal civil rights and get their day in federal court when states are attempting to deny them their rights. And that is the federal law that the Supreme Court says these patients and providers cannot rely on when South Carolina is attacking women's access to healthcare. And Justice Jackson links the court's decision to narrow civil rights remedies and the ability to enforce civil rights to the Supreme Court largely dismantling reconstruction in the aftermath of the Civil War. And so I think that those are really the two projects on display in this Planned Parenthood decision, both an attack on the project of multiracial democracy, that reconstruction represented, and also this attack on feminism, the idea that women have rights. SM: So there's another way that this has played out recently in the reproductive healthcare arena. Last summer, two years after overturning Roe in the Dobbs decision, the Supreme Court punted in another major abortion case out of Idaho, and we're now starting to see the fallout from that move under the Trump administration. The case last summer was about patients' rights to emergency abortions under the Federal Emergency Medical Treatment and Active Labor Act, or EMTALA. The Supreme Court sent the case back down to lower courts without ruling on what's actually protected or not under that federal law. Jessica, so what has the Trump administration been doing recently to weaken protections for emergency abortions? JW: Thank you for asking about this. So just to start off, EMTALA or the Emergency Medical Treatment and Labor Act requires that hospitals that take Medicare provide stabilizing care to patients experiencing medical emergencies. So in 2022, after the fall of Roe, the Biden administration provided guidance, clarifying that if abortion care was necessary to stabilize a patient in an emergency situation, hospitals were required to do so, regardless of the abortion laws in the state and whether or not they contradicted that effort. So in June, the Trump administration rescinded that guidance with a super vague statement, essentially saying we're rescinding this, but kind of nothing really changes and we don't interpret it the same way. And they said that, and I'll read it cause I think it's helpful to. 'CMS will continue to enforce EMTALA, which protects all individuals who present to a hospital emergency department seeking examination or treatment, including for identified emergency medical conditions that place the health of a pregnant woman or her unborn child in serious jeopardy.' It's really not clear what they meant here. They didn't add a ton of extra information. HHS told me that effectively nothing would change when I asked. But when I talked to providers, they told a very different story. They said the confusion caused by this new guidance would get women killed in these really uncertain and fast-paced medical emergencies where every second counts. So essentially what the Trump administration has done here is add a bunch of confusion into our medical system that already had a ton of confusion, and this confusion gets people killed. SM: Professor Litman, let's talk about the Supreme Court's role in the confusion. This seems like another example of the conservative majority on the Supreme Court using a procedural or technical maneuver to give anti-abortion Republicans and the Trump administration now free reign. They didn't technically weaken or change the federal law EMTALA, but they also declined to say what it meant. So can you talk about what you see in the road ahead for reproductive rights under this court? LL: I mean, the Supreme Court has its hands all over the unfortunate catastrophe that is unfolding because states are basically being told maybe you don't have to abide by EMTALA when it comes to abortions. So what the Supreme Court did in this EMTALA case is it dismissed the writ as improvidently granted, which just means they decided not to decide whether EMTALA actually does prevent states from enforcing their abortion bans to prohibit hospitals from providing health and stabilizing care when that care is an abortion. When a woman shows up to an emergency room and she's experiencing severe complications, and the question is can we stabilize her by providing an abortion and some states restrictive abortion laws say, no you can't. And EMTALA, right, should say, no you have to. And so by declining to decide whether EMTALA does indeed prevent states from enforcing their abortion bans in those circumstances, the Supreme Court left open the possibility that states can continue to enforce their abortion bans in those medical emergencies. And so that is what creates the uncertainty that Jessica is alluding to, whether indeed these abortion bans can be enforced against hospitals and doctors that are trying to provide life and health saving care to their patients. I think the second way in which the court is responsible for this catastrophe is during the period in which the Supreme Court was ostensibly deciding to decide whether to decide it, they had stayed a lower court ruling that had blocked the state from enforcing its abortion ban in these cases of medical emergencies. So what happened when the state could enforce its abortion ban in these cases of medical emergencies, women had to be airlifted out of the state in order to receive emergency care. If you read the stories of these patients, it is appalling. SM: Yeah, it's horrifying, LL: Right, like they are telling the helicopter pilots and whatnot, tell my children I love them. They don't remember what is happening. Women are being told, maybe get helicopter insurance because the price of these rides is just immense. And so the Supreme Court, again allowed the state to enforce its abortion ban during the period in which it was deciding whether to decide this case, opted not to decide it, and thereby cleared the way for the Trump administration to signal to states, don't worry, you can enforce your abortion bans in these medical emergencies. SM: Let's turn to some of the other signals the Supreme Court is sending to the Trump administration and conservatives around the country. Let's start with the birthright citizenship case. The conservative majority didn't address whether we all still have birthright citizenship as a bedrock constitutional concept via the 14th amendment. Instead, they ruled that district courts couldn't issue nationwide injunctions in a staunchly originalist decision that Justice Jackson torched in her dissent as a 'smokescreen of legalese.' So Professor Litman, what's the real impact of this decision and how does it fit into your framework of a vibe-based Supreme Court? LL: Yeah, so the impact of this decision I think is twofold. One is the practicalities in litigation, that is, where it might actually undermine people's ability to enforce their rights. And then the second is more atmospheric and what signals they are sending to the Trump administration as far as emboldening their attacks on lower courts. So I'll just start with the first, kind of like the practical rubber hits the road. What the Supreme Court did is it limited lower courts' ability to use what has been the most effective tool that lower courts have to reign in the Trump administration's lawlessness, which is to block a policy on a nationwide basis. Because what the Supreme Court is saying is in order to block the administration from applying its policy to anyone anywhere, you need one of two things to happen. One is your case needs to proceed as a class action, and the second is a case could be filed by a state and a court would have to conclude that in order to remedy all of the harms to a state, the policy has to be blocked on a nationwide basis. Now, some cases involving some policies are going to be able to clear those procedural obstacles, but not all of them are. And so what that means is in some set of cases, the Supreme Court is going to say, no, you can't have a class action here, or your state can't get a nationwide injunction. And what that is going to create is what Justice Jackson called a catch me if you can regime of executive lawlessness, where in order to prevent the executive brand from violating your rights, you would have to sue. And that allows the executive branch, again, to potentially implement its illegal policies in some places that didn't opt to sue against some people, who weren't able to get a lawyer, or weren't able to be part of a class action that was certified. And that's going to create this patchwork of lawlessness where the executive branch is basically free from its legal obligations. In some ways, I think, the more concerning aspect of this decision, although that is certainly very concerning. The more concerning aspect of this decision is the Supreme Court's choice to resolve this issue now, in the context of a case that involves some of the most egregious and blatant lawlessness. Because the Supreme Court had a choice about when to decide this question of nationwide injunctions, what case to decide it in, and also had a decision about what issues in the case to decide. That is whether they would also say, sure, you can't get a nationwide injunction, but by the way, this executive order, super illegal in multiple ways. The plaintiffs challenging it asked the Supreme Court to decide those questions and by opting to decide that the issue in this case that warranted their time is the behavior of the lower courts rather than the behavior of an executive branch that is violating the Constitution, violating federal law and refusing to comply with court orders. That the problem is the lower courts? That is really going to embolden the executive branch in their continued attack on the legitimacy of lower courts enforcing federal law against the executive branch. SM: Yeah, and since the birthright citizenship case, we've seen smaller decisions on the shadow docket from the Supreme Court of them just saying, no, actually we're just going to reverse this injunction that the lower court issued LM: Right. SM: No explanation. That's what they did in the South Sudan case. So, vibe certainly seems to be the way to think about it. [Break] SM: Maybe let's turn to perhaps the most vibe based decision of the term, in my opinion: The Pride Puppy case. LL: OK. I think I would agree with you. [Laughter] SM: Yeah. Yeah, it's a tough category. I would put it between this and maybe the porn case, but the Pride Puppy case. Jessica, can you briefly give us the background on this one? JW: So in this case, parents in Montgomery County sued over the inclusion of LGBTQ+ inclusive books. These books included, as you've mentioned, Pride Puppy, along with a host of other books celebrating people of different queer identities. Parents argued that because they weren't given the option to opt out of these lessons, their religious liberty was violated. So in this case, the court ended up siding with the families. And it's a little more complicated than that, but that saying that they were entitled to a preliminary injunction while their lawsuit went ahead. Now, I think what's important in this case to talk about is the dissent. So in the dissent Justice Sonia Sotomayor noted this was an incredibly slippery slope, and I think a lot of legal analysts could agree. This really opens the floodgates for parents to challenge on lessons from everything from evolution to civil rights if it violated their specific religious belief. This also clearly opens the floodgates as well for litigation from families over the inclusion of LGBTQ+ books and classrooms generally. So I think this is a case where you can really see this kind of slippery slope argument going forward. And also, when you're talking about this case, we're really talking about just the inclusion of queer people in general in stories for children. We're not talking about books that said you have to be trans or anything like that. We're talking about books that simply tell children it is OK to be different. SM: Or just that they exist. JW: Or that they exist! SM: Their inclusion as characters. JW: Yeah, their inclusion as human beings and people with equal value and rights. And this is definitely a backward slide. LL: Jessica, I agree with your reading of the books. But I think Shawn, why this decision takes the cake on the most vibes-based is because when Justice Samuel Alito and the other Republican appointees looked at the books, they picked up different vibes. And the vibes they picked up is these story books, which again involve a pride parade, and a puppy in a rainbow bandana, and a woman in a leather jacket, and a book in which a girl's favorite uncle is going to get married, just so happens gets married to a man, and the girl's concerned that her favorite uncle will have less time to spend with her. SM: Filth, absolute filth. LL: [Laughs] The vibes that he picked up and the other Republican appointees is what the books were saying is you have to accept marriage equality or trans people because otherwise you are evil. Like literally, if you read the opinion, Justice Alito talks about this storybook, 'Uncle Bobby's Wedding,' and says, the book is coy about the precise reason why little Chloe objects to her uncle's wedding. And it's like, it's not coy about this at all. But again, he picks up some different vibes because the books involve gay people and trans people, and he just can't live with that. SM: So this ties into a chapter of your book about the Supreme Court's really scavenger hunt for religious discrimination as part of the conservative blowback to queer people just finally getting some legal rights in landmark cases like Lawrence v Texas in 2003, which struck down state sodomy laws, and of course the Obergefell decision in 2015, which legalized same sex marriage. So can you give us a bit of the historical context for how we got to Justice Alito's very particular reading of Pride Puppy? LL: Yeah. So here too, the story really starts with the political and social movement that the Republican Party capitalized on. And in the midst of this backlash to feminism, there is also a backlash to advancements in LGBT rights. So my book talks about Anita Bryant, who is this former pageant queen who appeared in Florida orange juice commercials, and she kinda leads this crusade against LGBT rights. And she insists she's not doing so out of hate, but out of love. And that the problem is that, as she calls it, the homosexuals around the country have the support of liberal politicians and they're filled with religious bigotry. And so it's these ideas that get incorporated into the Republican Party's resistance to LGBT equality, where they paint efforts to obtain civil rights for the LGBT community as actually attacks on those religious believers who are opposed to LGBT equality. And you start to see these ideas surface in the dissents to those major cases that represented victories for LGBT equality. In Obergefell v. Hodges, the marriage equality decision, Justice Alito talks about how that decision, to again, recognize that same sex couples can get marriage licenses, how that is going to facilitate the marginalization of people with traditional views about marriage. And he says it will call to mind the harsh treatment of gays and lesbians in the past. As if allowing gay people to get married is just like prohibiting them from getting married and a period in which you could be institutionalized for consensual sexual intimacy with a person of the same sex. That's the mindset that was in play among the Republican appointees on the Supreme Court, and that is now the mindset that you can see surfacing in their majority opinions. They deny that there is discrimination against LGBT people at the same time that they insist any and all equality for LGBT individuals is actually discrimination against the religious and social conservatives who are opposed to LGBT equality. And based on that idea, they are chipping away at LGBT equality and giving people with objections to marriage equality the ability to opt out of civil rights laws that prohibit discrimination on the basis of sexual orientation or gender identity. And so it's that kind of long arc that I trace in political and social movements and then identify in the writings of the Republican appointees on the court today. SM: Right. One of the really formative moments for me in law school was reading Justice Scalia's descent in Lawrence. LL: Oh yeah. SM: And I mean, I had heard of Scalia all my life as this kind of lion of originalism and rigorous legal thought, but then if you read the entirety of his dissent, there's some pretty bigoted zingers in there that didn't quite make the news coverage at the time. LL: Yeah. He talks about how people are entitled to protect themselves and their families from what they view as an immoral or destructive lifestyle. That is how he talks about that case. SM: Yeah. And the capture of the homosexual agenda. LL: Oh, yeah. The court has signed on to the homosexual agenda. It's like, oh my gosh. SM: Before we wrap up, I want to talk a bit about the court's two most recently confirmed justices. There's Justice Amy Coney Barrett, the conservative appointed by Trump, who going into this term, was being framed as a moderate or kind of a wild card in the conservative majority by some commentators, especially compared to some of the other Trump picks for SCOTUS. And then there's Justice Ketanji Brown Jackson, who's leaning into the role now of writing these blistering, very clear-eyed dissents sometimes just for herself. So Professor Litman, what did we learn from this term about these two justices? LL: I think what we learned about Justice Jackson is that she is really the next frontier of what I hope will be Democratic appointees to the courts in that she recognizes what her Republican colleagues are up to and she is willing to call it out in ways that lay plain. You know, the slipperiness of their maneuvers, how selective they are in their approach to legal rules, and the underlying ideology that is doing work at issue in these cases. And I think her willingness to do that is, from my perspective, greatly appreciated, very powerful, and calls more attention to the Supreme Court than they would otherwise get in a world of more subdued dissents or a world where the Democratic appointees are engaged in appeasement and trying to make compromises with the Republican appointees to accomplish what, I don't know, but I appreciate her recognition that that is not the strategy right now. Especially in a world where the court is six to three Republican appointees. And I have found her writings and her statements off the bench to just be incredibly persuasive and memorable and also accessible. Justice Barrett, I was not one of the people that thought she was some secret, moderate, liberal squish. So what we learned is that people trying to sell that narrative, were selling us a false bill of goods. This is a rock-ribbed right-wing conservative, who just so happened to say a state court in New York could engage in an electronic remote sentencing of Donald Trump on those 34 felony convictions, as long as he was going to impose no prison time. Like that was one of the cases in which she departed from her Republican colleagues, in which everyone was making some big deal about it. And then, I can go into the other examples. But the point is, they weren't that big a deal. And she was with them on the big ticket cases and in fact, she's to their right on some issues. SM: Yeah, exactly. LL: In Skrmetti, the case about, yeah, the ban on gender affirming care for trans kids, the Chief Justice's majority said, oh, this law doesn't actually discriminate against trans people. And she wrote separately to say, but even if it did, I would be fine with that and still treat it as constitutional. So this is not some secret moderate who's going to save us. SM: Yeah. Her concurrence in Skrmetti was wild, especially since from her wing of the court, you're not supposed to talk about things that are necessary to the decision. So to kind of pull in this really farfetched argument that it would be really hard to show that trans people have been subject to de jure or by law discrimination was the thrust of her concurrence, which Justice Thomas signed onto. And what world, this century or another, can you make that statement with a straight face? It's not a moderate result. I agree. Jessica, do you have any thoughts, particularly reading some of the dissents that you've covered from Justice Jackson? JW: I think what's really interesting to me is in Washington, collegiality is so important. Waiting your turn is so important, you know, not speaking before your time. And the fact that she's been willing to, especially in the Supreme Court, throw that out the window: speak openly, speak often, speak forcefully, call out her colleagues — I think we're seeing, as Professor Litman pointed out, we're seeing really this shift in Jackson and hopefully a shift that we see maybe from some lawmakers as well. But this recognition that we're not in regular times, we are in this really quick descent, I would argue, towards something akin to fascism. And the fact that she recognizes that and is willing to speak on that is such a shift in this court, and it feels so important in this moment. SM: I agree. We've talked about the bleakness of recent Supreme Court decisions. Let's end maybe by looking to the future and how our democracy might find ways to repair some of the damage. Professor Litman, in your book's conclusion, you come out in favor of expanding the court and also give some other thoughts on countering the conservative reshaping of the judicial branch. So how can we, get past all the damage that the Supreme Court has inflicted so far, and probably will keep inflicting at least for the rest of Trump's term? LL: It's really two things. One are the specific proposals you can enact into law to democratize an institution like the Supreme Court. And then the second is all of the things that need to be done in order to get us to a point where we can actually adopt those reforms. So it's easy enough to list the things that I think have to be done from Supreme Court expansion, to limiting the Supreme Court's authority to strike down laws like the Voting Rights Act, to ethics reform, to all of the other things that would be very helpful to making the Supreme Court a better functioning institution, giving Congress more control over the kinds of cases the Supreme Court hears, or creating term limits, like all of that would be great. And then the question is: OK, how do we get from here to that world? And this answer is always frustrating to people and they don't like to hear it, but it's going to take a while to change an institution like the Supreme Court. And there are going to be things we have to invest in that are not going to yield immediate returns. From public education and information to organizing, to investing in state and local elections and primaries to identify those democratic leaders who understand the situation in the same way that Justice Jackson understands the situation, contra other democratic politicians and leaders. So, those are some steps, and that involves organization that involves education, and that involves staying committed to the strategy over the long haul, because again, it's not something that's going to get fixed merely by securing a good outcome in the midterms or the next presidential election because the reality is the Democratic Party is still the way it is. And part of the work that has to be done is either reshaping and reforming the Democratic Party so that it understands and responds to the situation we find ourselves in, or changing enough people's minds to create enough pressure on the current democratic leaders and democratic political elites to do that. SM: Jessica, do you have any thoughts? JW: So my two cents are definitely from the people I've spoken to, court expansion, and then also just the extent to which we've seen so much corruption within the court, really unchecked — unchecked by Congress, even though that is their role. So definitely some real checks and balances on the Supreme Court that we just haven't seen before, seems to be very important especially with everything that has come out — thank you ProPublica — about Clarence Thomas. It definitely seems like a little more rules in the Supreme Court would help us out. SM: Alright. And with court expansion and Pride Puppy. I think we're gonna leave this conversation there. Thank you so much Professor Litman for joining us on the Intercept Briefing. LL: Thanks for having me SM: And thanks for joining Jessica. JW: Thank you. SM: Last month, the Supreme Court upheld a ban on gender-affirming care for trans kids in Tennessee. In her dissent, Justice Sonia Sotomayor wrote, 'The majority subjects a law that plainly discriminates on the basis of sex to mere rational-basis review. By retreating from meaningful judicial review exactly where it matters most, the Court abandons transgender children and their families to political whims. In sadness, I dissent.' Ella, from Los Angeles gave us a call to share how her mom and other mothers of trans children are organizing. Here's Ella. Ella: My mother, I don't know that she would personally call herself an activist, but her and a bunch of moms from greater Los Angeles who have trans children are currently working on a massive spreadsheet of essentially hundreds and hundreds of trans resources. They're trying to find tips about possible laws, talking to lawyers, and have created a really incredible and powerful network of support. I think it's really moving the lengths that these women are going for their children. Something that I cling to when I think of how scary a lot of these times are. SM: Thanks for sharing, Ella. That does it for this episode of The Intercept Briefing. We want to hear from you. Share your story with us at 530-POD-CAST. That's 530-763-2278. You can also email us at podcasts at This episode was produced by Truc Nguyen. Laura Flynn is our Supervising Producer. Sumi Aggarwal is our executive producer. Ben Muessig is our editor-in-chief. Chelsey B. Coombs is our social and video producer. Fei Liu is our product and design manager. Nara Shin is our copy editor. Will Stanton mixed our show. Legal review by David Bralow. Slip Stream provided our theme music. You can support our work at Your donation, no matter the amount, makes a real difference. If you haven't already, please subscribe to The Intercept Briefing wherever you listen to podcasts. And tell all of your friends about us, and better yet, leave us a rating or a review to help other listeners find us. Until next time, I'm Shawn Musgrave. Thanks for listening.
The Intercept
11-07-2025
- Politics
- The Intercept
The Great American Heist You're Paying For
On the Fourth of July, President Donald Trump signed into law a bill that constitutes one of the largest transfers of wealth in history — taking money away from working people and giving it to the nation's elite. The bill is the culmination of years of giveaways that have allowed corporations and billionaires to tighten their grip on the government. The law triples the budget for Immigration and Customs Enforcement, slashes taxes for the most wealthy, and pays for it all by cutting health care for as many as 20 million people and gutting funding for public education and meals for school children. ' The reconciliation process goes hand-in-hand with all the executive orders that we've been seeing,' says Rep. Summer Lee, D-Pa. 'It goes hand-in-hand with all of the different things that DOGE was pretending to uncover. It goes hand-in-hand with so much of Project 2025. So this is all just one kind of super villain packed into this — what they call this one big bill — that's like thousands of pages.' This week on The Intercept Briefing, Lee speaks to host Akela Lacy about what Democrats are doing to meet the moment and how they can break through Republican messaging on the bill. ' Democrats are screaming into a void,' Lee says. 'The reality is that we have been talking about Medicaid, and it's very hard to break through in a 24-hour news cycle and this big bubble where we are in a sea of red coverage, conservative media, conservative narratives, disinformation, misinformation. And to break through in that moment takes more than just us.' At the heart of it all is one core problem: the power of money in politics, Lee says. She introduced a bill to ban super PACs, the kind of groups that helped elect Trump and have pushed Democrats to the right. ' You cannot have a democracy and super PACs,' Lee says. 'If you are able to influence and shape the politics, shape information — what information gets out, which information doesn't — because you have more money, then we don't have a level playing field.' Lee knows the power of super PACs firsthand. She was first elected in 2022, even after the super PAC for the American Israel Public Affairs Committee, or AIPAC, spent millions of dollars against her. 'We have to decide: Do we want a democracy, or do we want a system where, if somebody gets on our nerves, we can just unleash the super PAC and have plausible deniability?' It's not just the Israel lobby, Lee says. Money in politics is at the root of intractable fights against the biggest issues of our time. 'Why can't people be housed in the communities that they call home without spending over half of their salary? Why can't we raise the minimum wage? Why can't we correct course on the climate crisis? Why can't we do any of those things? If you go back and peel even just one layer back on all of those questions, the answer is the same each time. It is money in politics,' Lee says. 'So if money in politics is not your number one issue, it ought to be.' You can hear the full conversation of The Intercept Briefing on Apple Podcasts, Spotify, or wherever you listen.
The Intercept
28-06-2025
- Politics
- The Intercept
Who's the Real Bully of the Middle East?
A tenuous ceasefire between Israel and Iran announced Monday appears to be holding. President Donald Trump made the announcement after unilaterally dragging the U.S. into the conflict and authorizing strikes on three Iranian nuclear sites using 30,000-pound bunker busters. Israel attacked Iran on June 13, just days before Iran and the U.S. were set to resume talks in Oman over the country's nuclear enrichment program. ' You don't have to be anti-war to understand that diplomacy in this case would've been better,' said Hooman Majd, an Iranian American writer and the author of three books on Iran. Majd is a contributor to NBC News and covered the 2015 Iran deal for the network. This week on The Intercept Briefing, Majd joins host Akela Lacy to discuss what's left of the path to diplomacy after years of sabotage, from Israel's aggressive military posture to Trump's withdrawal from the 2015 nuclear deal. The deal, formally known as the Joint Comprehensive Plan of Action, aimed to stop Iran from pursuing nuclear weapons development. Majd says that the incentive structure of the deal included increasing transparency, access, and inspections of Iran's nuclear sites and reintegrating the country back into the global economy: What 'Obama recognized was, 'Look, if you guys make this deal with us, your incentive to not build a bomb is very clear. … Inflation will go down. Your people will be happier. The economy won't be suffering the way it is. Sanctions will be lifted. You'll make money from oil sales. We'll have international companies coming and investing in Iran.' In 2018, during his first term, Trump pulled out of the agreement and now, after authorizing military strikes, has obliterated what little trust remained. 'The problem here is that with the Trump administration having once withdrawn from the nuclear deal that was working, and having now agreed to Israel attacking Iran, and then attacking Iran itself — there's no trust in diplomacy anymore on the Iranian side, and that's understandable,' says Hooman. Trump is reportedly set to resume talks with Iran next week. But will the ceasefire hold — given that Israel has repeatedly broken its own truces with other countries, and Trump's own volatility? Is a diplomatic solution still possible? Majd says it may take leaning more into Trump's personal ambitions, 'The only way it could be over, and this is unlikely, is that the U.S. under President Trump makes a deal that makes Mr. Trump, very happy, puts him along the path to his Nobel Peace Prize. And he, who's the only one right now, can prevent Israel from attacking Iran again.' You can hear the full conversation of The Intercept Briefing on Apple Podcasts, Spotify, or wherever you listen.
The Intercept
20-06-2025
- Politics
- The Intercept
The Disinformation Machine After a Murder
In the wake of the political assassination of Minnesota lawmaker Melissa Hortman and her husband, prominent right-wing figures moved quickly to assign blame. Utah Sen. Mike Lee pinned the killings on 'Marxism.' Elon Musk pointed to the 'far left.' Donald Trump Jr., the president's son, said it 'seems to be a leftist.' But the facts quickly told a different story: The suspect, 57-year-old Vance Boelter is a Trump supporter who held radical anti-abortion views. 'There's an entire right-wing media machine aimed at pushing disinformation around breaking news events and specifically attributing violence to the left,' says Taylor Lorenz, independent journalist and author of 'Extremely Online: The Untold Story of Fame, Influence, and Power on the Internet.' 'You see this over and over and over again, no matter who is perpetrating the violence.' 'The reality is that the vast overwhelming majority of political violence in recent years has come from the right,' adds Akela Lacy, The Intercept's senior politics reporter. 'It basically treats that fact as if it's not real, as if it doesn't exist,' she says — a dynamic that then fails to address the root causes. This week on The Intercept Briefing, host Jordan Uhl talks with Lorenz and Lacy about how online disinformation is distorting public understanding of major events — from political violence to immigration to potential war with Iran. In this chaos-driven ecosystem, the right — and Trump especially — know how to thrive. 'There are these right-wing influencer networks that exist to amplify misinformation and shape narratives online,' says Lorenz. 'A lot of them coordinate, literally directly coordinate through group chats,' she explains. 'They receive messaging directly from leaders in the Republican Party that they immediately disseminate.' That messaging loop reinforces itself — seeping into mainstream culture, dominating social media, and driving Trump's policies. Lacy points to a striking example: Democratic Sen. Tina Smith from Minnesota confronting Lee over his false claim that the shooter was a Marxist, and his apparent surprise at being held accountable. ' There's no reason that a sitting U.S. senator is spreading these lies, should not expect to be confronted by his colleagues over something like this. And that says volumes about the environment on the Hill,' says Lacy. But this right-wing narrative war doesn't work without help to boost their legitimacy. 'These manufactured outrage campaigns are not successful unless they're laundered by the traditional media,' says Lorenz. 'If the New York Times or the BBC or NPR — which is one of the worst — don't launder those campaigns and pick those campaigns up, they kind of don't go anywhere.' You can hear the full conversation of The Intercept Briefing on Apple Podcasts, Spotify, or wherever you listen.
