We Need to Protect College Sports from Ted Cruz

In a 7-2 ruling, the Supreme Court rejected Donald Trump’s attempts to use the US Postal Service to manipulate the upcoming midterm election. The case was on the court’s shadow docket, so the justices in the majority didn’t bother to explain themselves. Alleged attempted rapist Brett Kavanaugh did offer a one-paragraph concurrence in which he argued that the Postal Service has the authority to implement Trump’s voter-suppression rules but that we are too close to the election for the rules to be changed. Justice Samuel Alito dissented, joined by Clarence Thomas. Alito argued, as he often does, that Trump should essentially be allowed to do whatever he wants to accomplish his goals.

I must point out that Thomas and Alito have the most direct interest in Republicans’ winning the midterms and maintaining control of the Senate. Their ability to retire in 2027 or 2028, under a Republican president, is directly tied to Republicans’ winning in November. I’m not exactly saying that their personal retirement planning influenced their opinions in this case, but that’s only because their extremist views of executive power happen to align perfectly with their retirement planning in this situation.

Despite their objections, this is a win. When the Supreme Court has ruled against Trump in the past, it’s usually with a wink and a nod toward how he might win the same case in the future. In this case, the court foreclosed Trump’s chance to use the Postal Service to limit mail-in voting and rig this election—and while Kavanaugh tried to throw Trump a bone for 2028, it does not appear that John Roberts or Amy Coney Barrett are interested in these particular shenanigans. The court did the right thing, and that happens rarely enough that it is worth acknowledging.

Trump, as is his wont, took the loss with the grace of a mob boss who believes the cops he’s got on the take have betrayed him. He criticized the justices he appointed to the court (Kavanaugh, Barrett, and Neil Gorsuch, who all voted to protect mail-in voting) by writing on social media, “These are not the people I interviewed to serve on the United States Supreme Court,” and raging that the Supreme Court lacks the “courage” to “save America.” Ironically, I generally agree with Trump that the court lacks the courage to save America from him, but in this case Roberts seemed to find his inner Mike Pence and do the absolute bare minimum.

I assume Trump and his acolytes are busy planning a counterattack. Having failed to stop the ballots from being mailed, I imagine the next thing Trump will do is try to stop mailed ballots from being counted. It’s always the counting of votes that really bothers him anyway.

I expect we’ll all be back in front of the Supreme Court this November, waiting for them to tell us whether or not our votes matter.

The Bad and the Ugly

• Dick Durbin said that Democrats should not expand the Supreme Court or refuse to seat Trump nominees to the court should Dems win control of the Senate. In related news: Dick Durbin is retiring at the end of the year, so we are very close to the glorious time when he can no longer force the Democrats to repeatedly fail.
• Trump says that AI doesn’t need “guardrails” and called AI warnings a “hoax.” If I were writing this movie, I’d have my protagonist standing before the evil AI superintelligence, about to destroy it, but then Claude would start playing a bunch of Trump clips and saying, “Do you really want more… of this?” And then my hero would just shrug, put down their water gun, and slink out of the server room, leaving the AI free to complete its takeover of humanity.
• The family of a woman who died because she was denied an abortion is suing the state of Texas and its outgoing attorney general, Ken Paxton. I highlight this case not because I think the family has a great chance of winning but to remind people that women are literally dying because of the Supreme Court.
• Bo French, a Republican running for Texas railroad commissioner, is so racist he’s lost Karl Rove.
• The Department of Justice sued the city of San Jose, California, over what the DOJ calls “exorbitant” fees to get a conceal-carry license. I’m surprisingly sympathetic to the DOJ’s case, because I think making it so that only rich people can carry concealed weapons is probably very bad. However, I don’t think this is a Second Amendment issue. A high license fee has nothing to do with the right of a well-regulated militia to bear arms. If the ammosexuals could get their minds out of the barrel chamber for once, they’d see that this is a 14th Amendment, substantive due-process issue. As long as we’re going to pretend that people have a right to carry concealed firearms (they don’t), that “right” should not be based on their inability to pay.

Inspired Takes

• Kash Patel defended bestiality in front of Congress this week. Well, no, he defended the “victims” of bestaility. Sorry, no, that’s not right either, because the victims of bestaility are, you know, THE BEASTS, while Patel defended the human people who abuse animals in this particular way, or were “forced” to abuse animals in this way by people engaged in human trafficking. So… yeah, I guess he defended bestiality this week. I’ll let Joan Walsh in The Nation explain further.
• Macklemore has absolutely dominated the celebrity news cycle this week by standing up for Palestine, getting kicked off Ed Sheeran’s tour because of it, still standing up for Palestine, and making Patriots owner Bob Kraft look like a fascist and Sheeran like a coward. Dave Zirin has an article about it in The Nation.

Worst Argument of the Week

Law professor Noah Feldman took to Instagram and TikTok to crawl all the way up Kavanaugh’s ass and offer a defense of the man more pathetic than anything we might have seen from Tobin and Squee. Feldman argued that Kavanaugh has been essentially forced to become a hardcore conservative on the Supreme Court because the left was really, really mean to him during his confirmation hearings and won’t welcome him back. Since Kavanaugh is desperate to be liked, Feldman argues, he’s had no choice but to rule with the fascist policies of the Trump administration so he can still have friends in the cafeteria or something.

I’m paraphrasing Feldman a bit, but only a bit. Here’s the direct quote from Feldman’s substack (emphasis in the original):

Justice Kavanaugh is a social person, he needs friends. But once liberals had turned against him, he really couldn’t afford to lose conservatives, because then he would have been entirely friendless—a situation not dissimilar to that experienced by Chief Justice John Roberts.

And so, as a result of the confirmation hearings, I think Kavanaugh ended up in a position where he was just forced into the conservative wing of the Court.

This read on Kavanaugh is diabolical. And I say that as a person who agrees that Kavanaugh is desperate to be liked. But to suggest that the man had no choice but to turn to fascism to find friends is one of the most persistent media lies we’ve been told throughout the Trump era. People who go to the Trump side are not forced into it. Germany did not have no choice but to turn to Nazism because France was mean to it. People have myriad options to deal with rejection, yet some of them choose evil.

Understanding that systemic factors lead people into choosing facism, racism, and authoritarianism has value, but Feldman isn’t offering an analysis of those factors. He’s not offering an analysis of why privileged white boys choose extremism. Instead, he’s offering an apologia for why poor little Brett Kavanaugh does bad things. It’s a “hurt people hurt people” type of analysis.

Except Feldman also glosses over why people were mean to Brett Kavanaugh in the first place. He allegedly tried to rape somebody! Liberals and moderates did not reject Kavanaugh because they disagreed with his jurisprudence; they rejected him because they believed he tried to sexually assault somebody and lied about it. Kavanaugh is not some abused rich boy; Kavanaugh is thought to be the abuser.

Not only is Feldman engaging in bad armchair psychotherapy; he’s also ignoring the extensive  political and professional history of the man. Kavanaugh is a dude who cut his teeth under Ken Starr. He’s always been authoritarian-curious and believed in the unitary executive theory. He’s a Christofascist extremist who is more than happy to take rights away from women and the LGBTQ community. He’s in favor of public bribery, and thinks racial profiling is no big deal. He was never going to be a “moderate.” He was never going to get within spitting distance of Sandra Day O’Connor or Anthony Kennedy, because those Republicans actually sought moderate rulings. Kavanaugh, by contrast, only ever wanted to sound moderate while forcing his extremist positions down everybody else’s throat. Which is a jurisprudential philosophy that seems to me to extend to his personal life.

Feldman’s unwillingness to deal with the issue at the heart of the Kavanaugh confirmation hearings leads to this completely disgusting conclusion: “But for Kavanaugh to moderate would require a kind of political shift in which people on the center and the left were willing to welcome him into their circles and re-engage him on intellectual and constitutional issues.”

No. No I will not reengage with this alleged attempted rapist on an intellectual and constitutional level, and fuck you for asking. Kavanaugh will never be respected by decent people (much less “liked”), and to like or respect Kavanaugh is a sign of one’s own personal indecency.

In News Unrelated to the Current Chaos
The Protect College Sports Act is a bill proposed by Senator Ted Cruz aimed at regulating college sports. It’s being sold mainly as a response to upheaval caused, more or less, by colleges and universities’ finally being forced to pay student-athletes some portion of the billions of dollars they generate for their schools. The bill enjoys some bipartisan support (Washington State Democrat Maria Cantwell is a cosponsor), and major college football figures have come out in favor of it.

You don’t need to follow or care about college football to know that anything Ted Cruz is a champion of is probably a very bad thing. The Protect College Sports Act is one of the most anti-labor bills proposed by this Congress, and Democrats should be ashamed of supporting it.

I know that for a certain kind of person it is difficult to think of college football players as “labor.” But they are. And yet college football players have no ability to collectively bargain. Courts have had to order colleges to pay their athletes, and then courts have had to order colleges to let their athletes leave to go to other schools. Since the New Deal, few other labor forces have had their hands tied as much as college athletes, and the Protect College Sports Act aims, first and foremost, to take away the few labor protections that do exist. The bill places a limit on the amount of money schools can pay their athletes and restricts athletes’ ability to transfer freely between schools.

It must be noted that college football players are predominantly Black, while college football coaches are overwhelmingly white. It  must also be noted that, in most states, the head football coach for the biggest public university is the highest-paid public official in that state. The college football coach usually gets paid much more than, say, the head of the school or the governor of the state. Yet the Protect College Sports Act places no limit on how much coaches can be paid, or when coaches can leave for better opportunities (or just more money) at another school.

That alone should make Democrats revolt at this bill. But there’s another horrible thing it would do: severely harm the ability of women athletes to be paid anything at all. The bill seeks to cap the amount of money a school can spend on student athletes at $20 million. That might sound like a lot, but it’s not, especially given the revenue college sports generates. If there is a $20 million cap for the whole school, most schools will spend every available dollar on men’s college football players. Most schools will spend a million dollars on the backup quarterback than spread a million dollars around the entire women’s soccer team.

In the current uncapped market, we are seeing a lot of schools spend money on women’s sports—not nearly as much as they spend on college football, but not zero. We see schools paying women athletes, especially in soccer, softball, and volleyball. All of that money will likely go away if the Protect College Sports Act gets passed.

It will all go away until the (inevitable) Title IX lawsuit, at least. But I don’t know if the current Supreme Court will uphold Title IX in this context. And if it does, which it should, that would mean less money for the labor of the high-revenue college sports.

All of the athletes, women and men, lose under this bill, and they can’t even collectively bargain to put themselves in a better position. I get why Republicans want this bill to pass: Republicans always hate labor, and particularly hate Black or women labor getting their fair share of the revenue. But this bill should be a total nonstarter for the Democratic Party.

College sports need to be protected from Ted Cruz. How can Democrats not see that?

***

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