General

Posts that strictly do not fit in any category will be thrown here. When you write a post, ensure to choose a category

Is it safe to vote in person? Experts say yes — with a few conditions.

People voting at an indoor polling location.

Public health experts say it should be possible to vote safely during the Covid-19 pandemic. | Kamil Krzaczynski/AFP via Getty Images

A brief guide to voting safely in person.

Everybody should have a plan to vote. And if you’ve considered leaving your house to go to the polls, you should know: Voting in person is relatively safe even amid the Covid-19 pandemic.

In fact, according to public health experts, it is roughly as risky as going to the grocery store, something Americans still do regularly.

The coronavirus has presented the United States with a daunting logistical challenge as the country attempts to conduct a presidential election in the middle of an infectious disease outbreak. Not only are states having to figure out how to distribute and collect an unprecedented number of mail-in ballots and create safe places for people to vote in person, Americans are facing a stressful question: Is it safe to go vote?

The answer, according to three public health experts I consulted, is yes — with some conditions.

“I think it’s relatively low risk, probably around going to a grocery store,” Amesh Adalja, a senior scholar at the Johns Hopkins Center for Health Security, told me. “In general, it’s an activity that’s amenable to social distancing. … In general, I don’t think it’s a major risk.”

Kumi Smith, an epidemiology professor at the University of Minnesota, told me the same thing. “I consider voting to be relatively safe,” adding: “but as with all activities, people should be making risk/benefit calculations for themselves.”

To Smith’s point, this is an individual decision. Some people might prefer to be risk averse and opt for voting by mail. One way to split the difference is to vote early when the crowds are usually smaller.

But the point is, people have options and, if they choose to vote in person for whatever reason, they should be able to do it safely.

“Bottom line? If voting in person is important to you or is your only option, you can do so relatively safely,” Jen Kates, director of global health and HIV policy at the Kaiser Family Foundation, said.

Here are a few things to keep in mind.

Take simple precautions to protect yourself and others

Voters might want to start by taking stock of the Covid-19 safety protocols their polling place is following, experts said. That could help them in making a decision about voting early versus voting on Election Day.

“Voting locations should implement rules about masking and social distancing,” Smith said. “Even more ideally, they will have other structural measures in place like physical barriers, one-way traffic lanes, or provision of hand sanitizer.”

Waiting in line outside would also be ideal, according to Kates, and some polling locations provide updates on wait times that people could use to try to avoid the busiest times of the day.

When people actually go to vote, they should take all the same precautions that they should take anywhere they go: Wear a mask. Keep 6 feet of distance from other people. Wash your hands or use hand sanitizer liberally.

“With these conditions, it is relatively low risk,” Kates said. Adalja agreed: “If you go to a polling place, as long as you’re wearing a face covering or washing your hands, I think this is a manageable risk.”

It’s a good idea, though, to be prepared for the unexpected.

“It’s also always good to have a plan in place in case the less expected occurs, like finding yourself standing in line next to someone chatty who won’t respect your distance,” Smith said. “Or longer wait times and possible exposure to the elements.”

Voting safely should be doable. We’ve already done it.

The other good news is we aren’t just guessing about whether voting is relatively safe. Elections have been held during the Covid-19 pandemic and there isn’t much evidence that they’ve led to major new clusters of cases.

“I haven’t heard of any major outbreaks that have been linked to voting,” Adalja said.

The Wisconsin primary election in April was closely watched for possible transmission after the Republican-controlled state supreme court blocked a plan by Democratic Gov. Tony Evers to postpone the election for two months.

Several studies were conducted trying to assess any increased Covid-19 spread after the primary election. Most have found no effect from the election (though there was at least one exception), and the most authoritative study, from researchers at the CDC and the city of Milwaukee’s health department, concluded that there was “no clear increase” in coronavirus cases after the primary.

Importantly, that report credited the mitigation strategies taken by polling locations for their apparent success in containing Covid-19.

This is not to say there is no risk at all: There were a few dozen confirmed cases linked to people who voted in Wisconsin or worked at a voting location. But all risk is relative in the time of coronavirus, and voting can be made more safe with some simple harm reduction.

Make your own risk assessment about voting in person

How to vote is a decision for each person to make. Every state has its own election laws, so check out resources like Vote.org to make sure you know the rules in your state and your voting options.

Then, it’s worth taking into consideration your own risk tolerance. No matter what, voting can be done safely, but some options are safer than others.

For the people who are more vulnerable to Covid-19 or who are often in contact with more at-risk populations, they might want to minimize their risk of exposure. Other people might have a higher risk tolerance. (As an example: Adalja told me that he himself had a pretty high tolerance for risk and he would have no hesitation about voting in person.)

Voting by mail is probably the safest option, from a public health perspective, and millions of people have already done so this year. But whether it’s simply too late for you to vote by mail or you prefer to vote in person to eliminate the possibility of any mistakes in your ballot being processed, you can vote safely in person.

Here is another way to think about risk: Adalja said that he was much more worried about Covid-19 spreading because people are holding gatherings indoors — Halloween parties, for example — than he was worried about transmission when people vote.

The coronavirus doesn’t spread from fleeting contact. The rule is you need to be within 6 feet of a person for more than 15 minutes to be considered at risk of exposure.

“Most of that risk can be removed pretty easily, with a little bit of foresight,” Adalja said.

As Vox’s Ezra Klein wrote this week, “It’s the most important election in our lifetime, and it always will be.” Covid-19 has been an unexpected and unwelcome wrinkle in the 2020 race. But it shouldn’t stop Americans from participating in the democratic process.

Just be smart to stay safe.

This story appears in VoxCare, a newsletter from Vox on the latest twists and turns in America’s health care debate. Sign up to get VoxCare in your inbox along with more health care stats and news.


Help keep Vox free for all

Millions turn to Vox each month to understand what’s happening in the news, from the coronavirus crisis to a racial reckoning to what is, quite possibly, the most consequential presidential election of our lifetimes. Our mission has never been more vital than it is in this moment: to empower you through understanding. But our distinctive brand of explanatory journalism takes resources. Even when the economy and the news advertising market recovers, your support will be a critical part of sustaining our resource-intensive work. If you have already contributed, thank you. If you haven’t, please consider helping everyone make sense of an increasingly chaotic world: Contribute today from as little as $3.

9 ways to reform the Supreme Court besides court-packing

Supreme Court nominee Judge Amy Coney Barrett taps on her microphone during technical difficulties while testifying before the Senate Judiciary Committee. | Anna Moneymaker-Pool/Getty Images

The Supreme Court threatens American democracy. Here’s how to stop it.

Republicans are poised to gain a 6-3 majority on the Supreme Court, something that will enable any five of the Republican-appointed justices to strike down policies supported by Democrats.

If Democrats take back the White House and Congress, however, they have several potent tools that they can use to defend against a 6-3 Court. The most potent is court-packing: add enough seats to the Supreme Court to overwhelm the Court’s current majority, and then fill those seats with judges who support voting rights and are not inclined to strike down progressive legislation.

Although the Constitution provides that there must be a Supreme Court, it does not say how many justices shall serve on that Court. Over the course of American history, the Court has had as few as five seats and as many as 10. President Franklin Roosevelt proposed increasing the number of seats to 15 back in 1937 — although that proposal proved unpopular, and it died in Congress in no small part because the Supreme Court backed away from several previous decisions that undermined the New Deal.

Even if Democrats crush the 2020 election, however, it’s far from clear that they will have the votes to pack the Court. Though Democratic presidential nominee Joe Biden hasn’t ruled out adding seats to the Court, he’s said that he’s “not a fan of court-packing.” And packing the Court brings considerable risks — the biggest is that Republicans could retaliate by adding even more justices if they regain control of the elected branches.

If Democrats refuse to pack the Court, they still have other, less potent options. They run the gamut, from rebalancing the Court with Republicans, Democrats, and moderates to passing legislation to override Court decisions to the more drastic step of states simply refusing to obey certain rulings.

Many of the ideas laid out below are radical. So it’s worth taking stock of why such radical ideas need to be considered at all. Simply put, the American system of government is not producing democratic results. And it’s likely to get much worse if the Supreme Court has a 6-3 Republican majority.

Republicans owe their majority on the Supreme Court to our failing democracy. In 2012, President Obama won reelection by a comfortable margin. However, his fellow Democrats lost control of the Senate in the 2014 midterms, a testament to Senate malapportionment. Republicans in the Senate that blocked Obama Supreme Court nominee Merrick Garland’s confirmation in 2016 represented about 20 million fewer people than their Democratic counterparts.

Since then, Donald Trump lost the popular vote in 2016 and Republicans have hung on to the Senate. The first Supreme Court justice in American history to be nominated by a president who lost the popular vote and confirmed by a bloc of senators who represent less than half of the country is Trump’s first appointee, Neil Gorsuch. The second is Trump’s second appointee, Brett Kavanaugh. And the third is likely to be Trump nominee Amy Coney Barrett.

The conservative Supreme Court majority is likely to further entrench Republican rule. The Court weakened much of the Voting Rights Act, the principal law forbidding racist voter suppression, in Shelby County v. Holder (2013) and in Abbott v. Perez (2018). This term, it plans to hear a new voting rights case that could potentially render the Voting Rights Act little more than an empty husk.

And the anti-democratic threat goes beyond voting decisions. The Court is the one unelected branch of government, but it has the power to decide who receives potentially lifesaving health care and who is denied such care. It can veto our efforts to protect the environment, give its blessing to discrimination, and even decide who we are allowed to marry.

Many of the following proposals seek to weaken the Supreme Court — and that might be the most important pro-democracy reform that America could enact. A party that wins a presidential race should get to govern for four years, not for 40. But, in our current system, a president who is lucky enough to fill enough Supreme Court seats can continue to shape our nation’s policy long after they are gone.

Ways to change the makeup of the Supreme Court without giving a clear advantage to one party

Assuming that the next Congress does not have the votes to simply add new seats to the Supreme Court and let a Democratic president fill them, Congress still has several options that could change the makeup of the Court in ways that are less overtly partisan.

1) A “balanced” court

One of the leading alternatives to simply adding and filling new seats on the Court with Democratic judges is still a form of court-packing. But the aim is to create a politically balanced Court where neither party dominates.

In a 2019 paper, law professors Dan Epps and Ganesh Sitaraman proposed a 15-justice Court made up of five Democrats, five Republicans, and five justices chosen by the other 10. The idea behind this proposal, which Pete Buttigieg featured during his bid for the Democratic presidential nomination, is that the balance of power on the Supreme Court would be held by moderate judges acceptable to both political parties.

There are a number of concerns about this proposal. One is that it is likely to be declared unconstitutional. The Constitution gives the president the power to appoint new justices; it does not give that power to a panel of 10 other justices.

A more fundamental problem is that any attempt at court-packing, even an attempt that installs a centrist Supreme Court, is likely to enrage Republicans and invite retaliation if Republicans regain control of the government. And there’s no guarantee that a centrist Court will overrule the Roberts Court’s previous decisions undercutting voting rights. Democrats could wind up triggering all the downsides of packing the Court, without gaining the benefits of a more democratic system.

That said, if the alternative to a balanced court controlled by moderates is a 15-justice Court with a Democratic supermajority, perhaps Republicans will be willing to negotiate a compromise. And a balanced Court proposal similar to the one offered by Epps and Sitaraman could potentially be that compromise.

2) The “Supreme Court lottery”

A separate proposal from Epps and Sitaraman would transform the Supreme Court from a permanent panel of nine justices to an ever-changing panel of judges. These judges would briefly rotate onto the Supreme Court before returning to their regular job on a federal appeals court.

The basic idea is that each of the approximately 180 active federal appeals court judges would be appointed as associate justices of the Supreme Court. Then, every two weeks, nine of these judges would be randomly selected to serve on the nation’s highest Court. After two more weeks, a different panel of nine would be selected. (In this system, the current justices could also be eligible to rotate onto a temporary panel of nine, but they would no longer sit permanently on that panel.)

It may seem random, but this is more or less how federal appeals courts already operate. Most appeals court cases are heard by randomly selected panels of three judges, although a larger panel consisting of all the active judges on the court will occasionally hear exceptional cases.

One problem with this proposed lottery system from a Democratic (and democratic) perspective is that the rotating Supreme Court panel would, at least in the short term, more often than not be controlled by Republicans who may share the current Court’s hostility toward voting rights. There are currently 179 active appeals court judges in the United States, and 99 of them were appointed by a Republican president.

And there’s no guarantee that a panel of anti-democratic radicals won’t be randomly chosen to hear a crucial voting rights case — or that such a panel won’t sit during a disputed election.

In the long term, however, a rotating Supreme Court could, in Epps and Sitaraman’s words, “depoliticize the appointments process by making confirmations more numerous and less consequential.” And it would mean that individual justices “would no longer have the ability to shape constitutional law for a generation by strategically timing their retirement” so that their seat is filled by a president of their same party.

3) Term limits

Another way to prevent justices from “strategically timing their retirement” is term limits.

The leading term limits proposal, which has at times enjoyed support from prominent Democrats and Republicans, would require each justice to step down after 18 years. Reps. Ro Khanna (D-CA), Don Beyer (D-VA), and Joe Kennedy III (D-MA) recently introduced legislation that would implement 18-year term limits. Terms would be staggered so that a justice steps down every two years, meaning that two justices would be replaced during each presidential term — although whoever is president when this proposal is implemented might get to replace more justices depending on how Congress decided to manage the transition to the new system.

If such a proposal were implemented on the first day of a Biden presidency, Biden might immediately get to replace Justices Clarence Thomas and Stephen Breyer, both of whom have served more than 18 years. The next justice in line to leave the Court would be Chief Justice John Roberts.

It is far from clear, however, that term limits may be imposed on a sitting justice. The Constitution provides that federal judges “shall hold their offices during good behaviour,” and the particular “office” held by each of the current justices is a seat on the Supreme Court for life. (Future justices could probably be term-limited, on the theory that they are being confirmed to a different “office” that only allows them to sit on the nation’s highest Court for 18 years before they are rotated onto a lower court.)

Moreover, even if there is a constitutional way to impose term limits on sitting justices — Yale Law School’s Jack Balkin has a clever proposal to achieve this goal — the question of whether sitting members of the Supreme Court can be subjected to term limits would be decided by, well, the Supreme Court. And it’s unlikely that a majority of sitting justices would willingly agree to term limits.

Ways to weaken the Supreme Court

As an alternative to changing the personnel on the Supreme Court — or, perhaps, in addition to changing the personnel of the Court — Congress might also enact several reforms that seek to diminish the Supreme Court’s nearly unchecked power to hand down binding interpretations of the Constitution.

The president may also be able to diminish the Court’s authority by refusing to enforce particularly egregious Supreme Court decisions.

4) Jurisdiction stripping

The Constitution gives the Supreme Court power to hear most federal cases on appeal from a lower court, but it may only assert jurisdiction over cases “with such exceptions, and under such regulations as the Congress shall make.” Accordingly, Congress has at least some power to tell the Supreme Court that it is not allowed to hear certain cases.

But it’s not entirely clear how much power Congress has to limit the Court’s power to hear particular cases. Congress has unlimited power to restrict the jurisdiction of lower federal courts — a power that a Democratic Congress could use to prevent Trump-appointed trial judges from blocking new progressive laws as soon as those laws are enacted. But the Supreme Court’s decisions concerning Congress’s power to limit the high Court’s jurisdiction are not a model of clarity.

In Ex parte McCardle (1868), the Supreme Court held that it did not have jurisdiction over a case, brought by a newspaper publisher who claimed that he was wrongly jailed for publishing attacks on Reconstruction, because Congress enacted a law stripping the Court of jurisdiction to hear this case.

McCardle, however, is an old case. And the opinion in that case does not explain the Court’s reasoning in much detail. In the many years since McCardle, many scholars and at least some justices have argued that Congress’s power to limit the Court’s jurisdiction is not unlimited. Concurring in Felker v. Turpin (1996), for example, Justice David Souter suggested that Congress may only be able to prevent the Court from hearing a particular case if there is some other way that the issue presented by that case could reach the justices.

In any event, there are two closely related problems with this tactic — known as “jurisdiction stripping” — as a solution to a partisan Supreme Court. The first is that the question of whether Congress has the power to enact a particular jurisdiction-stripping law will be decided by the Court itself — so the justices may simply strike down an act of Congress that seeks to limit the Court’s jurisdiction.

The other problem is that most federal statutes do not enforce themselves — they need to be applied to individual parties through court orders. Congress might be able to prevent the Supreme Court from striking down the Voting Rights Act, for example, by stripping the Court of jurisdiction to hear voting rights cases. But if voting rights plaintiffs cannot obtain a court order enforcing the Voting Rights Act, then that law ceases to function.

5) Supermajority voting requirements

In a forthcoming law review article, law professors Ryan Doerfler and Samuel Moyn propose that Congress could require a supermajority of justices to vote to strike down federal laws. This proposal could potentially be implemented in two different ways: Congress could either impose a universal rule requiring a 7-2 majority on the Supreme Court to strike down a federal law, or identify particular laws, such as the Affordable Care Act, which can only be struck down by a supermajority.

Such a law would need to be coupled with provisions stripping the lower courts of the power to strike down such laws, or else judges on the lower courts could potentially block laws that the Supreme Court would be unable to strike down with a bare majority vote.

A supermajority requirement, Doerfler and Moyn argue, “would functionally reallocate decision-making authority to the democratically legitimate branches of government in cases in which a countermajoritarian faction on the Court enjoys only a simple majority.” In effect, the Court’s conservatives would have to convince at least one Democratic appointee to strike down a federal law if Congress imposed a 7-2 supermajority requirement.

This proposal, however, is vulnerable to one of the same problems facing jurisdiction stripping. What happens if a 5-4 Supreme Court strikes down the law imposing a 7-2 supermajority requirement? The result could be a constitutional crisis, as Congress and the Supreme Court would be fundamentally at odds regarding whether particular laws are constitutional, and there would be no clear way to resolve this dispute under the Constitution.

Another problem is that the Supreme Court does not need to declare a federal law unconstitutional in order to sabotage it. If Congress requires a supermajority to strike down the Voting Rights Act, for example, the Court could still interpret the individual provisions of this law so narrowly that they would do very little to protect voting rights.

6) Presidential (or congressional) resistance to the Supreme Court

Abraham Lincoln began his presidency with a broadside against the Supreme Court. Reacting to the Supreme Court’s pro-slavery decision in Dred Scott v. Sandford (1856), Lincoln attacked the very idea that the justices should have the final say on constitutional matters in his first inaugural address.

[I]f the policy of the Government upon vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court, the instant they are made in ordinary litigation between parties in personal actions the people will have ceased to be their own rulers, having to that extent practically resigned their Government into the hands of that eminent tribunal.

Though Lincoln conceded that Dred Scott was binding upon the particular parties to that litigation, he rejected the idea that the president or Congress is bound by the Court’s understanding of the Constitution. The Lincoln administration issued a passport to a Black man, defying Dred Scott’s holding that Black people cannot be citizens. And Lincoln signed legislation banning slavery in the territories, defying Dred Scott’s conclusion that slaves remained slaves even after entering a free territory.

A similar drama nearly played out in the Franklin Roosevelt administration. During Roosevelt’s first term, many contracts contained “gold clauses” requiring debtors to pay back creditors in gold dollars valued at the time when the contract was made. Because of rampant deflation due to the Great Depression, these contracts effectively increased the amount of debt owed under these contracts by as much as 69 percent.

Among other things, these gold clauses drove up the returns railroads owed on their bonds so high that they could have bankrupted most of the railroad industry, potentially shutting down much of the nation’s shipping in the process. And the clauses threatened to ruin homeowners who suddenly owed the equivalent of $1.69 for every dollar they borrowed to buy their house.

Congress declared these gold clauses null and void. But Roosevelt, fearing that the Supreme Court would reinstate the clauses, prepared a speech announcing that he would not obey such a decision. “To stand idly by and to permit the decision of the Supreme Court to be carried through to its logical, inescapable conclusion,” Roosevelt would have said in a speech the Court never forced him to deliver, “would so imperil the economic and political security of this nation that the legislative and executive officers of the Government must look beyond the narrow letter of contractual obligations.”

The theory that each branch of government may decide on its own how to interpret the Constitution, even in defiance of the Supreme Court, is known as “departmentalism.” Under this theory, a president potentially has significant (although not entirely unlimited) power to undermine the judiciary’s determination that a particular law is unconstitutional.

Suppose, for example, that the Supreme Court strikes down the Affordable Care Act. A Democratic president could order the US Marshalls not to enforce this decision. They could order the Treasury to continue to provide subsidies to states and individuals entitled to receive them under Obamacare. And the president could routinely pardon executive branch officials who continue to make these payments, neutralizing a federal law that plausibly could subject these officials to prosecution in a future administration.

Departmentalism would not allow the president to completely neutralize such a Court decision. Lower federal courts would remain bound by the Supreme Court’s decision, so the president would not be able to obtain a court order against states or private insurers who violate their obligations under Obamacare. But departmentalism would, at the very least, allow the president to mitigate the harm created by a decision that would otherwise strip health coverage from tens of millions of Americans.

7) State resistance to the Supreme Court

Just as the executive or legislative branch might resist a Supreme Court decision through departmentalism, states might invoke a theory known as “interposition” to defy a court order.

The history of interposition, which posits that a state may “interpose” its authority between the Supreme Court and its citizens, is not a happy one. In the wake of the Supreme Court’s desegregation decision in Brown v. Board of Education (1954) Southern segregationists relied on interposition to justify defying Brown. Martin Luther King Jr. called out segregationist Alabama Gov. George Wallace, in King’s “I Have a Dream” speech, for “having his lips dripping with the words of ‘interposition’ and ‘nullification.’”

Yet, there are constitutional systems where something similar to interposition exists without this same tainted history. Canada’s Charter of Rights and Freedoms, for example, contains a provision known as the “Notwithstanding Clause,” which allows either the national parliament or a provincial legislature to declare that at least some laws shall operate “notwithstanding” a court decision declaring that the law violates Canada’s Charter — although these overrides automatically expire after five years if they are not renewed.

In the US system, if a state defies a Supreme Court order, the executive branch may use force to enforce that order — think of President Dwight Eisenhower ordering the Army to enforce a desegregation order in Little Rock, Arkansas.

But, as Alexander Hamilton wrote in the Federalist Papers, the judiciary “has no influence over either the sword or the purse” and “must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments.” If the Supreme Court hands down a decision that a state government deems abhorrent, the Court cannot enforce that order if the president decides that it should not be enforced.

Ways to override Supreme Court decisions

As Congress has grown more and more dysfunctional, the Supreme Court has gained a nearly unchecked power to determine the meaning of federal laws. Though Congress lacks the power to overrule a Supreme Court decision interpreting the Constitution, Congress may amend a federal statute if it disagrees with the Court’s reading of that statute.

Yet Congress uses this power far less than it used to, according to a 2012 study by University of California Irvine law professor Rick Hasen. Hasen found that, between 1975 and 1990, Congress enacted “an average of twelve overrides of Supreme Court cases in each two-year Congressional term.” Between 2001 and 2012, by contrast, the number of overrides dwindled to a mere 2.8 per two-year term. (Hasen defines the term “override” to include acts of Congress that “overturned, reversed, or modified a Supreme Court statutory interpretation holding.”)

But there’s no reason why Congress — especially a filibuster-free Congress controlled by a single party — must continue to defer to the Supreme Court.

8) Omnibus legislation overruling past Supreme Court decisions

One model that Congress could follow is the Civil Rights Act of 1991, a bill signed by President George H.W. Bush back when it was still possible to achieve a bipartisan consensus against discrimination.

In its 1988 term, the Supreme Court handed down five decisions that, in the words of one scholar, “substantially eroded Title VII of the Civil Rights Act of 1964,” which prohibits many forms of employment discrimination. Congress enacted the 1991 civil rights bill to overrule, or, in some cases, modify those five decisions.

Similarly, Congress could enact a Civil Rights Act of 2021 that overrides several Supreme Court decisions at once.

This bill could include, for example, provisions tossing out the Supreme Court’s entire forced arbitration jurisprudence, which allows companies to force their workers and customers into a privatized justice system that favors corporate parties. It could overrule decisions weakening the Voting Rights Act. And it could also override less famous decisions such as Vance v. Ball State University (2013), which made it much harder for workers who are sexually harassed by their boss to sue their employer; or Gross v. FBL Financial Services (2009), which weakened protections against age discrimination.

Such an omnibus bill would serve two purposes. It would get rid of Court decisions that weakened laws intended to protect our democracy and halt practices such as discrimination, and it would send a clear message to the justices that there’s a new sheriff in town who is keeping a close eye on them.

9) Expedite legislation seeking to overrule Supreme Court decisions

The Congressional Review Act (CRA) lays out an expedited process that Congress can use to swiftly overrule regulatory decisions by the executive branch. A bill overruling a federal regulation through the CRA still must pass both houses of Congress and be signed by the president, but the CRA’s streamlined process makes it relatively easy for lawmakers who oppose a particular regulation to override it quickly.

In an essay published in the Atlantic, Sitaraman suggests enacting similar legislation allowing Congress to swiftly overrule Supreme Court decisions:

If the Court issued a decision interpreting a statute or regulation, Congress would have 30 days to vote on whether to open a reconsideration process. If Congress voted yes, the speaker of the House, the Senate majority leader, and the minority leaders would appoint a special committee in each chamber (with proportional party membership) to design a legislative fix for the full body to vote on within the next 30 calendar days. The bill would then go to the other house, where it would be voted on within 10 days through a privileged, fast-track process, which would avoid common legislative snags like the filibuster and committee hearings. The president would then sign the law or veto it, as with any ordinary piece of legislation.

Such legislation could create a normalized process whereby Congress routinely reviews the Supreme Court’s decisions and corrects decisions that read federal laws in damaging or implausible ways. It would also act as a complement to an omnibus bill in the vein of the Civil Rights Act of 1991. The omnibus would take care of past decisions that misread federal law, while the review act would prevent new decisions from having much effect.

Democrats will not have much time to decide how to deal with the Supreme Court

Setting aside the more detailed proposals described above, it’s worth noting that Congress has a great deal of power to restrict a Supreme Court that seems determined to undermine democracy.

In its 2020 budget request, for example, the Supreme Court requested $106.8 million in funding from Congress. Congress could if it wanted drastically reduce these funds (with the proviso that the Constitution does not permit Congress to reduce a sitting justice’s salary and benefits).

Similarly, Congress could also impose onerous new duties on the justices. For most of the nation’s history until 1911, Supreme Court justices had to spend at least some of their time “riding circuit” — traveling to various parts of the country to hear ordinary federal cases. Congress could revive this practice. Or it could expand the Court’s (currently very limited) mandatory jurisdiction, forcing it to hear thousands of routine cases involving uncontroversial legal issues.

The point isn’t that Congress should strip the Court of its staff, order the justices to spend half their year flying around to random federal courthouses, or drown them in an ocean of routine appeals. Rather, Congress has tremendous power to fight back against an anti-democratic Supreme Court.

Realistically, however, if Congress wants to prevent the Supreme Court from entrenching its power to veto federal laws and manipulate voting rights, it’s likely to only have a short window in which to do so. Right now, polls show Democrats are favored to win the White House and both houses of Congress, but even if that prediction bears out, Democrats won’t control the elected branches forever.

The biggest risk from a 6-3 Republican Supreme Court is that the conservative justices will bide their time, maybe handing down a few decisions shifting the law marginally rightward, but avoiding anything like a new major attack on the Voting Rights Act until after Republicans gain control of at least one house of Congress.

And once Republicans control at least one veto point, they can halt any effort to rein in Supreme Court decisions that place a thumb on the scales of democracy.

If Democrats do regain control of Congress and the White House, in other words, they may need to make a difficult decision quickly. Even if they dominate the 2020 election, Democrats may have only a two-year window before Republicans regain the House or the Senate.

And once that happens, American democracy will be at the mercy of a 6-3 conservative Court.


Will you help keep Vox free for all?

The United States is in the middle of one of the most consequential presidential elections of our lifetimes. It’s essential that all Americans are able to access clear, concise information on what the outcome of the election could mean for their lives, and the lives of their families and communities. That is our mission at Vox. But our distinctive brand of explanatory journalism takes resources. Even when the economy and the news advertising market recovers, your support will be a critical part of sustaining our resource-intensive work. If you have already contributed, thank you. If you haven’t, please consider helping everyone understand this presidential election: Contribute today from as little as $3.

Lawyers can’t find the parents of 545 migrant children after separation by Trump

A baby and a girl sit among Central American migrants — mostly Hondurans heading in a caravan to the US — as they rest on their way from Ciudad Hidalgo to Tapachula, Chiapas State, Mexico, on January 23, 2020. | Alfredo Estrella/AFP via Getty Images

The tragedy of family separations isn’t over.

Three years after the Trump administration started separating immigrant families arriving on the southern border, lawyers say they still haven’t been able to reach the parents of 545 affected children, according to court documents filed Tuesday night.

Some of the children involved may never see their parents again. Lawyers for the American Civil Liberties Union said that they still cannot find the parents of 283 children despite thorough on-the-ground searches, and don’t expect to be able to reach them by telephone, meaning that the families may never be reunited.

Many of the families involved were separated in 2017, before the Trump administration began separating immigrant families routinely, hoping to deter immigrants from crossing the border without authorization.

The children have been released to sponsors, who are typically family members or friends, but also include foster families. Their parents, two-thirds of whom were deported before a federal judge ordered that they be identified and reunited with their children in 2018, either have not been located or have not been successfully contacted.

The group Justice in Motion is continuing to work to locate the parents in Mexico and Central America, though that has become more difficult amid the pandemic.

“While we have already located many deported parents, there are hundreds more who we are still trying to reach,” the group said in a statement. “It’s an arduous and time-consuming process on a good day.”

The news underscores the devastating long-term effects of the Trump administration’s policy. But even in cases in which lawyers expect to be able to find the parents eventually, families may never fully recover from the long-term psychological harm.

The US government had a policy of separating families — despite officials’ denials

Beginning in mid-2017, the federal government ran a pilot program in El Paso, Texas, under which it began filing criminal charges against anyone who crossed the border without authorization, including parents with minor children — even though many of them intended to seek asylum in the US, which is legal.

Parents were sent to immigration detention to await deportation proceedings. Their children, meanwhile, were sent to separate facilities operated by Department of Health and Human Services’ Office of Refugee Resettlement and, in some cases, released to other family members in the US or to foster homes. (Previous administrations, in most cases, would have simply released the families from detention.)

The Trump administration formalized the policy in May 2018, which it dubbed the “zero tolerance policy.” At least 5,000 families were separated before a California federal court ordered the federal government in June 2018 to reunify the families affected and end the policy.

The federal government, however, neglected to link the children to their parents in its databases, making the reunification process difficult, especially in the hundreds of cases of children who were under the age of 5, including one who was just 4 months old.

Unlike the Trump administration, the Obama administration did not have a policy of separating families, but it did try to detain families together on a wide scale and deport them as quickly as possible during the 2014 migrant crisis. Cecilia Muñoz, director of the Obama administration’s Domestic Policy Council, told the New York Times in 2018 that the administration had briefly considered pursuing family separations but quickly dropped the idea.

“We spent five minutes thinking it through and concluded that it was a bad idea,” she told the Times. “The morality of it was clear — that’s not who we are.”

Senior Trump administration officials, including former Homeland Security Secretary Kirstjen Nielsen, have repeatedly denied that they pursued a policy of family separation. Nielsen told Congress in December 2018 that the administration “never had a policy for family separation.” It was later revealed that she had, in fact, signed a memo greenlighting the practice, which clearly stated that DHS could “permissibly direct the separation of parents or legal guardians and minors held in immigration detention so that the parent or legal guardian can be prosecuted.”

Amid the Covid-19 pandemic, the administration has tried to carry out what immigrant advocates call a new kind of family separation. It pressured parents already detained within the US to voluntarily separate from their children by presenting them with what the administration has called a “binary choice”: Either allow their children to be placed with relatives or a foster family in the US while the parents remain detained, or stay together as a family in indefinite detention and risk contracting the coronavirus.

Family separations carry a long-term cost

The US government has long known the psychological harms associated with separating family members. These harms would only add to the anxiety created by the pandemic as immigrants and their children fight for their release from detention.

Commander Jonathan White, who previously oversaw the government’s program providing care to unaccompanied immigrant children, told Congress that, beginning in February 2017, he had repeatedly warned the officials who concocted the policy that it would likely cause “significant potential for traumatic psychological injury to the child.”

A September 2019 government watchdog report confirmed those effects, finding that immigrant children who entered government custody in 2018 frequently experienced “intense trauma” and those who were “unexpectedly separated from a parent” even more so.

Each child reacts to family separation differently. But psychologists have observed three main kinds of effects: disruptions to their social attachments, increases in their emotional vulnerability, and, in some cases, post-traumatic stress disorder, Lauren Fasig Caldwell, director of the American Psychological Association’s children, youth, and families office, said.

Those symptoms could be short-term or they could persist; they could also not even manifest until a child enters their teen years or adulthood. Any of them could significantly hinder a child’s later success in academics and in the workplace.

Parents who were separated from their children have experienced their own trauma — which may manifest in symptoms similar to those that researchers observe in children — and may not have the mental and emotional capacity to be able to provide what their children need.


Help keep Vox free for all

Millions turn to Vox each month to understand what’s happening in the news, from the coronavirus crisis to a racial reckoning to what is, quite possibly, the most consequential presidential election of our lifetimes. Our mission has never been more vital than it is in this moment: to empower you through understanding. But our distinctive brand of explanatory journalism takes resources. Even when the economy and the news advertising market recovers, your support will be a critical part of sustaining our resource-intensive work. If you have already contributed, thank you. If you haven’t, please consider helping everyone make sense of an increasingly chaotic world: Contribute today from as little as $3.

What Amy Coney Barrett’s confirmation will mean for environmental law and Joe Biden’s climate plan

Supreme Court nominee Judge Amy Coney Barrett testifies before the Senate Judiciary Committee on the third day of her confirmation hearings on Capitol Hill, on October 14, 2020. | Jonathan Ernst/Getty Images

Barrett will increase a majority dedicated to limiting the administrative state.

Amy Coney Barrett’s likely confirmation to the Supreme Court to replace the late Ruth Bader Ginsburg in a Monday Senate vote will add a conservative sixth vote to an already-conservative majority, with potentially far-reaching implications for American law. Barrett’s confirmation will scramble the current distribution of power on the Court, displacing the chief justice as its putative center and pulling it rightward.

Most legal commentators expect that Barrett’s judicial philosophy of originalism and her advocacy of a more “flexible” approach to precedent will make her more likely to vote to overturn precedents like Roe v. Wade. Barrett also believes that judges should interpret statutes in accord with their “original public meaning,” a strict brand of textualism that tends to constrain agency regulatory power.

What can we predict about Barrett’s likely attitude toward environmental regulation, and climate change in particular? Would she vote to overturn Massachusetts v. EPA, the Court’s 2007 landmark holding that the Environmental Protection Agency may regulate greenhouse gases under the Clean Air Act? Would she vote to uphold the Trump administration’s rescission of the Obama-era greenhouse gas standards for the power sector, and its ambitious greenhouse gas and fuel efficiency standards for cars, and uphold the administration’s far weaker rules?

What of the administration’s legal theory that when setting power plant standards, EPA cannot consider grid-wide strategies like substituting natural gas for coal, even though Congress told the agency to use the “best system” of emission reduction? Or the administration’s theory that federal law preempts California from setting its own vehicle greenhouse gas standards, and, separately, that EPA can revoke California’s current waiver to set those standards? Would it be more difficult for a new Biden administration to adopt ambitious greenhouse gas rules with Barrett on the Court?


Bonnie Cash/Getty Images
Supreme Court nominee Judge Amy Coney Barrett leaves after testifying before the Senate Judiciary Committee on the third day of her confirmation hearing on Capitol Hill on October 14, 2020.

Barrett’s record on environmental issues is thin, so her views are a matter of speculation.

Outcomes in particular cases turn on the facts, the administrative record, and the quality of advocacy. Yet it seems fair to say that Barrett’s addition to the high court will cement a trend, already underway, to restrict the modern administrative state. A further tilt of the Court in the direction it is already going — skeptical of expansive regulation, unsympathetic to the idea that agencies should have some room to interpret their statutes broadly to solve new problems, and uninterested in reading statutes with their broader purpose in mind — certainly won’t help the cause of environmental protection or public health.

Taming the government beast

A majority of justices on the Court already are wary of the “behemoth” that is the US administrative state, with the most pronounced antipathy coming from another relatively new addition, Justice Neil Gorsuch, who has argued passionately that agencies must be reined in. To greater or lesser extents, Justices Samuel Alito, Clarence Thomas, Brett Kavanaugh, and Chief Justice John Roberts have all warned of the dangerous accretion of administrative power. (Such views have gained traction in Congress too. In Barrett’s confirmation hearings, Republican Sen. John Kennedy fulminated against the administrative state, calling it a “rogue beast.”)

This attitude, which her record and judicial philosophy suggest Barrett may share, makes it less likely that the Court will defer to administrative agencies like EPA when they pursue expansive regulation.

In theory, the Supreme Court still adheres to the general principle that courts should defer to agency interpretations of vague statutory provisions, providing they are reasonable. Known as Chevron deference, this principle assumes that Congress intends expert agencies to resolve statutory ambiguities in the first instance. But the Court has been taking a narrower view of Chevron — finding that it applies in fewer and fewer instances to a smaller scope of cases, and certainly not in the big cases where the agencies are doing ambitious things.

In particular, the Court is disinclined to give agencies much leeway to apply old statutes to new problems, even when those statutes are broadly worded. The Court increasingly prefers to send questions of major economic and political importance back to Congress for clearer instructions. While sensible-sounding on its face, this approach overlooks the possibility that Congress already did speak, when it gave the agency broad power in the first place.

All of this is to say that even before Barrett’s confirmation, the Court was growing more miserly about deference, and especially skeptical of far-reaching rules with big consequences that rely on new legal interpretations, like the Obama-era Clean Power Plan.

Barrett subscribes to a brand of textualism that looks askance at exertions of agency authority not rooted in explicit statutory text, which seems to align her with the major questions canon. Given the difficulty of passing new legislation, especially in an era of hyperpartisanship, the systematic application of this canon to send matters back to Congress is a one-way ratchet to regulatory stasis.


Mario Tama/Getty Images
Supreme Court Justices Neil Gorsuch (L) and Brett Kavanaugh attend the State of the Union address in the chamber of the US House of Representatives on February 4, 2020.

A majority of the Court also seems open to reviving the “non-delegation” doctrine, a constitutional principle that limits Congress’s ability to grant broad powers to agencies. The Court has not struck down a statute on this basis in 85 years, but just last year, three justices indicated their willingness to do so, and Alito said he would join them if a fifth vote could be found. Barrett, whose constitutional originalism might well align with a strict view of non-delegation, could provide the fifth vote. (So might Kavanaugh, who was not yet seated when the case was argued.)

Barrett’s views on standing seem restrictive. She has authored several opinions denying standing to plaintiffs for lacking a concrete and particularized injury. Her brand of constitutional interpretation and close embrace of Justice Antonin Scalia’s judicial philosophy suggests that she would look more skeptically at permissive standing rules, certainly more than Justice Ginsburg did. For example, a Justice Barrett likely would have sided with the dissent and voted to deny standing to the petitioners in Massachusetts v. EPA.

Raising the bar for standing would make access to courts disproportionately harder for environmental plaintiffs, because they often seek review for widely shared or indirect harms, and frequently ask the court to remedy agency underregulation. By contrast, industry can always get standing for direct economic harms, to air their grievances about overregulation.

Barrett has praised Scalia’s approach to the Affordable Care Act, which he found unconstitutional under the commerce clause. That could spell trouble for certain environmental statutes, like the Endangered Species Act, which has been challenged repeatedly as insufficiently related to interstate commerce. Lower courts consistently have upheld the act, but the Supreme Court has not ruled on its constitutionality. At a minimum, Barrett is expected to endorse Scalia’s narrow view of EPA’s authority over wetlands under the Clean Water Act.

On the particular environmental law cases that people wonder most about, these are my best guesses about the difference Barrett will or won’t make: It is unlikely the Supreme Court will overturn Massachusetts v. EPA, since the Court tends not to overturn precedents about statutory interpretation, although it seems likely that Barrett would have voted differently than Ginsburg did in that case. (And indeed, if Massachusetts were relitigated today, with the Court’s current lineup, it likely would come out the other way.)

But the Court does not need to overrule Massachusetts to cabin EPA. It can simply read EPA’s regulatory power narrowly, as I argued above. Barrett’s vote is not decisive on that score — the Court was headed in that direction already.


Stefani Reynolds/Getty Images
Senate Majority Leader Mitch McConnell wears a protective mask as he stands in an elevator at the US Capitol on October 20, 2020, in Washington, DC.

Barrett’s impact on a Biden climate plan

On the pending litigation over Trump’s regulatory rollbacks, like the power plant and fuel efficiency standards, there are a lot of remaining “ifs.” If Joe Biden wins the presidency, his Justice Department will ask the courts to hold those cases in abeyance until the agencies can reconsider the underlying rules. Presumably, a President Biden would want to reverse the Trump reversals and pursue a more ambitious greenhouse gas regulatory program.

It will be somewhat harder now for a president to use the Clean Air Act aggressively to set climate policy. But even before Barrett’s nomination, it’s not as if the Biden campaign, or the environmental advocacy community, was thinking that the Supreme Court would be a sympathetic forum for far-reaching climate rules.

Even so, there is plenty a Biden administration could accomplish using EPA’s and other agencies’ existing legal authority, just by restoring and strengthening the rules the Trump administration has gutted — for example by setting strong standards for power plant carbon dioxide, methane emissions, fuel efficiency, appliances, and the like. A lot of progress can be made without embracing the riskiest legal positions, because technological advances and market conditions have shown what industry can achieve, which provides a sound basis for ambitious standards.

Biden has pledged to pursue legislation in tandem with using executive power to tackle climate change. There is no question that to achieve his goal of net-zero economy-wide emissions by 2050, Congress will need to legislate.

What if Trump wins?

If President Trump wins reelection, the litigation over EPA’s regulatory rollbacks will play out and could reach the high court. With Barrett’s vote, it is incrementally more likely that the Court would endorse the Trump administration’s cramped view of EPA’s authority to regulate existing power plants. Reversing that decision would then require Congress to amend the Clean Air Act, which the Democrats could do if they retain the House and flip the Senate, especially if they jettison the filibuster rule for legislation, as has been done for judicial appointments. Congress would need a two-thirds vote to override a Trump veto.

It is less clear that the Supreme Court would endorse the Trump administration’s theory that California is preempted from setting vehicle greenhouse gas standards by the energy conservation law that assigns fuel efficiency to the Transportation Department. Preemption cases involve delicate questions of state and federal power, and conservative justices sometimes depart from their strict textual tendencies in resolving them.

The Supreme Court already opined, in Massachusetts v. EPA, that fuel efficiency and greenhouse gas standards are legally distinct and can live harmoniously together — and the Obama administration demonstrated that they could. But if the Court did find California preempted, new legislation would be needed to reverse that holding.

The Court could take an alternative route and uphold EPA’s revocation of California’s waiver on the theory that climate change does not affect California uniquely or create “compelling and extraordinary conditions” in the state. Fixing that decision would not require Congress, though; a new administration could simply issue a new waiver.

Much will turn on how the Court decides these legal questions, if it decides them. Depending on the reasoning, a future president might still have flexibility to reverse course.


John Lamparski/SOPA Images/LightRocket via Getty Images
Demonstrators wearing face masks hold placards calling on Congress to suspend the Supreme Court confirmation process at Freedom Plaza in Washington, DC, on October 17.

In each case, the Court would also evaluate whether the Trump administration’s weaker standards are rational and sufficiently supported by the administrative record. On such questions, a Justice Barrett, along with a majority of the Court, might well reject the rules, which rest on tenuous scientific and economic arguments. Even conservative judges bristle at shoddy agency work, which no one has done more of than the Trump administration. Still, it is not clear that Barrett’s vote would change the outcome in any particular one of these cases.

If Supreme Court nominations are a mood, however, the mood for EPA is grim. In truth, it has been growing grimmer since Gorsuch filled Scalia’s seat and Kavanaugh replaced Justice Anthony Kennedy. The Court, with Barrett as a reliable fifth or sixth vote, is now more likely to take an especially problematic combination of views: a cramped view of agency authority when an agency seeks to regulate; a permissive view of agency authority when an agency seeks to deregulate; a restrictive view of Congress’s power to delegate; a more skeptical view of Congress’s commerce clause power; and a narrower view of constitutional standing. That conservative blend does not bode well for the modern regulatory state — certainly not for environmental regulation.

Justice Ginsburg wrote several important environmental law decisions, including EME Homer, upholding EPA’s innovative market-based strategy to control interstate air pollution, and AEP v. Connecticut, reinforcing EPA’s authority to regulate greenhouse gases under the Clean Air Act. She was not an environmental law hero like Justice William O. Douglas or Justice John Paul Stevens, the author of Massachusetts v. EPA, but she was open to the idea that achieving the broad purposes of environmental law requires EPA to have some flexibility.

We will miss her vote, and her voice. Barrett’s will be very different.

Jody Freeman is the Archibald Cox Professor of Law and director of the Environmental and Energy Law Program at Harvard Law School, and a leading scholar of administrative law and environmental law.


Help keep Vox free for all

Millions turn to Vox each month to understand what’s happening in the news, from the coronavirus crisis to a racial reckoning to what is, quite possibly, the most consequential presidential election of our lifetimes. Our mission has never been more vital than it is in this moment: to empower you through understanding. But our distinctive brand of explanatory journalism takes resources. Even when the economy and the news advertising market recovers, your support will be a critical part of sustaining our resource-intensive work. If you have already contributed, thank you. If you haven’t, please consider helping everyone make sense of an increasingly chaotic world: Contribute today from as little as $3.

The exhausting failure of Netflix’s Rebecca

A man and a woman are standing on a leafy, tree-lined path. The main is wearing a suit and leaning toward the woman. The woman is wearing a pantsuit and beret and reaching up to touch the man’s chin.

Armie Hammer as Maxim de Winter, Lily James as Mrs. de Winter. | Kerry Brown/Netflix

The new adaptation plays like an eighth grader read the SparkNotes and badly misunderstood them.

Rebecca, the 1938 gothic novel by Daphne du Maurier, has one of those perfect opening lines: “Last night I dreamt I went to Manderley again.”

As the first chapter continues, the narrator goes on to describe walking into the country house of Manderley: how it was once perfect and now is ruined, how it used to be hers to love and luxuriate in. Then she goes on to describe the small, sad life she lives now in exile, and you know something awful must have happened for her to end up here.

Gothic horror lives and dies by its elisions, by what cannot be said, and there is so much unspoken here. What’s left now is only a sense of lost luxury and decay and corruption, of a once-great house gone dark and moldering. You read the rest of Rebecca to find out what happened to Manderley, and you know that anything encountered after Manderley can only be a disappointment.

This is a story told by a sad, dry woman living a sad, dry life. Manderley, the object of her fetishistic obsession, is gone now. She will never be happy without it.

That sense of corrosive nostalgia is where du Maurier’s Rebecca starts, and an ideal adaptation of the novel would find a way to recreate that mood on film. (Hitchcock’s 1940 Rebecca does it beautifully, outside of the Hayes Code-mandated hash it makes of the ending.) But Netflix’s messy and disappointing new film adaptation of Rebecca, directed by Ben Wheatley, doesn’t come anywhere close to pulling it off.

Wheatley’s Rebecca begins with that perfect opening line, just as Hitchcock’s adaptation did before it. But unlike other versions of Rebecca, Wheatley’s comes back around to that opening line again at the very end of the film. And I’m going to spoil for you exactly how Wheatley reprises that line, because the way you feel about this choice will determine whether or not this Rebecca is a waste of your time.

“Last night I dreamt I went to Manderley again,” says Lily James in voiceover, as she plays our unnamed heroine frowning in her sleep. And then she wakes up, and this is what we hear as her voiceover continues:

Last night I dreamt I went to Manderley again. I dreamt of Mrs. Danvers, and of Rebecca.

But this morning I woke up and left the dead behind. And as I sit before the mirror in our stuffy little room in Cairo — just another stop on our quest to find a real home — I can see the woman I am now. And I know that I have made the right decision. To save the one thing worth walking through flames for. Love.

At the close of this speech, she turns to her husband, Maxim (Armie Hammer), who is shirtless and appears to be oiled for some reason, and swoons into his arms. And the camera fades to black.

It is undoubtedly healthy for this version of our narrator to stop obsessing over Manderley, leave the dead behind, and focus on love. And undoubtedly there is no reason you could not make a perfectly nice film about this version of her. She’s a plucky young woman with sound emotional boundaries and a kicky beret collection. She finds true love with a rich widower who hates shirts and then, after the tragic destruction of his country house, leaves everything behind to travel the world with him. Emily in Paris as a period piece, with a fire. Why not?

But for reasons that remain a mystery to me, Wheatley seems to be insisting that Emily in Cairo and Also It Is the ’40s must also be du Maurier’s Rebecca, at the same time. He’s made a film that wants to be a frothy, aspirational love story between two attractive and emotionally healthy people with great wardrobes — and also wants to be a piece of gothic horror about a terrible woman and her love for a great house.

The result fails to be either gothic, horrifying, or enjoyable frothy. Instead, Wheatley’s Rebecca seems destined to please no one.

This Rebecca is plagued by the desire to make its protagonists likable. That’s a losing battle.

A man and a woman stand on a balcony overlooking the sea. The man is walking away from the woman and frowning. The woman is gazing after him, looking troubled.
Kerry Brown/Netflix
Lily James as Mrs. de Winter, Armie Hammer as Maxim de Winter.

The elision at the center of Rebecca, the absence around which its gothic horror is built, is the elision of Rebecca herself, Maxim’s mysteriously dead first wife. We never meet her on the page, but we get loving descriptions of all the petty detritus of her life: her hairbrush, her nightgown, her flowers, her stationery. Most of all there is Rebecca’s handwriting, with the bold and dashing R that the unnamed protagonist cannot help but compare to her own dull schoolgirl cursive. She sees that R everywhere, and every time she sees it she is reminded of her inferiority compared to Rebecca.

The protagonist has married Rebecca’s widower husband, rich and handsome Maxim de Winter, after Rebecca’s mysterious death. In du Maurier’s novel, the protagonist is a dull little thing, so self-effacing that she doesn’t even have a name. Still, she’s compelling to read, because she’s animated by both a ferocious desire to force everyone to like her and a miserable certainty that she is too awkward and gauche ever to do so successfully, so that her sentences seethe with frustrated rage. Critics usually call her the second Mrs. de Winter, and she wears the splendor of that moniker like a silk ball gown several sizes too big: It doesn’t fit her.

But from the first moment Lily James bounds across the screen with the easy confidence of those born beautiful, it becomes apparent Wheatley’s version of the second Mrs. de Winter will be different. This version of the character makes charmingly nerdy speeches about fun palm tree facts she has picked up from her extensive reading. She has evolved and well-adjusted motivations, such as her longing to travel and see the world and the depth and purity of her love for Maxim.

And when the second Mrs. de Winter strolls into Manderley with a jaunty blue beret perched on her Grace Kelly bob, it’s clear that if she upsets the order of things in this house, it won’t be because she’s too gauche and too awkward to know better. It’s because she is so fresh and modern that she is bringing this fusty old country house into the 20th century out of the sheer force of her adorable pluck.

Maxim, who whispers dolefully that all marriages must have their secrets and sleepwalks at night, is assuredly hiding something. But it can’t be anything all that dark in this version of the story. Hammer plays Maxim as a sort of stuffed shirt with broad shoulders: lovely to look at, covered in luxurious fabrics and wealth of all sorts, and far, far too dull to have any very compelling mysteries to plumb. He’s romantic enough to sweep the second Mrs. de Winter off her feet, but there’s not that much more to him. He’s the sort of generic love interest that is that sweet young girl’s due.

Wheatley’s protagonists are, in a word, likable, and that seems to be the ethos animating this adaptation: Let’s make it likable, even if that means making it bland. Let’s give her a coherent if basic personality instead of leaving her a seething mass of neuroses. Let’s smooth out that bizarre power dynamic between Mrs. de Winter and Maxim, the one where it seems like he picked her up because he likes that she’s so profoundly insecure that he can dominate her emotionally the way he couldn’t Rebecca. Let’s make them have soft-focus sex on the beach in Monte Carlo, and hold hands and giggle like teenagers as they walk into Manderley. Let’s make this all unproblematic and easy to root for.

It is of course any director’s prerogative to make bold changes when adapting a classic, but worrying about the main characters’ likability strikes me as a truly bizarre focus to take when adapting Rebecca. That’s because the big plot twist in this story, which Wheatley leaves more or less intact, is that although the protagonist is worried that Maxim is still in love with Rebecca, he’s not. He actually murdered Rebecca in cold blood and is worried about covering up the murder. And when the second Mrs. de Winter learns this fact, she is ecstatic with relief.

“Maxim did not love Rebecca,” she thinks in du Maurier’s novel. “He had never loved her, never, never. They had never known one moment’s happiness together. Maxim was talking, and I listened to him, but his words meant nothing to me. I did not really care.”

In du Maurier’s Rebecca, these are not nice people. Their love story is not healthy or aspirational. The second Mrs. de Winter is a small and awful person who is eager to overlook a murder for a chance at emotional approval and material luxury. Maxim is icy and withholding, ready to kill one wife when she angers him and careful to select a second too riddled with anxiety to ever risk doing the same. They are very far from being likable, and that is what makes them interesting. The fact of their unlikability is part of what makes Rebecca a great novel.

Nevertheless, Wheatley rejiggers this gothic horror story at every opportunity to cast the most flattering possible light on his blandly likable stars. He reframes Rebecca’s death so that she comes right up to the point of pulling the trigger of the gun for Maxim, leaving him with as little responsibility as possible for the murder. In the criminal investigation that comprises the film’s final act, Maxim becomes the underdog, the dark horse it’s easy to root for. He’s the victim of a detective determined to humiliate him, who sneers in Maxim’s face that “no one’s above the law” while the second Mrs. de Winter pluckily works to cover up clues.

Du Maurier’s version, in contrast, has Maxim refusing to bother to cover up clues. He doesn’t need to, because the detective, who likes attending Manderley parties, goes out of his way to avoid casting any kind of suspicion on him. The implication there is that Maxim is above the law, because he is rich and socially powerful, and we live in a classist society.

Personally, I think that’s a much more interesting idea to examine than the idea that sometimes aristocrats should be allowed to get away with murdering their wives because it wasn’t really their fault but then mean detectives go after them anyway but luckily their industrious young wife solves everything in the end. But then, I am not Ben Wheatley!

Kristin Scott Thomas is an extraordinary Mrs. Danvers. But she can’t save this movie.

A woman in a dark suit stands in a dimly lit hallway in front of a door.
Kerry Brown/Netflix
Kristin Scott Thomas as Mrs. Danvers in Rebecca.

If there’s a shining bright spot in Wheatley’s Rebecca, it’s Kristin Scott Thomas as Mrs. Danvers, the Manderley housekeeper who was devoted to Rebecca. Thomas plays Mrs. Danvers with eyes as flinty as ice and her impeccable lipstick frozen in a permanent sneer, so when she says, “Welcome to Manderley,” to the second Mrs. de Winter, the clear subtext is, Die, bitch.

Mrs. Danvers is the only person in this movie who seems to think the story is gothic horror, and she is committed: rhapsodizing about dead Rebecca as she viciously tugs Rebecca’s hairbrush through the second Mrs. de Winter’s hair; murmuring like a snake in the second Mrs. de Winter’s ear about how she can’t hold a candle to Rebecca and it would be easier for everyone if she just jumped right on out the window.

Thomas carries so much intensity in her gaze that she could walk away with the movie easily even if she weren’t trying. And since she is in fact committed so hard and so gleefully that she might as well be holding the whole film at gunpoint and shouting, “This is a stickup,” well, the film’s hers before she finishes delivering her first line.

But even Mrs. Danvers can’t escape Wheatley’s commitment to making everyone as likable and boring as possible. She gets a whole speech to the second Mrs. de Winter that seems to be loosely aiming for the ethos of Greta Gerwig’s lovely Little Women adaptation, about how limited women’s choices are and how women who have chosen different paths to succeed in this difficult world must support each other. It turns out in the end to be part of her evil plot to humiliate Mrs. de Winter — but the entire idea of a Mrs. Danvers who would think in feminist terms, even to manipulate, is foreign to the character and to the genre. It feels ported in from that Emily in Old-Timey Cairo movie Wheatley is refusing to commit to, even though it’s clearly the movie he would prefer to make.

But that, in the end, is the big problem plaguing Rebecca. Ben Wheatley has no business making a gothic romantic horror movie if he is not interested in gothic romantic horror, and on the evidence of this film, he is not. So instead, he has made a Rebecca without purpose or soul, about two blandly nice people who commit and then cover up a murder but it’s okay because they’re nice, and then afterward they have dully nice sex in Egypt.

Wheatley’s Rebecca is a horror film that is resolutely sure there is nothing horrifying going on here at all, actually. And as soon as some enterprising Kristin Scott Thomas stan has put together a supercut of all of her scenes from this movie that you can easily play on YouTube, there will be no reason for anyone to watch this movie, ever.


Help keep Vox free for all

Millions turn to Vox each month to understand what’s happening in the news, from the coronavirus crisis to a racial reckoning to what is, quite possibly, the most consequential presidential election of our lifetimes. Our mission has never been more vital than it is in this moment: to empower you through understanding. But our distinctive brand of explanatory journalism takes resources. Even when the economy and the news advertising market recovers, your support will be a critical part of sustaining our resource-intensive work. If you have already contributed, thank you. If you haven’t, please consider helping everyone make sense of an increasingly chaotic world: Contribute today from as little as $3.