On Tuesday evening, Democratic Senator Jeff Merkley stepped onto the Senate floor to begin a marathon speech that extended well into Wednesday. The topic of his stemwinder was most urgent: “I’ve come to the Senate floor tonight to ring the alarm bells. We’re in the most perilous moment, the biggest threat to our republic since the Civil War. President Trump is shredding our Constitution.” For Merkley, the matter hit close to home, quite literally: “President Trump wants us to believe that Portland, Oregon, in my home state, is full of chaos and riots. Because if he can say to the American people that there are riots, he can say there’s a rebellion. And if there’s a rebellion, he can use that to strengthen his authoritarian grip on our nation.”

One shouldn’t expect the president to be moved by Merkley’s admonishments. And there are not likely to be many Senate Republicans swayed by his overtures. But there were plenty of people on hand who needed to hear what the Oregon lawmaker had to say—specifically, his Democratic Senate colleagues, who haven’t been singing from the same pro-democracy hymnal lately. Merkley’s oration arrives at a time when some spines need stiffening.

The U.S. Senate: For a long while now, it’s where Democratic Party ambitions, along with democracy itself, have hit the skids. There are structural reasons for that: Far fewer voters are represented by the GOP majority, and this malapportionment problem is exacerbated by changing demographics that could one day allow 30 percent of Americans to elect 70 of its senators. But Republicans learned long ago that their agenda—showering tax benefits on the wealthy and breaking the government—only requires 51 votes most of the time. Democratic governance—which involves building, fixing, regulating, preserving, and improving—requires 60 nearly always.

One might have expected by now that Democrats would have recognized how the Senate filibuster, which requires them to regularly conjure these supermajorities, is something of a suicide pact. Or that it’s a recent innovation that’s easily discarded. Or that it runs so counter to the Founders’ ideals that its very existence should be offensive. But not enough Democrats have made this leap. And the reason is that too many of them suffer from what The New Republic contributor Christopher Sprigman calls “Degenerative Senate Brain.”

Having observed this less than august body operate over the past few years, I think that the main problem with many of our Democratic senators is that they believe their own hype. They all think they’ve signed up for an austere debate club—the “world’s greatest deliberative body,” the “cooling saucer” of government. They don’t seem to have noticed that when it comes to deliberating, or maintaining a reputation for judiciousness and equanimity, everyone has to agree to participate in those ideals. And Trumpist Republicans do not: They’ve shut down the government. They’ve willingly ceded the power of the purse. They rarely if ever question the Mad King’s desires. Do you remember the public agonizing of Louisiana Republican Bill Cassidy over Robert F. Kennedy Jr.’s appointment to Health and Human Services? And then Cassidy ended up meekly endorsing him, to Cassidy’s lasting chagrin? That’s about as robust as GOP deliberations get.

The state of the GOP means that you can’t really have a Senate anymore. Unfortunately, the most Senate-brained Democrats still naïvely believe that they can revive this moribund body, through actions that at best send mixed messages and at worst directly undermine the work of Democrats like Jeff Merkley.

Case in point: This week, amid the government shutdown, 13 Democratic senators joined forces with all but one Republican to advance the nomination of Harold Mooty to a judgeship in the Northern District of Alabama. Some fun facts about Mooty that The New Republic’s Ellie Quinlan Houghtaling collected: He has gone to some lengths to dance questions about the January 6 riots and who was culpable; he practically invented new verb tenses to avoid saying directly that Joe Biden was the legitimately elected president.

When it comes to deal-breakers, to each their own, but I find it puzzling that these weren’t some crimson flags for Senate Democrats. But even if they weren’t, everyone should understand that the only role a Republican judicial nominee plays in American life is serving Trump as if he was their personal legal client and backstopping his savage corruption. For that reason alone, there should never be a Democratic name signed to the advancement of Trump’s judges.

Why would 13 Democrats (and Maine independent Angus King, who I find too tiresome to explain to people) do such a thing? My theory is this: In their own skewed, Senate-brained view of the world, taking these kinds of votes helps to bolster democracy. That is to say, any time there is a small window in which they can make a gesture of comity and bipartisanship, they believe the right thing to do is to take it—the better to demonstrate that the ol’ ship of state is still humming along, normal business and regular order is possible, and that we aren’t so far off from recovery. Democrats are leaving the door to deliberation open. They’re keeping that saucer on ice.

Folks, I would love to believe that a small overture might seed a future coming together of polarized parties. But if watching schoolchildren get shot to pieces several times a year isn’t going to foster that fellowship, then we’re definitely not getting there by throwing the other side a bone in the form of Harold Mooty. The government is shut down, there’s a hole in the White House, the president is ordering extrajudicial killings in Latin America as part of some run-up to a regime change war, and citizens are getting snatched off the streets by Brett Kavanaugh–inspired goons. The system so loved by the Senate-brained is currently offline! And these votes to approve the odd judicial candidate are simply small enabling acts that only help to fuel the disorder.

Is democracy in grave danger? This week, it looks like Merkley and his allies agree, and that 13 other Democrats aren’t really ready to believe him. But with midterms looming, everyone in the party has to be of one mind on the matter in order to not sow confusion among critical voters. And if they all truly agree that Trump is some unique threat, we cannot have Democrats in double digits signing their name to support his agenda—not now, not ever.

This article first appeared in Power Mad, a weekly TNR newsletter authored by deputy editor Jason Linkins. Sign up here.

Believe it or not, there was a time when the Supreme Court’s emergency docket rulings did not regularly garner controversy; they were simply the means by which the court could consider time-sensitive legal crises, such as motions related to capital punishment. But a key feature of the Trump era is the transformation of the emergency docket into the “shadow docket”: unsigned rulings that have had a profound effect on the country. Beyond the fact that these rulings have a “heads Trump wins, tails Democrats lose” bent, they are, as Erwin Chemerinsky notes, often proffered without much in the way of jurisprudential explanation while frequently bulldozing precedent. The justices themselves may not like the term “shadow docket,” but they seem to relish operating in the shadows all the same.

But there is one instance in which a justice did attempt to explain himself in a recent shadow docket ruling, only for that justice’s reasoning to blow up nearly immediately after its first encounter with the real world: Brett Kavanaugh’s concurring opinion in Noem v. Vasquez Perdomo, in which the Supremes stayed a lower court ruling that was specifically impeding the Department of Homeland Security from racially profiling people for immigration stops. The larger court, as is its wont, failed to offer a ruling. But Kavanaugh opted to weigh in all the same. His reward is a heaping helping of infamy in the form of a specific secret police tactic that many have taken to calling “the Kavanaugh stop.”

Here’s the essential background. As The New Republic’s Matt Ford reported after the ruling in Noem was handed down, Kavanaugh’s surprise concurrence went to some pains to “minimize the impact” of a law enforcement encounter: “Importantly, reasonable suspicion means only that immigration officers may briefly stop the individual and inquire about immigration status,” Kavanaugh wrote. “If the person is a U.S. citizen or otherwise lawfully in the United States, that individual will be free to go after the brief encounter. Only if the person is illegally in the United States may the stop lead to further immigration proceedings.”

As Ford noted, the law enforcement encounters that formed the basis of the case itself could hardly be called “brief.” One of the plaintiffs in Noem testified that his attempt to show valid proof of U.S. citizenship did not make the encounter any shorter, as the agents “refused to believe the validity of his California driver’s license.” As Justice Sonia Sotomayor recalled in her dissent, “The agent said the ID was insufficient, ‘grabbed [his] arm,’ escorted him to a vehicle, and drove him to a ‘warehouse area’ for further questioning.” None of that sounds at all like the quick interaction that Kavanaugh suggested was the theoretical norm. And in practice, the Kavanaugh stop hasn’t hewed to his imagined brief encounter, either.

The quintessential components of a Kavanaugh stop involve a person detained for immigration enforcement specifically, with race a certain or likely factor in the decision behind the stop—the Fourth Amendment’s protections from unlawful searches and seizures be damned. Sotomayor saw a grim future in the court’s decision: “We should not have to live in a country where the Government can seize anyone who looks Latino, speaks Spanish, and appears to work a low wage job.”

If the news is any guide, Sotomayor’s fears are now reality. As the Chicago Tribune recently reported, Chicago resident Rueben Antonio Cruz, a 60-year-old man originally from El Salvador, was sitting with a friend in Rogers Park when “immigration officers stopped their truck and went straight after them.” What followed was a classic Kavanaugh stop: Cruz and his friend were asked for “papers” proving their citizenship. Cruz, who was not carrying such papers on his person, was then bundled into the agents’ vehicle and interrogated. Cruz was eventually let go, but not before the agents fined him $130 for “not having his papers.” The ordeal left Cruz angry: “It’s not fair because I said, let’s go to my house and I’ll show you my papers. I’m a resident.”

The Tribune notes that while federal law requires registered foreign nationals to carry proof of registration with them at all times, “prior to a second Trump administration, it was rarely enforced.” The detention drew the criticism of the ACLU’s Ed Yohnka: “America has never been a place where people need to ‘show one’s papers.’ Ticketing a lawful permanent resident—and forcing him to appear in court and pay a fine for not carrying their papers—is unnecessary and cruel.” Unfortunately, it’s likely to become commonplace as Trump’s goons, freed from legal obligations by the Supreme Court, make the Kavanaugh stop part of their daily operations.

The possibility that Trump’s ICE agents, who have effectively been given carte blanche to abuse their authority, might simply dismiss their quarry’s valid proof of citizenship appears to have not occurred to Kavanaugh. But it has definitely occurred to the jabronis snatching up brown people in American cities. In a second Kavanaugh stop detailed by the Tribune, a 44-year-old Latina woman named Maria Greeley was out for a jog when she was jumped by federal agents who zip-tied her and detained her despite the fact that she carries her passport with her at all times to prove that she was born in the United States. According to the report, agents remarked that she didn’t “look like a Greeley,” dismissed her documentation, and accused her repeatedly of lying.

One of the most obviously impeachable things about the Supreme Court is that it’s so frequently out of touch with the real world—a perhaps inevitable condition of giving nine people special robes and lifetime job security and then stuffing them inside a sepulchral building to stew in their own partisan juices with no one to answer to. Kavanaugh’s flawed reasoning may simply be the product of profound naïveté. But since this all came about in a shadow docket case in which the Trump administration asked for emergency relief in the form of the permission to racially profile people, I think it’s hardly beyond belief to think that Kavanaugh felt compelled to try to put a good spin on a reprehensible ruling.

That Kavanaugh has to own the Kavanaugh stop is cold comfort. Who knows if it’s even possible to shame or humiliate Brett Kavanaugh anyway? It’s very possible that transforming the United States into a country more reminiscent of Nazi Germany’s “Ihre Papiere bitte” era is precisely the legacy that Kavanaugh sought for himself. We’re the ones who are stuck with the consequences.

This article first appeared in Power Mad, a weekly TNR newsletter authored by deputy editor Jason Linkins. Sign up here.

The popular way of describing what’s going on in Washington right now is to say that on October 1, the federal government shut down as a result of Congress’s inability to pass an appropriations bill to keep it funded. Chief among the sticking points was the fact that Democrats and Republicans could not come to terms on the future of Affordable Care Act subsidies. The Republican bill did not include them; Democrats balked at signing their name to a budget that would cause skyrocketing premium costs for millions of mostly low- and middle-income Americans.

You wouldn’t be faulted if that was your capsule summary of the shutdown. It’s essentially the story to which most of the political press is sticking, and there’s nothing fundamentally untrue about it. It would appear for now, in fact, that the broad public acceptance of this state of play is boosting Democrats’ fortunes in the game of who “owns” the shutdown. CNN’s Harry Enten reported this week that voters blame the GOP more, by an average of 12 points, and he noted that historically speaking, the party blamed at the outset is who gets blamed at the end. (It probably helps Democrats’ cause that those perusing the Obamacare exchanges for plans right now are already seeing the huge spikes in premium costs.)

Still, these facts only tell part of the story. This government shutdown isn’t merely about an appropriations bill, and it’s not entirely about health care subsidies. This shutdown is actually the culmination of a much deeper dysfunction, to which blame can indeed be wholly attached to President Donald Trump and his GOP apparatchiks. But the underlying cause of the shutdown is tricky terrain for Democrats to negotiate, and it calls into question whether they can—or even should—speedily resolve it. And the key to understanding the problem begins with acknowledging that this didn’t start in October. The government shutdown began a few weeks after Trump was sworn in.

Trump’s second term is broadly defined by his monomaniacal desire to either end or fatally impair the federal government. With the help of Elon Musk and Russell Vought, the Trump administration managed to do this in the most alienating possible way. As my colleague Alex Shephard noted this week, the administration’s slash-and-burn speedrun through the civil service has been broadly unpopular. It also probably goes a long way toward making any of the GOP’s rhetoric about Democrats being to blame for this most recent shutdown harder to take seriously.

But the reason things have dragged to a legislative standstill in October is essentially because Republicans in Congress willed it to be so when they returned to Washington to rejoin Trump as devoted supplicants. Their most fateful decision in that regard? Giving up one of the legislative branch’s core functions—the power of the purse. As NPR reported, by the first week of February, Republican lawmakers had already begun to master the art of explaining away why they were happy to surrender the power to appropriate money to Trump.

I characterized this at the time as an escalation in GOP lawmakers’ expansive campaign of self-abnegation. But it has ended up being so much more. The decision to give the White House full power to decide what, when, and how congressionally appropriated money is spent has created an impasse more deep and intractable than the shutdown itself, because the question of how the conflict over Obamacare subsidies gets resolved has become impossible to answer.

Let’s think about it for a minute. The White House’s position, as advanced by Vice President JD Vance and others, is that Senate Democrats should stop filibustering the appropriations bill now, and the matter of the subsidies can be negotiated later. The problem is that it’s impossible for a reasonable person to view that offer as sincere. Sure, Congress can go through the motions: meet in committee, hash out a deal, pass a bill, and send it to Trump’s desk. Trump can even sign that bill. But none of it matters when you know that Trump is likely to simply appropriate or not appropriate that money as he sees fit through pocket rescissions.........

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