Tipping the Scales: The MAGA Justices Have Already
Interfered with the 2024 Elections
They continue to be no less partisan than the House or
Senate GOP Caucuses
JUN 19, 2024
By
shielding Donald Trump from standing trial before a jury in two of his felony
cases, Trump’s three appointments to the Supreme Court, along with the even
more MAGA Justices Alito and Thomas and Judge Aileen Cannon, have already
irreparably interfered in the 2024 election. Most importantly, when we finally
do get the immunity ruling in the days or more likely weeks ahead, it will set
the stage for a historic crisis.1 We
will face an irreconcilable showdown between the normal operation of the
criminal justice system (which should find Trump in pretrial and trial
proceedings for his January 6th crimes over the next five months) and the
normal functioning of presidential elections (which should find
him campaigning full-time during those months).
Furthermore, proceeding with Trump’s trial in a timely
fashion would supercharge pre- and post-election claims that the election was
not free and fair. Yet not holding the trial before the
election would surrender the imperative for voters to know the full extent of
Trump’s legal accountability for the insurrection. Indeed, if you watch focus
groups, or talk to voters who don’t live in our 24-7 political news ecosystem,
you will find that (1) they take Trump’s criminal conviction for 2016 election
interference extremely seriously; (2) conversely, many have internalized the
failure to hold Trump accountable for the insurrection as evidence that his
crimes there were not as serious as they appeared, and (3) many believe Democrats bear responsibility for the failure
to hold him accountable for the attempted coup.
It didn’t have to be this way: had the
Republican majority on the Court not intervened at the last minute, we would
already have a verdict in the case. We would also have a verdict
if they had not rejected Jack Smith when he asked them to decide the same
issues last December.
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Post-Hoc Immunity: Another page ripped from the
authoritarian playbook. Now, imagine you were
told that in another country, a president who had been defeated in a free and
fair election attempted a coup, for which he was indicted. However, four years
later, the very judges he had appointed have successfully helped protect him
from standing trial. That is America in 2024.
And yet somehow, Topic A continues to be whether duly
prosecuting Trump will erode confidence in the legal system, despite
overwhelming evidence that the DOJ has been scrupulous in affording him every
possible deference. Instead, we should be asking whether
it erodes confidence in the legal system when the judges Trump appointed
intervene to shield him from accountability.
Whether it’s in Orban’s Hungary, Erdogan’s Turkey, Putin’s
Russia, or now the United States, authoritarian movements consistently attempt
to amass and consolidate power by hijacking courts to provide them with post-hoc impunity.
In the US’s case, the hijacking we now confront by the MAGA judges is the
result of decades of hollowing out judicial independence by the Federalist Society and its revanchist backers.
Their goal is to accomplish by fiat that which could not be done through
anything resembling a democratic process – from stripping freedoms we’ve taken
for granted to removing essential restraints on corporate power.
Repealing and Replacing the 20th Century. In
this post, I want to make clear that this kind of interference is neither
isolated nor recent. Since its brazen outcome-determinative election
interference in Bush v. Gore, the GOP-appointed justices have
consistently acted to benefit Republicans electorally. They do that both by
systematically overhauling the federal election system to Republicans’ benefit,
and by making pro-GOP decisions in nearly every election-specific decision. In
almost every instance, these decisions have been made on a party-line basis,
often with obvious disregard for facts and logic.
All of the current MAGA majority justices and Judge Aileen
Cannon have current or former associations with the Federalist Society, and the
group has been a de facto gatekeeper of GOP Supreme Court and important lower
court nominations for decades.2 That
power peaked in the Trump administration. As I showed
in “Breaking the Law: Trump Is the Means, Not the End,”
Federalist Society majorities have acted with ever-increasing impunity to
leverage the power granted to them by an ever-diminishing proportion of
Americans, as reflected by the presidents who nominate them and senators who
confirm them.
The Federalist Society Stakes. The
2024 election could determine whether Federalist Society justices’ life’s
project succeeds in the long term. Therefore, these jurists have an obvious
lean writ large when it comes to Trump’s cases. Consider that by 2028, Clarence
Thomas will be 80 and Samuel Alito 78, and Sonia Sotomayor will be 73 and has a
chronic health condition. That means that by 2028, Trump could make nominations
that add up to a 7-2 Federalist Society majority, with John Roberts the only
one over 65 years old. On the other hand, if he gets to name a replacement for
the two older Republicans plus Sotomayor, Biden’s second-term nominees could
constitute a 5-4 “Democratic” majority.3 The
stakes are similar in terms of the federal appeals and district courts, where a
second Trump term would likely provide Federalist Society majorities on even
more of the circuits, and many of his second-term appointments would be
unqualified ideologues like Matthew Kacsmaryk. A second Biden Administration
(with a Senate majority), however, could claw back existing Federalist Society
majorities in several circuits.
Tipping
the Scales of Justice
It is clear that Bush v. Gore marked a
decided turn in which nearly every future major election case would be decided
by Republican fiat. In Bush v. Gore, the Supreme Court literally
intervened to pick the winner of the 2000 election. But since then, the
Federalist Society majority’s interventions have been broader and more
insidious – completely remaking our election systems to favor the interests
that back the Republican Party.
At no point since World War II has there been a 5-4
partisan ruling to make elections more democratic – not to
expand voting rights, limit campaign finance, or constrain gerrymandering. (For
most of the span of the Roberts Court, five of the nine justices were appointed
by Republican Presidents and four by Democratic Presidents. Thus, in that
period, a 5-4 split almost always represented a straight party line split.)
When SCOTUS made elections more democratic it was by large
majorities, and almost exclusively by the Warren Court. However,
Republican-appointed majorities have made our elections less democratic
on a straight partisan basis repeatedly over the last 24 years. Beginning
with Bush v. Gore, on at least a dozen occasions, SCOTUS has
radically altered election law on a partisan 5-4 or 6-3 basis – often
overriding bipartisan legislation enacted by Congress, and often
relying on spurious facts or questions not even presented in the cases.
The following is based on the 30 most important
election-related cases decided by SCOTUS, beginning with the Warren Court, and
relies on the authoritative Supreme Court Database which indicates
whether a ruling was “liberal” or “conservative.”4
All six such decisions made by the Warren Court
consistently made elections more democratic, establishing principles like “one
person, one vote.” All of them were consensus decisions, by which I mean they
were made by justices appointed by both parties. That shifted a bit in the
Burger court, with about half of the cases deemed conservative and half
liberal, but nearly all were consensus decisions.
But then the Rehnquist and Roberts courts, in nearly every
instance on a straight party-line vote, completely remade federal elections to
advantage Republican interests (detail below). And, remember, all but one of
the Roberts Court's 6-3 decisions came after Barrett joined the Court. The only
other one was when Justice John Paul Stevens voted with the Republican
appointees to sustain a state voter ID law, a decision he subsequently came to
regret publicly.5
The following graph shows the number of important
election-related rulings each Court made, broken down by ideology. The dark
blue represents liberal consensus rulings with 7 or more
votes; the dark red represents conservative rulings where the majority
consisted only of Republican nominees.
The interaction of that approach and the Senate filibuster
is catastrophic. Republican-appointed justices have been legislating from the
bench, protected from congressional reversal by a filibuster that requires the
support of GOP senators who represent only 21 percent of the US population.
Similarly, at the state level, nearly every significant
restriction on voting rights over the last decade was passed by Republican
trifectas on straight party-line votes. On the other hand, many of the
expansions of voting rights on the state level were passed on a bipartisan
basis. And there are no examples of Democratic trifectas making it more
difficult for Republican constituencies to register or cast their
ballots.
For more on the divergence between Blue and Red state
legislating, see The Two Nations of America.
Tipping
the Scales of Justice #1 - Shielding Trump from accountability for January 6th
and the criminal conspiracy to overturn the results of the 2020 election.
The DC trial was set for and should have begun on March
4th, over three months ago.6 Three
months before that, Jack Smith asked SCOTUS to rule on an expedited basis on
the question of presidential immunity, which they declined to do. Compare this
to the swiftness of other important decisions. For example, Pentagon
Papers and Bush v. Gore appeals were both resolved
with the urgency they required—6 days and 4 days from cert petition to decide,
respectively, not the more than six months we have here.
Even if we look at longer timetables for other urgent
cases, the court has still blown past them. For example, in the 14th Amendment
disqualification case, the question of Trump’s candidacy on Colorado’s ballot
took just 25 days from argument to decision – a timetable that would’ve meant
an opinion by May 20 in the immunity case. If the Supreme Court showed as much
concern for protecting the Constitution and the American people from a former
president who incited a failed insurrection as they have for shielding Trump
from accountability, we would have had that decision by May 20. We are now
almost a month past that marker.
One more point about the immunity timeline: Presuming that
Kagan, Jackson and Sotomayor would have heard the case in December, we can
assume that none of the MAGA justices went along with granting cert. (Smith
needed 4 votes, which he obviously did not get). After the D.C. Circuit’s
unanimous rejection of Trump’s immunity claims, at least four SCOTUS justices
reversed their December position and agreed to hear the immunity
question.
Tipping
the Scales #2 - Shielding Trump from accountability in the documents case
Another United States v. Trump case that
should have already gone to trial concerns the 40 felony charges Trump faces
for his handling of presidential documents after leaving office. Yet they have
been “indefinitely postponed” by a district court judge
in South Florida. Aileen Cannon, the Trump appointee and decades-long
Federalist Society member overseeing the case, denied the Justice Department's
request last summer for a December 2023 trial date, setting it for May 20th 2024 instead – notably
after the Republican primaries. Since then, Cannon has allowed a questionable series of
kvetches by Trump’s legal team to push back the date, and her impartiality as well
as her ties to right-wing donors have reasonably
been questioned – the standard for mandatory
recusal under federal law. In a March hearing where the trial
schedule was discussed, Cannon shared her own concern that Trump’s
other trials “overlap substantially with the deadlines in this case, presenting
additional challenges to ensuring Defendant Trump has adequate time to prepare
for trial and to assist in his defense."
Despite both parties agreeing a few months later that a
summer trial date was feasible (Trump grudgingly), Cannon adjourned a pre-trial hearing on May 7th without
setting a new trial date, stating that “finalization of a trial date
at this juncture ... would be imprudent and inconsistent with the Court's duty
to fully and fairly consider the various pending pre-trial motions before the
Court, critical [Classified Information Procedures Act] issues, and additional
pretrial and trial preparations necessary to present this case to a jury."
Tipping
the Scales #3 - The Fischer case
SCOTUS decided to hear the appeal of Joseph Fischer, a
convicted January 6th insurrectionist, out of supposed concern that the statute
used to charge him (and about 300 others) could theoretically be used to
suppress legitimate protest.7 Should
the Court rule in favor of Fischer, it would cast doubt on the heretofore
uncontroversial prosecution of those attacking the Capitol on January 6th, as
well as challenge counts in the indictment against Trump.
Yet this eagerness to protect the hypothetical future
exercise of non-violent First Amendment speech and assembly was nowhere to be
found in another case involving a Black Lives Matter protest. The Court allowed the organizer of that protest, which
was non-violent save for a single protester throwing a rock at a police
officer, to be sued for that one protester’s actions.
Tipping
the Scales #4 - Gerrymandering the 2022 House Midterms
Had the midterm elections been conducted using the 2020
maps or the maps federal courts ordered states to use before the Federalist
Society justices overturned them, either Democrats would have held
their House majority, or Republicans would have won by at most one seat (218 to
217). The Federalist Society majority decisions allowed four states to use maps in the midterms that
violated the Voting Rights Act.8 In Merrill
v. Milligan and Arodin v. Robinson, the Supreme Court
ruled that Alabama and Louisiana should reinstate the gerrymandered maps that
lower courts had ruled unconstitutional. And when SCOTUS used the “Purcell” principle to
justify overturning the lower courts’ rulings, it caused a federal judge in
Georgia to find that there, too, maps that were likely unconstitutional could not be re-drawn so close to the election.
Beyond that, previous rulings that opened the door to
partisan gerrymandering enabled MAGA state legislatures to protect US
Representatives who voted against the election from meaningful accountability.
Of 122 pro-insurrectionist Republicans who were on the ballot, an astonishing
94 percent faced no possibility of electoral consequences for trying to
overthrow the duly elected president. Overall, only seven Republicans who voted
against certifying the results of the election ran in a district that even appeared
in the Cook Ratings (likely Republican, lean Republican, or toss-up), and two
of them lost. On the other hand, of the nine who voted to certify and ran in
competitive districts, eight won.
This was no accident. Of those 122 Republicans who voted
against the election, 90 were in states in which Republicans drew the lines.
Republican line drawers made sure their districts were safe. Of those 90, 89 of
them were put in safe districts. Only one was put in a competitive district.
(Seriously, just one.)
Tipping
the Scales #5 - Gerrymandering and the 2012 Midterms
In 2012, House Democrats won 51 percent of the national
vote, but held only 201 seats – 21 seats fewer than their proportion of the
vote – depriving Democrats of a trifecta in 2013 and 2014. The gerrymandering
penalty remained steep in 2014 (18 seats) and 2016 (23
seats).
Tipping
the Scales #6 - The Voting Rights Act and voter suppression
After Barack Obama’s victory in 2008, red states began
passing restrictions on voting which were upheld by the Federalist Society
justices. And then, of course, in a series of cases beginning with Shelby
County, the Court’s right-wing majority all but repealed the Voting Rights
Act. As I’ve explained, this decision effectively opened the door to modern-day poll taxes, and the
natural result has been suppression of Black voters, especially those in
younger generations.
The Voting Rights Act was reauthorized five times after its
original passage in 1965, each time by overwhelming bipartisan margins. Yet, in
2013, the five then-Federalist Society justices began to do what
no Congress would ever do: dismantle this democracy-defending, democratically
passed Act by judicial fiat. Indeed, Justice Scalia acknowledged as much when
he turned the meaning of that bipartisan consensus on its head. He cited the
VRA’s near-universal public support as evidence of democratic failure requiring
judicial intervention to correct (politicians have nothing to gain by
overturning popular “racial entitlement” laws).9 Through Shelby
County and its progeny, Republicans were able to outsource this dirty
work to their Federalist Societies on the judiciary.
As horrible as Scalia’s remark sounds at first, it actually
reflected an even more poisonous perspective. Even if you support affirmative
action (as I do), it is essential to see the VRA as categorically different, as
near unanimous congressional bodies had. The VRA did absolutely nothing to make
it easier for Blacks to vote than whites; indeed, in terms of
waiting on line, de facto costs of registering, and so on, it
was more difficult for Black people to register and vote the day after the VRA
was enacted, as it was the day Shelby was heard. The practical purpose of the
preclearance requirements was to prevent state and local governments from
making that disadvantage worse. The “entitlement” Scalia referred to was
nothing more than being protected from laws and rules aiming to further limit
targeted groups’ democratic participation.
Ruth Bader Ginsburg had this stinging retort to Roberts’
claim in the majority opinion in Shelby County that the racial
turnout gap in covered jurisdictions were no larger than elsewhere in America:
“Throwing out preclearance when it has worked and is continuing to work to stop
discriminatory changes is like throwing away your umbrella in a rainstorm because
you are not getting wet.” (The racial turnout gap is the difference between the
turnout rate of white and (in this instance) Black voters.)
In his majority opinion Roberts made the completely
unsubstantiated assertion that “our country has changed” – waving away the
15,000 page record justifying the continuing need for the VRA, which Congress
had compiled to support its nearly unanimous reauthorization (98-0; 390-33) of
the Act. The evidence in the record included documentation from the Justice
Department and supplementary briefing that the covered jurisdictions continued
to make nearly as many attempts as in previous decades to change voting rules
in ways that had been rejected by the Justice Department in previous decades.
In other words, the situation was not one in which bad motives had to be
imputed to the covered jurisdictions to argue that continuing vigilance was
necessary. The covered jurisdictions, right up to and including the
instigating actions by Shelby County, had not stopped trying to enact
discriminatory voting rules.
Moreover, in choosing the racial turnout gap as a metric,
Roberts moved the goalposts. By doing so, he was saying it was no longer of any
concern if state and local governments made it more difficult for Blacks to
vote as long as Blacks were still voting. This was a weird “no harm no foul”
approach found nowhere else in the law.
But there’s more. Using shamelessly spurious reasoning, as
if to taunt us with their naked power, the majority literally invented the
“doctrine of equal [state] sovereignty” for the occasion. Even conservative
Reagan Federal Appeals Court appointee Richard Posner declared that “there is no such principle.”
So it was especially galling that Roberts had transformed the Jim Crow rallying
cry of “states’ rights” into the fancier “doctrine of equal state
sovereignty.”
Scholars have tracked the “cost of voting” since the 1990’s by scoring each
state based on metrics such as average wait time at a polling place or whether
the state allows early voting. As you can see in the graph below, the “cost” of
voting dramatically increased between 2008 and 2020 in red states while
decreasing substantially in the blue states. (More here.)
Tipping
the Scales #7 - Campaign Finance
Citizens United overturned
long-standing precedents such as Austin v. Michigan Chamber of Commerce (1990)
and portions of McConnell v. Federal Election Commission (2003),
which had upheld restrictions on corporate political expenditures. To do so,
the majority expanded the scope of the case from the relatively narrow issue
about the broadcast of a political documentary and the application of the
Bipartisan Campaign Reform Act (BCRA) to address the broader constitutional
question of corporate political spending.
Beyond that, there was inadequate consideration of the
factual record and empirical evidence regarding the impact of corporate
spending on political corruption and the electoral process. The majority based
their argument on abstract principles of free speech rather than a careful
analysis of how corporate spending affects the political landscape. This
approach has been criticized for lacking a thorough examination of the
potential real-world implications of the ruling.
Moreover, the ruling showed lack of deference to Congress,
which had just passed the BCRA with the intent of curbing corruption and the
appearance of corruption in politics. In other words, on a strictly partisan
5-4 vote, the Federalist Society majority struck down bipartisan congressional
action. In 2010, the Congress was still a more bipartisan body than the
Court.
The next graph shows that, adjusted for inflation, total
spending on congressional and presidential campaigns was barely more in 2008,
the last presidential election before the Citizens United ruling, than it was
in 2000. But in 2020, spending for the presidential campaign was nearly twice
what it was in 2008, and spending for congressional campaigns more than twice
what it was in 2008. Moreover, studies have consistently shown that Citizens
United significantly increased Republicans’ success in state legislative races.
For example, this study “analyzed data from more than
38,000 state legislative races between 2000 and 2012, in both groups of
states.” It concluded, “The chance of Republican candidates winning state
legislative seats increased by about four percentage points on average as a
result of Citizens United,” findings confirmed by a subsequent study.
Tipping
the Scales #8 - Bush v Gore
Much has been written about Bush v. Gore. In
many ways, it set the template for the strictly partisan electoral decisions to
come. It is worth remembering that when SCOTUS shut down the vote count in
Florida on dubious legal grounds, it was also on the basis that the recount
ordered by the Florida Supreme Court couldn’t be completed by the statutory
safe harbor day. But, in fact, the count was well underway the afternoon of the
ruling and was likely to have been completed before safe harbor day.10
WIth respect to the ruling, Justice Stevens concluded that
the counting of legal votes could never constitute an “irreparable harm”—which
stays are supposed to prevent. Furthermore, he wrote in dissent:
To stop the counting of legal votes, the majority today
departs from three venerable rules of judicial restraint that have guided the
Court throughout its history. On questions of state law, we have consistently
respected the opinions of the highest courts of the States. On questions whose
resolution is committed at least in large measure to another branch of the
Federal Government, we have construed our own jurisdiction narrowly and
exercised it cautiously. On federal constitutional questions that were not
fairly presented to the court whose judgment is being reviewed, we have
prudently declined to express an opinion. The majority has acted unwisely.11
In 2001, the National Opinion Research Center (NORC) at
the University of Chicago, sponsored by a consortium
of major United States news organizations, conducted the Florida Ballot Project, a comprehensive review of
175,010 ballots that vote-counting machines had rejected from the entire state,
not just the counties that conducted manual recounts. They concluded that if the disputes over the
validity of all the ballots in question had been consistently resolved and any
uniform standard applied, the electoral result would have been reversed and
Gore would have won by 60 to 171 votes.
The
illusion of democratic resilience in the 2020 post-election cases
For the last several years, we’ve taken at face value that
“democratic institutions held” in part because Republican election
administrators like Brad Raffensperger, Justice Department officials like Bill
Barr, and a Supreme Court packed with three Trump appointees rejected Trump’s
efforts to overturn the results of the 2020 election at every turn. Typical of
this sentiment was reporting like, “In Key States, Republicans Were Critical in
Resisting Trump’s Election Narrative: They refuted conspiracy theories,
certified results, dismissed lawsuits and repudiated a president of their own
party.”
This narrative is dangerously flawed because it takes no
account of the incentives of each of those Republican actors: They faced a
classic prisoner’s dilemma because immediately after the election, Biden was
seen to have flipped Arizona and Georgia as well as the more expected Michigan,
Pennsylvania and Wisconsin. That was crucial because it meant that for Trump to
win the Electoral College, three of those five states would
have to reverse the results. Thus, on January 2, 2021, when Trump asked him to
find 11,780 votes, Brad Raffensperger knew that even if he did, unless two of
the other four states did the same, Biden would still be sworn in, and he,
Raffensperger, would be exposed to prosecution for very serious felonies. And
remember, the secretaries of state of the other four states were
Democrats.
Trump’s allies on the Supreme Court faced a similar, but
not identical, dilemma. Unlike in 2000, when Bush’s allies on the Court had to
make only one ruling (albeit unprecedented and controversial) to appoint him
president, reversing the results of the 2020 election would have meant
overturning elections in three states decided by tens of thousands of votes
instead of one “decided” by less than 600 votes. Especially given the business
community’s clearly stated commitment to a peaceful transfer of power, intervention
would have been a bridge too far. But, more important than that, it’s important
to remember that before January 6th, Trump’s Republican establishment foes,
including Mitch McConnell, were fairly pleased with the election result. They
felt it was win-win – voters would sweep Trump out of their lives, and if, as
they expected, Republicans won at least one of the two run-offs in Georgia,
they would have a Senate majority to make Biden a harmless one-term
president.
Conclusion:
The Hijacked Court
The history of the corporate and religious right campaigns
to capture the courts and hijack democracy itself has been so exhaustively
documented elsewhere that there’s no need to recite it here.12 What’s
important to understand now is the result of that campaign. Since the
Federalist Society was founded in 1982, the Court has transformed from an
imperfect arbiter of genuine controversies to an agenda-driven, unelected
lawmaking body whose decisions have systematically been opposed by the majority
of Americans. Federalist Society majorities have acted with ever-increasing
impunity to leverage the power granted to them by an ever-diminishing
proportion of Americans, as reflected by the presidents who nominate them and
senators who confirm them. Thus, it’s long past time to stop covering the Court
as if it is anything other than an unaccountable super-legislature enacting an
unpopular revanchist agenda.
Justices Thomas, Alito, Gorsuch, Kavanaugh and Barrett are
the only five of the 116 justices to serve on the Supreme Court to have been
confirmed by senators representing less than one half of the US
population. Only John Roberts among current GOP justices was confirmed
by senators representing a clear majority of Americans. The panel on the left
shows how dramatically different that was just 24 years ago, when, with the
exception of Clarence Thomas, every justice on the Court was confirmed by
senators representing at least two thirds of the US population, and six were
confirmed by senators representing 90 percent of the US population.
Furthermore, of all the justices to serve in the last
century and a half, Gorsuch, Kavanaugh and Barrett are the only ones to have
been named by a president who did not win the popular vote. And, of course,
Gorsuch and Barrett both owe their seat to Mitch McConnell. That is the case
with Gorsuch because McConnell illegitimately refused to fill a vacancy when
Obama was president. It is true of Barrett because McConnell illegitimately
rammed through her nomination after tens of millions of Americans had cast their
ballots, and as every survey and forecast indicated that Biden would be the
next president. Moreover, although it was obvious at the time, it has since
been more substantiated that both Thomas and Kavanaugh perjured themselves at
their confirmation hearings.13
As recently as 2000, even the justices that gave us Bush
v. Gore had been confirmed by senators representing regions in rough
proportion to the country as a whole (left panel). But just two decades later,
we can see that putting Thomas aside, the Supreme Court is now as divided
sectionally as the Congress and as the Electoral College.
I offer these reflections not to inspire despair. If we are
to find solutions to the cancer of autocracy creeping through the American body
politic we must be candid with ourselves and each other about the nature of the
disorder. It has profoundly corrupted our judiciary. In future essays, I will
turn to the solutions. There are many, but they must start with Democratic
voters understanding the stakes when they go to the polls, as Republicans long
have. That must start with the 2024 election if we are to maximize our hopes of
surviving as a democracy.
As James Baldwin inspired us, “Not everything
that is faced can be changed, but nothing can be changed until it is faced.”