"Life in the early months of Trump’s second presidency hews to this framework in important respects. How else to explain that most people enjoy a sense of normalcy while, for example, foreign students like Rümeysa Öztürk and green card holders like Mahmoud Khalil can be detained for their speech. Americans and immigrants alike can be terrorized by ICE, the federal government’s unleashed immigration force, if they speak Spanish, look nonwhite, or happen to be in the wrong place at the wrong time. The administration is sinking Venezuelan vessels and executing the civilians on board without any legal authorization—killings that look like war crimes or murder. The government demanded that Disney fire comedian Jimmy Kimmel as if the First Amendment didn’t exist. But at the same time, the Trump administration’s law-breaking in its war on immigrants, its crusade against dissent, its takeover of the machinery of the federal government, its unrestrained use of the military, have not cannibalized the broader legal system or society—at least not yet.

While these actions augur the onset of a dual state, the Trump administration hasn’t gotten us to this point alone. The Supreme Court, with its Republican-appointed 6-3 majority, has been a crucial facilitator. When the court blesses the administration’s disregard for the law while maintaining the appearance that the law still rules, it is enabling a dual state. When Jackson made explicit reference to Fraenkel, she was sounding an alarm on the court’s role in the shift toward a dual state. As Evan Bernick, a constitutional law professor at Northern Illinois University College of Law, puts it: “The reality is that the court is adjusting the law to make place for arbitrary power.”"

https://www.motherjones.com/politics/2025/10/dual-state-supreme-court/

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