1 big thing: The vaccines are amazing

Illustration of an upright vaccine syringe wearing a hero's cape

2. 10% of Americans have gotten a shot

3. Now for the bad news: Variants

4. Digital divide in school reopening

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5. Catch up quick

Illustration of a cell phone wearing a medical mask

Good morning. I'm filling in for Caitlin today.

Here's a little bonus to start your week: Try to wrap your mind around "ghoti," which is pronounced, "fish." And then try to convince me that English makes any sense.

Today's Smart Brevity count: 644 words, (all in English, for better or worse), or a 2-minute read.

Axios Vitals: Y'know what's great? These vaccines.

National

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Keep up with health care politics, policy and business

Axios Vitals

1 big thing: India's growing crisis

A makeshift mass crematorium in New Delhi

2. U.S. cases are finally falling

3. CEOs now want Washington's help on health costs

Illustration of a doctor's hand and a business hand tearing a hundred dollar bill in half. 

4. Real-world data confirm vaccines' efficacy

A woman receiving the Pfizer COVID-19 vaccine

5. The COVID population is getting younger

Good morning ... I'll be filling in for Caitlin for the next few days, with assists from my colleagues Marisa Fernandez and Tina Reed.

 Situational awareness: If you missed President Biden's speech last night, don't worry — it was pretty much what you'd expect: He called for expanding the Affordable Care Act, reducing the cost of prescription drugs (which, notably, isn't part of his legislative proposal) and investing in more research at the NIH.

Today's word count: 806, or a 3-minute read.

Axios Vitals: India's crisis fuels new variant fears

1 big thing: The holiday surge is here

2. Glimmers of hope on Omicron

3. CDC's vaccine totals may not be accurate

4. 1 good tweet

5. The parents who are still on the fence

Good morning ... I'm filling in for Tina today, and I have prepared for you a newsletter that's 820 words long, or a 3-minute read. Enjoy.

Situational awareness: The FDA has given emergency use authorization to AstraZeneca's COVID-19 antibody drug for people with compromised immune systems.

1 big thing: The next 100 million vaccinations

Illustration of a speedometer with a syringe in the middle

2. AstraZeneca can't catch a break

3. Hospital revenues bounce back

4. Colorado's public option goes bust

5. Monkey of the week

Good morning ... Happy Kentucky Derby weekend. Drink an extra mint julep for me, your favorite Kentuckian.

Today's newsletter is: 688 words — the most exciting 2 minutes in news.

Plus: Hospital revenues start to turn around

Axios Vitals: 100 million down, billions more to go

1 big thing: A preview of a longer pandemic

2. U.S. got 3.6 million shots Sunday

People waiting in line at a mass vaccination site

3. A reality check on vaccine passports

Illustration of a syringe checking off boxes on a list

4. Basic research pays off

Illustration of a hand in a medical glove holding a beaker full of liquid

Good morning ... I'm filling in for Caitlin today. Don't worry, she'll be back tomorrow.

Today's word count: 655, or a 2-minute read.

Axios Vitals: We can see what a longer pandemic looks like

Data: U.S. Courts; Chart: Danielle Alberti/Axios 

President Biden has appointed more new federal judges than former President Trump had at the same point in his term, and there are more still to come.

Why it matters: One of Trump's defining legacies was reshaping the federal judiciary. Since its earliest days, the Biden administration has been determined to maximize its own stamp on the courts.

It’s working — the Senate has confirmed more than 80 new judges since Biden took office. But conservatives still have a big advantage at the highest levels of the legal system.

By the numbers: Biden has appointed 58 new district court judges; Trump had appointed 26 at this point in his presidency, and he ended up with a total of 174.

District judges' rulings can be appealed to federal circuit courts. Biden has appointed 20 judges to the set of appeals courts that can hear hot-button cases; Trump had appointed 24 at the same point in his term, and he ended up with 54.

And at the Supreme Court, thanks to Trump’s three appointments, a conservative majority will likely continue to reign for decades.

The bottom line: Democrats aren't sleeping on the importance of the courts. The White House nominates new judges quickly when vacancies arise, and even with just one vote to spare, the Democratic Senate has confirmed those nominees at a brisk pace.

But if they lose the Senate in November, don’t expect Biden to match Trump’s 54 appellate judges. And any chance to pick up one more seat on the Supreme Court, much less two, will most likely belong to a future president.

Biden outpacing Trump with blistering pace of judicial confirmations

But conservatives still have a big advantage at the highest levels of the legal system.

Judges

President Biden has appointed more new federal judges than former President Trump had at the same point in his term, and there are more still to come.Why it matters: One of Trump&#x27;s defining legacies was reshaping the federal judiciary. Since its earliest days, the Biden administration <a class="gtmContentClick" data-vars-link-text="has been determined" data-vars-click-url="https://www.axios.com/2021/07/23/biden-judicial-federal-court" data-vars-item="in_content_link" href="https://www.axios.com/2021/07/23/biden-judicial-federal-court" target="_self">has been determined</a> to maximize its own stamp on the courts.

President Biden has made the COVID-19 crisis and a post-Trump return to national unity and traditional democratic ideals his top priorities. From vaccinations to stimulus to schools, Biden is seeking bipartisan compromise while showing a willingness to use executive authority and bare Democratic majorities in the U.S. House and Senate to implement his policies. Republican leaders are navigating deep party divisions over if and how to move beyond former President Trump.

Politics & Policy

Everything about last night's leaked draft of a Supreme Court ruling overturning Roe v. Wade is staggering.

Driving the news: Politico posted a story reporting that the court has voted to overturn Roe v. Wade — and published a leaked draft of that majority opinion, written by Samuel Alito.

If this is in fact how the court ultimately rules, abortion would immediately become illegal in at least 13 states, and more would almost certainly follow. New restrictions in other red states would make the procedure difficult to actually obtain even in many places where it might technically remain legal.

Women in some parts of the country, particularly the South, would have to travel hundreds of miles to reach an abortion clinic. That would disproportionately disadvantage poor women and women of color.

Even just a few months ago, there seemed to be a realistic chance the court would significantly constrain the right to an abortion without eliminating it altogether, at least in one fell swoop. But the draft Politico published says that "Roe was egregiously wrong from the start."

This draft — which is not necessarily final, but which is labeled as the opinion of the court — does not adopt any sort of reasonable-people-differ-but-here’s-the-law approach. It is a broadside.

This is the first time in modern history that a ruling has leaked before the court issued it publicly. 

Our thought bubble: These are the kinds of leaks you see in normal, electoral politics — from campaigns, from Congress and at times from within the executive branch. In those contexts, they're usually an effort by the leaker to either stop something from happening or embarrass the people who made it happen.

Remember that shortly after Chief Justice John Roberts voted to uphold Obamacare, the fact that he had changed his vote late in the process leaked quickly after the court announced its ruling. 

The bottom line: The immediate, potentially life-altering implications for millions of women would be enormous. For the court to so thoroughly and unreservedly toss out its own precedents would have history-altering implications for that institution. 

Nothing is final here. This leak will unleash months of intense public and political pressure on the justices to take a narrower tack.

Politico reported that five justices had voted initially to overturn Roe — Justice Sam Alito, who wrote the opinion, and Justices Amy Coney Barrett, Neil Gorsuch, Clarence Thomas and Brett Kavanaugh. 

CNN's Joan Biskupic quotes sources as saying Chief Justice John Roberts doesn't want to completely overturn Roe v. Wade — meaning he apparently will dissent, likely with the court's three liberals.

Democrats will spend the next several weeks hoping to peel a vote away from that majority or to push the court to adopt a more incremental ruling. 

That could work, but if five justices are willing to go this far, this fast, right now, then all Democrats can hope for would likely be to delay the inevitable. 

🏛️ New push on filibuster: Democratic candidates across the country are demanding the Senate eliminate the filibuster rule — then use 50 votes (plus Vice President Harris' tie-breaker) to pass a bill that would codify abortion rights into law.

Moderate Democrats, including Sens. Joe Manchin of West Virginia and Kyrsten Sinema of Arizona, have been staunchly opposed to nixing the filibuster. But progressives hope the Roe v. Wade bombshell will turbocharge momentum in the 50-50 Senate.

Supreme Court leak stuns nation

Everything about the leaked draft of a Supreme Court ruling overturning Roe v. Wade is staggering.

MSNBC screenshot of Politico Supreme Court article

Supreme Court

Top Stories

Everything about last night&#x27;s leaked draft of a Supreme Court ruling overturning Roe v. Wade is staggering.Driving the news: Politico <a class="gtmContentClick" data-vars-link-text="posted a story" data-vars-click-url="https://www.politico.com/news/2022/05/02/supreme-court-abortion-draft-opinion-00029473" data-vars-content-id="7488063e-69e5-4de7-b371-6c472e7c4e9d" data-vars-headline="Supreme Court leak stuns nation" data-vars-event-category="story" data-vars-sub-category="story" data-vars-item="in_content_link" href="https://www.politico.com/news/2022/05/02/supreme-court-abortion-draft-opinion-00029473" target="_blank">posted a story</a> reporting that the court has voted to overturn Roe v. Wade — and published a leaked draft of that majority opinion, written by Samuel Alito.

Clarence Thomas is suddenly, for the first time since his confirmation, the main character at the Supreme Court.

Why it matters: Thomas is more powerful than he’s ever been inside the court, and ideas that the legal establishment once treated as his quirky hobbyhorses now carry increasing weight.

Driving the news: Thomas handed down two bombshell opinions within 24 hours last week.

First came a majority ruling striking down strict limits on concealed weapons. The next day, he issued a concurring opinion in the court’s abortion ruling that said the justices should not only have struck down Roe v. Wade, but should also revisit other precedents, including the rights to contraception and same-sex marriage.

The big picture:  Thomas has spent years essentially laying out a whole parallel understanding of the law.  He’s one of the court’s most prolific authors of solo dissents, according to Adam Feldman of Empirical SCOTUS, and has also written a slew of solo concurrences similar to last week's.

Thomas doesn't just write a dissent here and an additional point about a majority holding there, but rather has created a whole ecosystem of opinions that build on and reference each other almost in the same way as the court’s actual precedents, except for the fact that they are all one man speaking only for himself.

Thomas’ solo opinion in last week’s abortion case cited 11 of his past opinions, 10 of which were solo opinions. It drew more heavily from the Clarence Thomas Cinematic Universe than from the rest of the court’s historical precedents, dissents and non-Thomas concurrences.

But as the makeup of the court has shifted around him, Thomas’ views have gotten more influential. And that influence will only grow.

“There’s this whole array of concurring and dissenting opinions that are now available for the majority on the court to take more seriously,” said Ralph Rossum, a professor at Claremont McKenna College who wrote a book about Thomas.

Thomas has been able to “plow the field and plant the seeds” that other justices would later “harvest” for their own majority opinions, even if they didn’t join Thomas at the outset, Rossum said. “You see that coming to fruition again on abortion,” Rossum said.

Details: The Supreme Court has protected rights to abortion, same-sex marriage, same-sex intercourse and contraception under the same legal doctrine, known as “substantive due process.”

Thomas rejects that entire theory, and so he would throw out every ruling that relies on it.

“That's classic Thomas. There isn't a justice on the court less committed to reliance on precedent than Thomas,” Rossum said. He said Thomas believes the court spends too much time interpreting its own work and too little time on the Constitution.

The court’s majority opinion in Dobbs, written by Justice Samuel Alito, did not say that substantive due process is altogether nonsense, as Thomas would have said. But it adopted a very narrow view of which rights the doctrine can protect. Outside of the conservative movement, it can seem like a distinction without a difference.

“Although Alito and Thomas are coming at it from different places, both are making arguments that suggest the fundamental rights that the court has protected should be rolled back,” said David Gans, the director of civil rights at the Constitutional Accountability Center, a liberal legal advocacy organization.

Behind the scenes: An important detail of the court’s inner workings has helped elevate Thomas.

Once the justices decide how they’re going to rule in a given case, the most senior justice in the majority decides who will get to write the ruling.

A lot of power rests in that assignment, and Thomas has rarely gotten to wield it — until now. On the 6-3 court, Chief Justice John Roberts is the only one more senior than Thomas. So any time Roberts joins the court’s liberals, and the rest of the conservatives stay united, Thomas will get to decide who writes the majority ruling. 

He can assign it to himself, if it’s an area of law he feels strongly about, or choose whichever of his colleagues he believes will get the closest to his own interpretation while still keeping the majority intact.

What’s next: Thomas’ newfound seniority and the court’s overall ideological balance aren’t going anywhere. And he will have ample opportunities to make his mark on the law.

Thomas has been an outspoken critic of affirmative action in college admissions — it’s one of the issues he seems to care about most deeply. The court has an affirmative action case already on the docket for its next term.

He’s also been a longstanding critic of the administrative state, an area of law where the court will likely be particularly active over the next several years.

The bottom line: “I think [the court] will continue to move in his direction — not as conclusively or as profoundly as he might want,” Rossum said, but enough that Thomas likely will be “extraordinarily influential going forward.”

Clarence Thomas is at the peak of his power

Thomas has been laying the groundwork for this moment for years.

Photo illustration of Justice Clarence Thomas with the Supreme Court forming his judge's robes. 

Photo illustration: Shoshana Gordon/Axios. Photo: Tasos Katopodis/Getty Images

Clarence Thomas is suddenly, for the first time since his confirmation, the main character at the Supreme Court.Why it matters: Thomas is more powerful than he’s ever been inside the court, and ideas that the legal establishment once treated as his quirky hobbyhorses now carry increasing weight.

Yesterday was the day Congress broke a seemingly intractable partisan logjam and passed the first significant gun-control legislation in years — and yet, yesterday may end up being a net loss for gun control.

Driving the news: Just hours before the Senate cleared a key procedural hurdle on its compromise gun-control bill, the Supreme Court issued a major ruling that will likely make it significantly harder to regulate guns.

In a 6-3 decision, the court struck down a New York law that set a high bar for people to get conceal-carry permits. The state had essentially required permit-seekers to prove that they faced unique dangers, greater than the risk that anybody would face, when out in public.

That’s a violation of the Second Amendment, Justice Clarence Thomas wrote, saying the right to bear arms includes a right to carry a gun for self-defense purposes outside the home.

The big picture: The loss that gun control advocates experienced at the Supreme Court may end up being bigger than the victory they experienced in the Senate. 

Details: The Senate passed its gun control bill last night by a 65-33 vote, and the House is expected to pass it ASAP.

The bill would expand background checks for gun purchasers between the ages of 18 and 21, and it provides incentives tor states to administer “red flag” laws.

It also would expand an existing policy that prohibits people who have been convicted of domestic assault from purchasing a gun. That ban had only applied to people convicted of abusing a spouse; now it will also apply to romantic partners who aren’t married.

Yes, but: Thursday’s Supreme Court ruling, in addition to invalidating New York’s concealed-carry regulations, will likely open the door to a host of new legal challenges to other state-level gun laws.

That could ultimately include challenges to state laws passed under Congress’ new bipartisan bill.

What we’re watching: California, Hawaii, Maryland, Massachusetts, New Jersey and Washington, D.C. have laws on the books similar to New York’s. Those will have to change.

Some state laws that survived legal challenges in the past — like restrictions on the size of guns’ magazines — could now be successfully challenged, University of Missouri law professor Royce Barondes told Reuters.

States can limit the right to bear arms, and the courts can uphold those limits, “only if” the law in question “is consistent with the Nation’s historical tradition of firearm regulation,” Thomas wrote in the court’s majority opinion.

It will be up to the courts to decide whether red-flag laws pass that test.

“The Court's Second Amendment ruling calls into question key parts of the Senate gun bill,” UCLA law professor and Second Amendment expert Adam Winkler tweeted. “Thomas says only gun regulations consistent with historical regulation of guns are permissible. Red flag laws, however, are a modern invention. So too bans on domestic abusers.”

And the bar for “historic” is high —Thomas acknowledged in the majority ruling that New York’s approach to concealed weapons was over 100 years old.

Chief Justice John Roberts and Justice Brett Kavanaugh joined Thomas’ opinion, but also made a point to note that they believe some restrictions — like background checks and licensing, in general — are OK.

What’s next: The court is widely expected to overturn Roe v. Wade within the next week, maybe even today. 

The justices will hand down opinions this morning beginning at 10 Eastern.

Editor's note: This article has been corrected to note that 33 senators voted against the bill, not 53.

Gun control takes 1 step forward in Congress, 2 steps back at SCOTUS

Gun-control advocates may have lost more at the court than they won in the Senate.

Illustration of a gavel coming down on crosshairs. 

Gun control

Yesterday was the day Congress broke a seemingly intractable partisan logjam and passed the first significant gun-control legislation in years — and yet, yesterday may end up being a net loss for gun control.Driving the news: Just hours before the Senate cleared a key procedural hurdle on its compromise gun-control bill, the Supreme Court issued a major ruling that will likely make it significantly harder to regulate guns.

Battles over the federal government's power will likely define a lot of the conservative Supreme Court's future.

The big picture: Abortion has been the single biggest animating force in the conservative legal movement for decades. Now that the Supreme Court has overturned Roe v. Wade — sooner than some advocates expected — other long-term projects will absorb much of the right’s legal and political energy.

That will likely include voting rights as well as a sustained effort to restrict the authority of regulatory agencies in the executive branch.

Why it matters: These cases may not always feel like blockbusters in isolation, but they can constrain federal power in ways that are almost impossible to reverse, with dramatic implications that cut across multiple policy areas.

Driving the news: Just in the past few months, the court …

Prevented the CDC from enforcing an eviction moratorium due to COVID.

Prevented OSHA from enforcing a vaccine mandate in workplaces.

Prevented the EPA from carrying out some of its most aggressive proposed limits on greenhouse gasses.

Some of those issues are bigger than others, but each of those cases raised questions about overarching legal principles related to executive-branch authority. 

Taken together, it's clear which direction things are headed — the federal government is going to be able to do a lot less than it has been able to do in the past. 

But the justices are not necessarily united on the specifics of how best to get there or how far to go.

How it works: Several of the court's conservative justices are highly skeptical of “Chevron deference” — the principle that, if a particular law isn’t clear on its face, the courts will generally defer to the interpretation of the agency tasked with implementing that law.

In striking down EPA regulations, the OSHA vaccine mandate and the CDC’s eviction moratorium, the court leaned heavily on a different but related legal test, known as the "major questions" doctrine. 

It holds that executive-branch agencies can’t rely on the general authority they’ve received from Congress in order to justify particularly sweeping actions. If Congress had intended for the CDC to be able to halt evictions all across the country, the court said, it would have needed to say so explicitly.

At the outer bound of this campaign is the "nondelegation doctrine" — a theory that Congress cannot delegate to the executive branch any of the powers the Constitution gives to Congress.

It's not carrying the day right now, but at least three justices seem to want to bring it back. When the court struck down OSHA's vaccine mandate, Justice Neil Gorsuch — joined by Justices Clarence Thomas and Samuel Alito — said that even if Congress had expressly given OSHA the power to impose a vaccine mandate, that likely would have been unconstitutional.

The bottom line: There are many ways for the conservative court to rein in federal agencies, and while there may not be a clear consensus on precisely which of those avenues to take at any given moment, one way or another, federal agencies exerting broad-based powers are already losing — and are almost certainly going to keep losing.

The Supreme Court's next target is the executive branch

The court is determined to rein in regulatory agencies.

Illustration of U.S. regulatory agency logos cut and pasted together.

Battles over the federal government&#x27;s power will likely define a lot of the conservative Supreme Court&#x27;s future.The big picture: Abortion has been the single biggest animating force in the conservative legal movement for decades. Now that the <a class="gtmContentClick" data-vars-link-text="Supreme Court" data-vars-click-url="https://www.axios.com/2019/06/01/supreme-court-justices-ideology" data-vars-content-id="e4f0d52d-a189-4bd1-b25c-8c24daae7788" data-vars-headline="The Supreme Court&#x27;s next target is the executive branch" data-vars-event-category="story" data-vars-sub-category="story" data-vars-item="in_content_link" href="https://www.axios.com/2019/06/01/supreme-court-justices-ideology" target="_self">Supreme Court</a> has <a class="gtmContentClick" data-vars-link-text="overturned Roe v. Wade" data-vars-click-url="https://www.axios.com/2021/10/31/roe-v-wade-repeal-supreme-court-texas-mississippi" data-vars-content-id="e4f0d52d-a189-4bd1-b25c-8c24daae7788" data-vars-headline="The Supreme Court&#x27;s next target is the executive branch" data-vars-event-category="story" data-vars-sub-category="story" data-vars-item="in_content_link" href="https://www.axios.com/2021/10/31/roe-v-wade-repeal-supreme-court-texas-mississippi" target="_self">overturned Roe v. Wade</a> — sooner than some advocates expected — other long-term projects will absorb much of the right’s legal and political energy.

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