Policy / February 6, 2026
In this slice of Elijah v. UNITED STATESour justice correspondent explores the big legal news of the week, including Alito’s possible retirement. It’s also the latest target of the anti-trans crowd: tight clothing.
Members of the Supreme Court, including John Roberts, Samuel Alito and Elena Kagan, sit for a group photo.(Jabin Botsford/The Washington Post via Getty Images) Supreme Court Justice Samuel Alito has a new book coming out. It’s called How Watching Fox News Made Me the Worst Version of Myself.
Just kidding, I don’t care what is it called. (Very good. I can Google it. It’s called So ordered: an originalist vision of the Constitution, the Court and the country.) It’s my job to read such things and…I won’t read his book. They can’t force me. Life is really too short.
I’m talking about it because the book’s release is scheduled for October 6, 2026. It’s a curious date. The Supreme Court begins its 2026-2027 term on October 5, the first Monday in October. Alito’s book is expected to be released the next day.
One gets the impression that Alito has no plans to have a real job on the Tuesday his book launches and instead thinks he’ll be free to travel the country promoting it. For context, here are the publication dates of the last four sitting Supreme Court justices who published books:
Amy Coney Barrett, September 9, 2025
Neil Gorsuch, May 5, 2025
Ketanji Brown Jackson, September 4, 2024
Sonia Sotomayor, January 25, 2022 (a children’s book)
Current number
Sonia Sotomayor, September 3, 2019
It makes sense that the judges publish their books in September. You have all the attention on the upcoming term, but the judges are free to fly around the country, give lectures and do interviews to promote their books. May also makes sense, because the court then no longer hears cases, but simply writes and edits opinions.
The judges are busy in October. Probably too busy to sell a book.
The book’s publication date makes me think Alito plans to retire when the current Supreme Court term ends in July. This would give Trump and the Republicans who still controls the Senateit is time to nominate and confirm his replacement before the midterm elections.
Alito is watching television. He reads the newspapers. Even if the Republicans are still in favor of maintaining the Senate, this is far from certain. Alito will turn 76 in April. He accomplished most of the evils he planned to do, including overthrowing Roe v. Wade. With Republican poll numbers declining, I don’t think he wants to roll the dice and be forced to hang around if the Republicans lose the Senate this fall.
The publication date of his book is a giant tell-all. I think he’s leaving while the Republicans still have the political power to replace him with another Sam Alito, 30 years his junior.
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I hope I’m wrong about this. I don’t want Trump to be able to replace Alito with another Alito. He’ll probably retire by the end of Trump’s term anyway, but the best-case scenario would be for him to stay in office, far from the arrogant belief that Republicans will keep the Senate — and that he’s wrong about that.
The bully and the ugly
No matter what Tom Homan says, ICE is still on the ground in Minnesota, violating constitutional rights and threaten people with violence. It’s only a matter of time before they murder someone else. House Democrats demand Department of Homeland Security end warrantless home invasions. A federal judge temporarily blocked DHS Secretary Kristi Noem’s attempts to ban members of Congress from visiting ICE detention camps. Minnesota schools are sue DHS because of his invasion of schools and kidnapping and harassment of children. Arizona Republicans are fighting a Biden-era regulation that prevents uranium mining in the Grand Canyon. To recap: there are people who want to mine the fucking Grand Canyon. for uranium. There are enough of these people that Biden had to pass a sweeping federal regulation — granting the canyon and its surrounding area “national monument” protection — to stop them. Yet, undeterred, these people are now fighting this regulation in court. I just don’t know what to do with this information. Inspired Takes
New York City Mayor Zohran Mamdanani took The nation website at endorses Kathy Hochul for governor. I’m not there yet. (Disclosure: I personally know one of his main opponents, Antonio Delgado, from law school). I haven’t forgotten his attempts to force Hector LaSalle onto the state’s highest court or his habit of governing as a Cuomo-lite until a few months ago. The sitting mayor of New York trying to ingratiate himself with the sitting governor of Albany doesn’t move my needle. Two of my favorite hosts, Dean Obeidallah and Joy Reid, spoke with Laura Flanders at The nation to talk about abject failure major media. THE Boston Review organized a forum on “How Not Defeat authoritarianism” (emphasis added) who criticized the Democrats for their weak responses. It’s fire. The worst argument of the week
The Food and Drug Administration is targeting gender-affirming clothing. Specifically, Trump’s FDA sent letters to 12 companies who manufacture or sell chest compression garments, warning them that their products are considered “medical devices” and will be regulated as such. The FDA warned that the companies’ operations could be disrupted if they continued to “market them as a treatment for gender dysphoria.”
The war on transgender people now apparently includes tight clothing.
First, in case this needs to be said: Every item of clothing affirms gender in one way or another. Do you think I like wearing pants? No. I would happily leave my house in a kilt, commando style, because it’s much more comfortable. No, because cis-straight men wearing skirts are frowned upon in my culture. Ditto walking the streets without boxers. But I don’t see the FDA warning Fruit of the Loom that its products are now medical devices.
The FDA’s threats are not about what these products do (again, shapewear is ubiquitous in our society), but who wears them and why. And this is a purely content-based restriction that violates the First Amendment. It’s not possible that you’re allowed to market compression underwear to a cis woman who wants to play tennis, but you can’t market them to a trans man who… wants to play tennis. This is an unconstitutional restriction on expression.
It’s almost funny, in the sense that fascists getting angry over something small is always kind of funny. But it is also incredibly serious that these attacks on transgender people are so willingly carried out by Trump’s FDA. Keep in mind that the FDA also regulates medications and medical treatments, including hormone blockers and boosters that some trans people take. Treat trans people who want to take drugs differently from cis people who want to take them the same medications This is the unconstitutional – and deeply hypocritical – precedent of all these attacks.
I think if people understood that the right’s attack on hormones is just as stupid as the right’s attack on glorified Spanx, more people might support the concept that trans people should be treated equally under the law.
What I wrote
Trump and the Republicans will try to rig the upcoming midterm elections. Their plans are revealed. I argue that Democrats need a coordinated response to coordinated Republican attacks, and I have a pretty good idea where to start..
In news unrelated to the current chaos
A British court has ruled that stealing money in a video game can be treated like stealing money in real life. And I’m 100 percent here for it.
The problem occurred in the popular online game RuneScape. A developer, Andrew Lakeman, who worked for Jagex, the creator of RuneScapeallegedly used his access to the game to essentially hack into various players’ accounts. He is accused of stealing 705 billion “gold” from 68 players.
Most games these days have two types of currencies: “in-game” currency and “premium” currency. In-game currency can usually be earned simply by playing the game (defeating monsters, selling spare items, yada yada). Premium currency can usually only be earned by paying real money and purchasing the premium currency from the game’s developers. Sometimes games will let you earn premium currency by playing the game, and sometimes games will let you sell premium currency for in-game currency, but it’s best to think of these two currencies as separate: in-game currency is earned with your time, premium currency earned with your wallet.
No one would dispute this theft prime currency is theft because it is obvious that it has real value, as evidenced by the fact that game developers charge for it and players pay for it. But “gold” is RuneScape in-game currency. Most courts consider this currency worthless. Lakeman, the former developer, argued that he could not be charged under UK theft law because he had only stolen this worthless in-game currency.
But a British appeal court disagreed. The court ruled that each gold coin could be considered “property” of the players who earned them, even though the currency is functionally “infinite,” because Jagex can simply earn more gold whenever it wants.
It’s the right decision. Because when you steal in-game currency from people, what you’re actually stealing is time. Players spend a lot of time killing monsters, farming items, and earning gold for their characters in the game. Steal It East flight.
And “the market” knows that time is money, even in this case. Lakeman allegedly sold his ill-gotten gold for around $750,000 worth of Bitcoin. Why would anyone buy in-game currency for real money? Well, because it takes a long time to amass $705 billion in gold in the game of RuneScape.
Now if Lakeman had played RuneScapedefeated 68 players and collected 705 billion gold from their corpses (which you can definitely do in RuneScape), that would be good. It’s just… playing the game. As I’ve been told many times, while my character is dead, “Give to Godrub.”
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Elie Mystal Elie Mystal is The nationjustice correspondent and columnist. He is also an Alfred Knobler Fellow at the Type Media Center. He is the author of two books: New York Times bestseller Let me respond: A Guide to the Constitution for Black Men And Bad Laws: Ten Popular Laws That Are Ruining Americaboth published by The New Press. You can subscribe to his Nation newsletter “Elie c. US » here.