“We should look for love!” Transportation Secretary Sean Duffy bellowed while flanked by his nine children at the Great American State Fair in June: “Get married, and have lots of kids!”

In a brazen attempt to make Duffy’s ethos a matter of policy, the Trump administration announced a strange new plan earlier this month tying a huge tranche of federal funding for public transit to high fertility and marriage rates. 

If the plan goes into effect, then communities with a high number of traditional nuclear families could get a 10 percent funding boost to build new trains, bus routes, and ferry lines. “If you want federal funding,” Duffy’s Transportation Department said in a statement, then “your project needs to align with where communities and families are actually growing.”

Trump, who has dubbed himself the “fertilization president,” and his bevvy of neopatriarchal trad–pilled deputies have long nursed a fixation with the country’s declining birth rate. But dubious as this new policy may be, it stumbles upon a genuine pain point in the nation’s public transit systems: They are not nearly as family friendly as they should be. And regardless of whether these discomfitingly pronatalist guidelines ever go into effect as written — and they probably will — they raise important questions about how American families use our transit systems now, and the policies could actually make their lives easier in the long run.

The same woes that affect all riders — long wait times, inaccessible stations, inadequate reach, and crowded rush hours — often doubly affect families. That’s one reason why so many of them have fled the nation’s densest, most transit-oriented cities in search of suburbs where they need not lug a stroller up yet another broken escalator to reach a subway platform.

Families who can’t afford to trade in their MetroCards and bus passes for minivans may find themselves priced into housing served by especially substandard transit options, funneling them into brutal, hours-long commutes. According to one landmark study, the single strongest factor in predicting social mobility in the US is neither crime nor test scores nor the presence of “traditional” two-parent households, but access to adequate transportation. With every extra minute a child spends commuting to school, they become less likely to move out poverty as an adult.

And for that reason alone, American families with kids do deserve special attention when it comes to how and where and why we build public transit. On this, the Trump administration got something right, even if they got there for all the wrong reasons — ones that I, a childless woman of childbearing age, find vaguely ethnonationalist, and above all, personally creepy. 

But families often need public transportation most in the places where it’s otherwise hardest to raise kids — which is to say in dense cities rather than in already car-centric suburbs. In that sense, especially, In fact, it might make circumstances even worse for the families that really rely on public transit every day.

What family-friendly public transit actually looks like

Marriage and birth rates might sound like a reasonable proxy for where families live, but in reality, according to an analysis by the Urban Institute, the places with the most “traditional” nuclear families tend to be whiter and wealthier than the population at large, and are much more likely to get around by car, not trains or buses. 

We are talking about the suburbs here, which, while certainly deserving of their own transit infrastructure, rarely rely on trains or buses the way that a carless family living on the outer edges of a major city might. And yet the Trump administration has typically treated those very communities — some of which do, in fact, have high birth rates — with contempt or even outright antipathy. 

Consider Chicago’s Red Line, the busiest corridor of the city’s L rail system, which serves some 138 million people per year. The line has long been in need of expansion, and a $5.7 billion extension close to 60 years in the making finally broke ground earlier this year. It will add 5.5 more miles of track with four new stations in the city’s southernmost neighborhoods.

For over half a century, families in the far South Side of Chicago have cobbled together grueling commutes that force them to transfer from buses and trains to reach downtown Chicago, which helps explain why unemployment and poverty rates in the area remain so stubbornly high. Communities like Roseland, where many of the new stations will be built, are considered to be among the most challenging places in the nation to raise a child, but thousands of local families still find ways to do so.

Roseland has a much higher birth rate than the national average, meaning that in theory, Duffy’s transportation department should be itching to send extra funds to transit projects there. But first they have to be willing to fund it at all, and if past policies hold, they may be reluctant to do just that. Just last year, the Trump administration opted to freeze federal funds already allocated to the Red Line extension, plunging the long-awaited project into yet another prolonged period of infrastructural purgatory. 

That move plays into a broader pattern: The Trump administration has hampered dozens of transit projects like the Red Line, seemingly in its broader push to starve Democratic-led cities of federal infrastructure dollars. While a federal judge eventually intervened to allow the Red Line extension to proceed, if the Trump administration’s new guidelines go into effect after public comments close in November, then more projects like it in other urban communities will likely be deprioritized. 

Ultimately, it is the suburbanites who are most poised to benefit from the Trump administration’s proposed policy.

An example is FrontRunner 2X in Utah, a commuter rail project that will slash travel time for Utahns traveling across the state, and will also help Salt Lake City shoulder an influx of tourists when it hosts the Olympics in 2034. It received federal support through the same tranche of funding as Chicago’s Red Line extension. In stark contrast with that more urban initiative, FrontRunner 2X has been the rare public transit project to receive continued support under the Trump administration.

Utah has some of the highest birth and marriage rates in the country, so it’s not a stretch of the imagination to say that if the Trump administration has its way, then the United States will see more projects like FrontRunner 2X get funded, while others like the Red Line extension face bureaucratic bottlenecks and funding freezes. Roseland’s high birth rate notwithstanding, the neighborhood has some of the lowest marriage rates in the country, meaning that even if a project there did manage to eke out federal support, then according to this new calculus, it would still receive significantly less funding from the federal government than a place like the suburbs of Salt Lake City where married families with children are more common.   

Trump’s new pronatalist transit agenda is, at the very least, an indication that after two years spent twiddling their thumbs, firing Amtrak executives, and venerating cars big and small, he may finally be building a semi-coherent transit strategy. And his Transportation Department has allowed a few genuinely family-friendly upgrades for the country’s transit infrastructure to proceed, including grants to add space for strollers on trains and buses.

But you can’t claim to support American families while siphoning federal dollars away from the projects that could actually be transformational to their lives. I am not one to decry a commuter rail renaissance, but it shouldn’t come at the expense of places where American families — the ones Duffy says he’s so keen on having more babies — don’t have any other choice but to wait an hour for the bus to get to work. 

In late September, Democratic Rep. Ro Khanna of California introduced the Free Child Care for America Act, an $80 billion-a-year proposal to make childcare free for nearly every family with kids under six. The bill would let families choose between sending their child to a daycare center, having a relative, friend, or neighbor paid a living wage to care for them, or taking a $1,000 monthly stipend to keep the child home for the first three years. It comes from a lawmaker who openly says he’s considering a run for president. “I want 2028 to be a big-ideas primary,” Khanna told ABC. “A contest on who’s going to have ideas of the future that meet the moment.”

Khanna’s is not the only big Democratic childcare proposal released in the last few months. In July, Project 2029 — a group of liberal policy experts developing an agenda for the next Democratic administration — proposed something similar to Khanna’s plan: giving families a choice between free daycare and $1,000 a month to provide care at home or pay a trusted caregiver. The group estimates that would cost about $200 billion annually. Third Way, a centrist Democratic think tank, unveiled its own universal childcare pitch, guaranteeing every family at least three affordable options within a 15-minute drive of home or work by expanding home-based, infant, and after-hours care, and leveraging employers as partners. 

Early childhood policy is quickly becoming a defining issue for 2028 hopefuls. On the right, Vice President JD Vance has staked out an early and controversial position, to pay married stay-at-home parents roughly $9,000 per child annually using existing federal childcare funds. On the left, Rep. Alexandria Ocasio-Cortez is spearheading a new House working group to develop a federal childcare plan. Kentucky Gov. Andy Beshear has been pushing free pre-K for all 4-year-olds, something California Gov. Gavin Newsom has already enacted in his state. And New York City Mayor Zohran Mamdani, who can’t run for president but is widely seen as an influential voice in the party’s future, has made universal childcare one of the top goals of his administration.

Michelle Lujan Grisham, the Democratic governor of New Mexico, recently told Semafor that any politician seeking to run for president in 2028 “absolutely should” run on universal childcare proposals. Last year New Mexico became the first state to offer free childcare to families regardless of income. Her advice echoed David Plouffe, a Democratic strategist who managed Barack Obama’s 2008 campaign, who said that universal childcare should be in the Democrats’ 2028 party platform.

This new wave of enthusiasm marks a pivot for an idea that has long been seen as a distant pipe dream in American politics. It wasn’t always that way: When women filled factories during World War II, the federal government funded thousands of daycare centers to watch their kids. In 1971, Congress actually passed a bipartisan childcare bill, though President Richard Nixon vetoed it, saying it would weaken the family. In the 50 years since, Washington lawmakers have focused their energies on other big battles, offering little on childcare beyond subsidies for some low-income families. Over that time, the US has fallen out of step with nearly all its peer nations around the world, which help parents pay for childcare, on top of offering paid parental leave after birth.

It’s not hard to understand why the idea is finally getting a serious look in the US. With voters citing affordability as a top concern, politicians are looking for ways they can bring down costs facing families. After paying rent or a mortgage, childcare often stands as many parents’ biggest monthly expense. Businesses have started to care too, as access to reliable care affects both people’s ability to hold down jobs and businesses’ ability to attract and retain workers. It’s why organizations like the Chamber of Commerce have taken up the issue and why red, blue, and purple states alike have been elevating childcare in recent years.

In Congress and in the Democratic campaign world, there’s a strong sense that childcare, long overshadowed by climate, infrastructure, voting rights, and health care, is now at the front of the line should Democrats regain power. Insiders credit both donor influence and a feeling that childcare advocates have duly waited their turn.

But as Democrats begin jockeying for 2028 and universal childcare becomes a rallying cry, it’s also become clear that there’s a big unanswered question at the heart of the politicking: No one yet agrees on what “universal childcare” actually means. Does it refer to care that’s totally free, or just affordable? Is it for everyone, like public school, or targeted at families below an income line? Does it start at birth, and include parents who stay home? Are employers involved, or neighbors and grandparents? 

The answers will determine who benefits, how much it costs, and whether the party’s next big promise to families is one it can actually keep.

What is universal childcare?

When I asked Rep. Khanna how he defines universal childcare, he said that it means “childcare should be free” and that families should have flexibility and choice of how to get that care. Workers, he added, should also be paid a living wage in a universal childcare system. 

Later, he described the vision for universal childcare as a public good, akin to public school. “From the time a child is born to the time they’re finished college,” he argued, America has the wealth to provide for kids’ education and development. 

Others, however, are defining the idea differently. Linda Smith, who leads Child Care Trust, a national policy think tank, helped design the military’s well-regarded childcare system and oversaw federal early childhood programs under Obama. Earlier this summer, she released a framework for universal childcare that emphasized it does not inherently mean free care.

Smith says she wrote it after realizing that even the legislative staffers drafting childcare bills didn’t mean the same thing by the term. “After some candid conversations with congressional staff this summer working on child care policy, it became clear that there are many interpretations of ‘universal child care,’” she wrote on LinkedIn. “If we can’t agree on what the term means, we can’t build durable policy around it.”

She argues the “universal childcare” slogan tends to blur three separate goals: universal access, universal affordability, and universal free care. To Smith, the urgent priority is access. Her vision for universal childcare policy would be a system where all families have access to “affordable, high-quality options” that reflect their needs. Her organization estimates that about 4.2 million children under six with all available parents in the workforce lack a childcare slot within a reasonable distance of home, and she warns that cutting costs without adding new supply could worsen shortages and leave families without available options.

Her answer is a mix of building more supply and sharing the cost. She recommends families paying what they can and employers and government covering the rest. Spreading the cost across several payers, she argues, is likelier to sustain the full mix of care families actually use — including home-based care — than leaning on government or parents alone.

Chris Herbst, a childcare policy expert and professor at Arizona State University, told me he agrees with Smith that there’s no consensus regarding what universal childcare means today. Even in New Mexico, he pointed out, which is regularly touted as an example of universal childcare, a light work requirement exists for families to be eligible. “These are fluid definitions, and as such they are a bit up for grabs at the moment,” Herbst said. 

His own view is that a universal childcare system should make the subsidy easy to get and be guaranteed by law, so eligible families get it automatically instead of landing on waitlists when funding runs short.

Another childcare expert, Elliot Haspel, has embraced a definition closer to Khanna and Sen. Elizabeth Warren, arguing that universal childcare means all families can easily secure the type of care they want, and pay no fees to do so. He acknowledged, though, that many things can be called “universal” and be technically correct. “The ambiguity of the term is both what lends it rhetorical power and what can present a major weakness,” he writes.

Some states are adding benefits — but avoiding “universal”

With federal childcare legislation stalled, many states have spent the past few years trying to patch the system themselves. Some states are investing in making care cheaper for families, others in paying childcare workers more, and most in trying to get more providers to open their doors.

The National Conference of State Legislatures has also aimed to get involved. Over the course of a year and a half, state lawmakers across 13 states worked together to hash out a bipartisan policy framework for strengthening childcare systems, a rare cross-party effort on the issue. The NCSL report, released this past summer, steers clear of the term “universal childcare,” but does describe state systems under strain and concludes that incremental fixes alone are unlikely to solve it. The lawmakers stressed there is no one-size-fits-all solution and offered a menu of options organized around seven priorities, from expanding access to investing in the childcare workforce.

In interviews with the working group’s two co-chairs, I asked why their cohort stayed away from the “universal” language. Jim Burgin, a Republican state senator from North Carolina, told me he doesn’t find it to be a helpful term because it could conjure up the image of public schools, which are mandatory and government-run. “I don’t like the term,” he said. “I think we ought to have safe, affordable childcare available to everybody and I don’t want everybody to immediately think we’re setting up government indoctrinated childcare…a lot of people would just push back from that.”

The Democratic co-chair, Washington state Sen. Claire Wilson, said her hesitation was more about precision. “When you say ‘universal’, I think that alone is a question about what do we mean by universal?” she said. In Washington, she explained, it means care open to all families regardless of income, employment status, or immigration status, “but for other states, universal may mean something different.”

Where the public stands

Polling suggests Americans do want to see lawmakers take action on childcare, even if it’s not voters’ top priority when asked to rank among different issue areas. An AP-NORC poll from last year found about three-quarters of Americans say childcare is a “major problem,” and majorities across both parties backed federally funded “free or low-cost” daycare. More recently, YouGov and the 19th News found 52 percent of Americans think the federal government should increase its spending on childcare.

The evidence that most Americans want childcare to be free rather than affordable is less clear. The recent YouGov/19th News found about 40 percent of Americans think parents and government should share in the cost of daycare, compared to 21 percent who thought the government should pay the full cost, and 26 percent who thought parents should cover it all.

A recent New America survey found similar results. When asked if K–12 public education should be a free, taxpayer-funded right, 60 percent of respondents agreed. But only 38 percent said the same of childcare. And among those who “somewhat” or “strongly agree” that childcare should be offered to families for free, paid by taxes, and considered a right, only 31 percent of independents agreed, and just 23 percent of Republicans.

Lena Bilik, a childcare researcher at the Roosevelt Institute, a progressive think tank, told me she thinks public opinion will shift more in favor of free universal childcare when public programs can demonstrate a track record of success, as the country saw with Social Security and more recently the Affordable Care Act. “If we build high-quality public goods that work, I think that with time that problem solves itself,” she said. “But they have to be well-resourced.”

The politics ahead

While states like New Mexico, Vermont, and Connecticut have taken major steps in recent years to expand access to affordable childcare, Bilik of the Roosevelt Institute said even those places vary in how explicitly they pursue the goal of universal childcare, or define it.

The last time Democrats went big on childcare, via the Build Back Better Act, they failed. The bill packaged much of the Democratic agenda into one piece of legislation — climate, healthcare, housing — with childcare bundled alongside paid family leave, elder care, universal preschool, and an expanded child tax credit. It collapsed in late 2021 after talks with West Virginia Sen. Joe Manchin fell apart. 

When I interviewed lawmakers, advocates, funders, congressional aides, and policy experts in 2024 about what lessons they drew from that experience, I found the field divided over strategy. Childcare never got a vote of its own, and the argument ever since has been whether it should have been pulled out and pursued separately. Some argued activists should have narrowed their focus to one or two care priorities. Others saw that critique as premature capitulation, a sign of a limiting “scarcity mentality.” Many of those advocates emphasized that they had come very close to passing everything, losing in the Senate by a single vote, and pointed to the climate movement, which took decades of sustained organizing and spending to win major federal legislation. Care advocates, they said, just needed to keep pushing.

Two years later, the consensus view among Congressional Democrats and national childcare advocates has shifted, with far more now saying what’s needed first and foremost are “big and bold” solutions that the party can run on — even bigger than the ideas laid out in the Build Back Better Act.

Sen. Elizabeth Warren argued this year that childcare failed in Build Back Better because not enough Democrats were “willing to fight for it” and because the $400 billion proposed spending package for childcare and universal pre-K wasn’t nearly big enough. It was “an exercise in how weak and ineffective we could make the childcare program and still call it childcare,” she said. 

Bilik has watched the same change from the research side. The coalition she works with, she told me, has moved away from programs that help only families below a certain income. “What I’m excited about is that we’ve gotten more ambitious with our proposals across the board since Build Back Better,” she said. “We’re finally having conversations about whether implementing something halfway will cause more problems than solutions, so I think the field has moved really far towards being open to a true public program.” 

These sentiments are reflected in the recently released Khanna bill, the Project 2029 proposal, and comments over the summer from Democratic Rep. Sara Jacobs, who said free childcare for all should be at the top of the House’s legislative agenda if Democrats take control after the midterms. 

How that vision translates into legislation remains an open question. Some advocates I talked to for this story, who spoke off the record to describe private coalition conversations candidly, said they worried their allies were going to make the same mistake of over-promising and then failing to prioritize goals when faced with tough budget realities. Should Democrats take power, leaders will also face pressure to restore Medicaid and SNAP funding, expand ACA subsidies, and address housing costs, all while large federal deficits make new spending harder to finance.

Khanna told me his proposals could be funded by shifting priorities away from increased military spending, particularly the $200 billion increase in the Pentagon budget and the war with Iran. The Project 2029 proposal suggests financing through raising the corporate tax rate, repealing the pass-through business tax deduction, and reforming estate taxes and the “stepped-up basis” tax break on inherited assets. Third Way would also fund its plan partly through a corporate tax increase. But those same dollars could be claimed by other Democratic priorities, which means childcare advocates may end up competing for them.

“Everyone is excited to put out the biggest idea, but there’s no real conversation about how to get there, and I feel like that’s the frustration, where ‘how to get there’ just means electing Democrats and demonizing any incremental progress,” one advocate told me. “That is not a strategy.” 

For now, think tanks, presidential hopefuls, and congressional working groups are testing the waters, floating ideas that meet families where they are and, in some cases, go further than what voters say they want. The practical details are unlikely to get settled once the 2028 race is fully underway. If a Democrat wins, the window will narrow further, with unresolved details colliding with other priorities in the first months of a new administration.

“Universal childcare” may remain an amorphous term, meaning free care to one politician, shared costs to another, and a menu of state options to lawmakers who avoid the word altogether. But all of us voters should expect to hear much more of it.

This work was supported by a grant from the Bainum Family Foundation. Vox Media had full discretion over the content of this reporting.

Update, October 21, 11:45 am ET: The Supreme Court released a brief order on October 21, which ruled against the Trump administration’s request to deny gender-affirming care to transgender prisoners. The order is two sentences long. It is temporary. And it does not explain the Court’s reasoning. So it is not clear why the Court ruled against Trump or even whether Trump will lose if this case reaches the Court again after it has be fully litigated in lower courts. Justices Clarence Thomas and Samuel Alito dissented. The article below was originally published on October 13.

On the first day of his second term, President Donald Trump issued an executive order requiring the Bureau of Prisons to “ensure that no Federal funds are expended for any medical procedure, treatment, or drug for the purpose of conforming an inmate’s appearance to that of the opposite sex.” Issued alongside a record 26 other orders that day, it was an unsurprising development, because Trump had made this issue one of the centerpieces of his 2024 campaign.

The fate of that executive order, as well as the US Bureau of Prisons’ (“BOP”) memoranda implementing the order, is now before the Supreme Court in a case called Trump v. Kingdom. And, while this case obviously has high stakes for incarcerated transgender people specifically, the Court’s resolution of this case could potentially have far greater reach — cutting off many cis and transgender people’s access to healthcare while they are incarcerated.

That’s because one of the central questions in Kingdom — though this issue is not yet before the justices — is when the Constitution requires prisons to provide medical care to incarcerated people. In Estelle v. Gamble (1976), the Supreme Court held that the Eighth Amendment’s ban on “cruel and unusual punishments” imposes on the government an “obligation to provide medical care for those whom it is punishing by incarceration.” People in prison, after all, cannot simply drive themselves to the hospital if they get sick. If the prison does not give them adequate medical care, they will suffer untreated and potentially die.

For procedural reasons, the Court is unlikely to opine on whether Estelle requires prisons to provide gender-affirming care to trans people right away. But the question of when the Eighth Amendment requires prisons to provide medical care to incarcerated people is front and center in the Kingdom case, which means the Court could potentially use Kingdom to limit all imprisoned people’s access to healthcare — or even to undercut the Constitution’s protections against cruel and unusual punishments more broadly.

Ironically, this case also arises out of a famous political blunder by pro-trans advocates. In 2019, when then-Sen. Kamala Harris was seeking her party’s 2020 presidential nomination, the ACLU circulated a questionnaire to candidates that asked if they would use presidential authority “to ensure that transgender and nonbinary people who rely on the state for medical care — including those in prison and immigration detention — will have access to comprehensive treatment associated with gender transition, including all necessary surgical care?” 

Harris responded that she would, and also said that she “pushed the California Department of Corrections and Rehabilitation to provide gender transition surgery to state inmates” while she was state attorney general. 

Years later, during his 2024 debate with Harris, Trump claimed that the then-vice president “wants to do transgender operations on illegal aliens that are in prison.” And not long after, his opposition to gender-affirming care for trans people in prison became a key part of his campaign.

It’s unclear why the ACLU thought it was a good idea to shine a light on this issue in 2019 because, at the time, the BOP provided gender-affirming care to people in federal prison. The ACLU — which represents the pro-trans side in the Kingdom case — now argues that transgender people in federal prison have had access to at least some forms of gender-affirming care “since at least 1992.”

Indeed, Trump’s own administration concluded in a 2018 memo that the Bureau of Prisons’ “statutory mandate to provide basic medical and mental health care” to incarcerated people obligated it to provide “pharmaceutical interventions (e.g., cross-gender hormone therapy), hair removal and surgery (if individualized assessment indicates surgical intervention is applicable)” to transgender people in prison if their doctors determined that these interventions are “medically necessary care.”

In any event, regardless of why Trump fixated on cutting off trans healthcare for people in federal prison, Kingdom is now before the Court. That means that the fate of trans people in prison — and, if the Eighth Amendment issue eventually reaches the Court, all incarcerated people — is now in the hands of a Republican Court that is often hostile to trans litigants, and that has, at times, signaled that it wants to drastically roll back the scope of the Eighth Amendment.

What are the legal issues in the Kingdom case?

At least since Estelle, the Court has held that people who are incarcerated are not also sentenced to live and die without medical care. As the Court said in Brown v. Plata (2011), “a prison that deprives prisoners of basic sustenance, including adequate medical care, is incompatible with the concept of human dignity and has no place in civilized society.”

Under Estelle and Brown, transgender people often have a right to gender-affirming care during their incarceration. As the US Court of Appeals for the Ninth Circuit held in Edmo v. Corizon (2019), such a person must show that they have a “serious medical need” for such care — typically by demonstrating that the care was prescribed to them by their health provider. But the Constitution does not permit prisons to deny medically necessary care to incarcerated people.

In Kingdom, the ACLU raised this Eighth Amendment argument in the lower courts, but those lower courts ruled in favor of transgender people in prison on different, much more technical legal grounds.

For over three decades, from at least 1992 to 2025, according to the ACLU’s brief to the justices, the BOP provided at least some gender-affirming care, including hormone therapy, to transgender people. This matters because, when a federal agency changes its policies, a federal law typically requires it to “examine the relevant data and articulate a satisfactory explanation for its action, including a rational connection between the facts found and the choice made.” This explanation often must explain the agency’s justification for “disregarding facts and circumstances” that justified the previous policy.

Both the ACLU and the lower courts that heard Kingdom argue that the Trump administration did not comply with this obligation when it cut off care for trans people in prison. 

Among other things, the district court that heard this case determined that the administration cited “zero evidence from its own medical or mental health care professionals to support its conclusions” against providing transgender healthcare. While the Trump administration argues that providing gender-affirming care makes prisons less safe, the district court also noted that “the government has not cited a single instance of gender-affirming care giving rise to safety concerns despite having provided such care for many years.”

Is this a persuasive legal argument against the Trump administration’s new policy? I think it is. And so did three federal judges that previously heard the Kingdom case. But the fate of trans people in prison is now in the hands of a Supreme Court that rarely rules in favor of transgender litigants, and that has a history of handing down legally incoherent opinions that are inconsistent with the Court’s own precedents, and that also deny legal rights to trans people.

The current Court’s uncertain commitment to the Eighth Amendment

Because the lower courts that heard Kingdom did not rule on the Eighth Amendment question, Kingdom should not currently give the justices an opportunity to roll back Estelle. But, in the likely event that this Court rejects the ACLU’s argument that the Trump administration did not adequately explain its new policy, the case will return to the lower courts and the Eighth Amendment issue will be fully litigated — teeing up the Eighth Amendment question for the justices to decide in the near future.

This issue could arise, moreover, at the exact moment that some justices are pushing for sweeping changes to how their Court understands the term “cruel and unusual punishments.” Indeed, at least some of the Supreme Court’s recent Eighth Amendment precedents suggest that the Republican justices want a wholesale rewrite of the Court’s previous precedents laying out what constitutes cruel and unusual punishment.

Since the mid-to-late twentieth century, the Court has held that, in Chief Justice Earl Warren’s words, the Eighth Amendment “must draw its meaning from the evolving standards of decency that mark the progress of a maturing society.” Thus, as certain forms of punishment grow more uncommon, they become more constitutionally dubious.

This “evolving standards of decency” framework is front and center in nearly every major Supreme Court decision interpreting the Eighth Amendment for the last five or six decades, including Estelle.

In Bucklew v. Precythe (2019), however, the Court’s Republican majority seemed to abandon this framework. Although decades worth of pre-Bucklew decisions established that a punishment is unconstitutional if it is considered cruel and unusual today, Bucklew suggested that a method of punishment is unconstitutional only if it “had fallen out of use” at “the time of the founding.” 

Bucklew did list some methods of punishment that fail this test, but they are things like “disemboweling” or “burning alive.”  

Thus, if taken seriously, Bucklew’s new approach to Eighth Amendment cases would dramatically expand the government’s power to impose harsh punishments. The late Justice Antonin Scalia, for example, argued that a Bucklew-like approach to the Eighth Amendment does not prohibit the government from executing most intellectually disabled offenders, and that it does not limit the government’s ability to impose excessive punishments for minor crimes.

In fairness, some of the Court’s post-Bucklew decisions are inconsistent with the framework the Court laid out in that case. So at least some of the justices who joined Bucklew may have since decided that it’s a bad idea to toss out the Court’s entire framework for Eighth Amendment cases. But Bucklew was one hell of a warning shot over the bow of the Eighth Amendment. And the mere fact that the Bucklew decision exists means that advocates for humane punishments must hold their breath any time this Court is asked whether a particular punishment is cruel and unusual.

In the worst-case scenario for people in prison, a case like Kingdom could inspire the Republican justices to overrule — or, at least, drastically limit — decisions like Estelle and Brown. That would mean that all incarcerated people, regardless of their gender identity, could lose access to medically necessary care unless the government decides to give it to them as an act of grace.

Late last month, the state of Tennessee attempted to execute Christa Pike, a woman who has been on death row for decades after killing a classmate as a teenager. 

The execution failed: Pike survived two doses of the lethal injection drug pentobarbital, making her the first person ever to do so.

The botched execution comes at a strange moment for capital punishment in America. Support for the death penalty has been declining for decades. And for a long time, the number of executions was falling, too. But since 2021, executions have been increasing again. The recent surge has been driven largely by one state: Florida.

According to Pamela Colloff, who covers the criminal justice system for ProPublica and wrote about Florida’s use of the death penalty for New York Times Magazine this summer, 40 percent of the executions conducted in the US last year were in Florida.

“There are so many things that make the administration of the death penalty interesting and unique in Florida,” Colloff explained on a recent episode of Vox’s The Gray Area podcast. “Among active death penalty states right now, Florida is unique in that one person determines, from the hundreds of men on death row, who will receive an execution date, and what that execution date is.”

I spoke with Colloff earlier this month following Pike’s failed execution about what happened in Tennessee, what’s driving Florida’s recent zeal for executions, and why victims’ families are often unsatisfied by the death penalty process. 

Below is an excerpt of our conversation, edited for length and clarity. There’s much more in the full podcast, so listen to The Gray Area wherever you get podcasts, including Apple Podcasts, Pandora, and Spotify. (This interview also appeared more recently on Vox’s Today, Explained podcast.)

We’re taping shortly after news came out that a woman in Tennessee who was on death row, authorities attempted to put her to death. They gave her two doses of lethal injection medication, and she survived. 

How much of the decline in the use of the death penalty has to do with, in your estimation, people feeling like there’s no way to do it that’s humane? 

This is the second botched execution in Tennessee this year, just to give you a sense of things. This is more common there than in other states. They’ve changed their drug protocols and we don’t know a lot about what went wrong with Christa Pike. In May, it was an issue with accessing veins, which can be an issue with lethal injection. 

I think it’s also important for people to remember that we had the electric chair as the method of execution through the ’80s and into the ’90s in some places. While [lethal injection] is considered a far more humane, quote-unquote, way to do this, we can see that nothing is perfect. 

I will say that while the issues of botched executions are very important, and I think there are some other ones coming up to be concerned about, I am more interested in how it is that other errors are made, that other people end up with the ultimate punishment when that perhaps was not the right punishment for what occurred.

You’ve also written that death penalty convictions are just expensive, right? And on top of that, DNA evidence has made it clear that many of the people who were being convicted were not guilty, or there wasn’t strong enough evidence to convict them. How do you think about that mix of factors?

Florida, which I’ve spent a lot of time writing about, is the leading place in America by a mile in terms of the number of executions, and has a very large death row. Florida’s also the leader in wrongful death row convictions. Just to give you a sense of things, Florida holds the distinction of 30 death row exonerations.

What that means is in the modern era — the past roughly 50 years — there have been 30 men who were given dates of execution who now walk free. And for anyone who pays any attention to how the criminal justice system works and how incredibly difficult it is to overturn a wrongful conviction, if we have 30 people in Florida who have that distinction, we know that there are many more.

What’s going on in Florida? When did you realize that something was different there?

It really ramped up last year. Last year, Florida executed 40 percent of the people who were executed in the US in the last calendar year. In this year, there have been 16 men who’ve been executed in Florida so far. 

Just to give you a comparison, Texas is the next state with the highest number of executions, and they’ve executed six men in that time. We already have outlier states, primarily southern states, and then we have Florida being the ultimate outlier.

There are so many things that make the administration of the death penalty interesting and unique in Florida. The thing that fascinated me the most is, among active death penalty states right now, Florida is unique in that one person determines, from the hundreds of men on death row, who will receive an execution date, and what that execution date is.

Who is it?

Gov. Ron DeSantis. I went back and looked at what were the patterns here, what were the things guiding Gov. DeSantis’s thinking in setting these dates, and was fascinated to see and very troubled to see that there are a number of men who’ve been there so long.

They’ve been there since the 1970s. These are men who were convicted when Gerald Ford was president, just to make this real to people. But the dates are not being set among the men who are what are called death-eligible, meaning that they’ve gone through all their appeals. They aren’t being done chronologically.

There’s no rhyme or reason to the process. And so there’s this speculation game among victims’ families, prisoners, their advocates about who will be next. And men can sit there on death row for decades with that hanging over them, and that is a Florida phenomenon.

You wrote about Florida’s death row turning from something like a purgatory where people stay for a long time into something closer to an assembly line, right?

I was so struck by the fact that in Florida, in order to have this pace of executions, there were people who were receiving their dates 30 days, sometimes fewer, from their execution dates. 

Just to give people a sense of why that is unusual, there are so many things that kick into gear when a death warrant is written. There are numerous legal maneuvers and next steps that happen in the courts. To give you a quick example, there was one defendant in Florida this spring who, five days before he was scheduled to be executed, was finally granted the ability to test DNA evidence in his case that had gone untested.

He had great lawyers who didn’t sleep to make that happen, but that it came as close as five days to his execution date. I think that should give us all pause about how fast this is moving. 

You have multiple people in the queue at the same time. There’s a place — a different unit than Florida’s death row — that you’re taken to once you get your date, called death watch.

Tell me about death watch. What does it look like and what does it feel like?

Death watch is roughly 30 feet from the execution chamber. There are three cells. When you receive your date, you are taken from death row to death watch where you’re put — I don’t want to say solitary because if there are one or two other men who are held there — but you’re in a far different situation than you would be on death row where there are guards and other people you know.

From that point forward, there are roughly 30 days where you are held within steps of where this will take place. To me, it was chilling that when I was doing my reporting in the spring on the story that I published this summer, all three cells were filled, and as soon as one person was executed, the pattern was that often the next day a new death warrant would be signed, and there would be a new person in place.

Why do they do that? Why do they put these people next to the place where they’ll die?

That’s one of the many questions I had about that. We talk about not wanting to have cruel and unusual punishment. Our Constitution does not uphold that. But it’s such a unique kind of mental torture, I think, to be 30 feet from where you’ll be put to death.

The other thing I was struck by was the waiting aspect. If you’re on death row, again, you always have this hanging over you. I talked about the way in which, when you’re in that kind of sensory deprivation, you become highly attuned to sounds and smells and things like that.

I interviewed someone who’s not on death row anymore, whose sentence was commuted, who talked to me about recognizing that jangle of keys and the steps that this group of people who come to deliver the death warrant take, and knowing that someone is about to be served with a death warrant, but not knowing, “Is it me? Is it the guy next to me? Is it someone down the hall?”

I just want to say, I understand that there’s a counterargument to all of this, which is that these are people who most often committed terrible crimes. Their victims did not know when they were going to be killed.

I do think, however, as a state that administers this thing, there has to be a rhyme or reason to this. Otherwise, you have total chaos, including for victims’ families, who never know. Are they going to wait one month? Are they going to wait 15 years? They don’t know.