Dorf on Law

Habeas Shmabeas Says the Second Circuit (in a Footnote)

2026-07-27T07:00:00.000-04:00

In my most recent Verdict column, I offered some thoughts about a strange invitation for amicus briefing from the Board of Immigration Appeals (BIA). The BIA asked for views about whether it is bound by Supreme Court precedent "even in situations where an application of that precedent would require the Board to find a statute or regulation unconstitutional." As I explained in the column, of course the BIA is generally bound by Supreme Court precedent, but in certain circumstances that restriction can conflict with a prohibition on the BIA declaring acts of Congress unconstitutional. My column explained that there can be a conflict in cases involving as-applied challenges to federal statutes, depending on how broadly or narrowly one construes Supreme Court precedent.

In order to explore what I took to be an interesting question, my Verdict column took the BIA amicus invitation at face value, but I cautioned at the end that one must be mindful that the BIA could well be acting in bad faith, as it is now packed with Trump appointees. In today's essay, I'll say a few words about the case that appears to have triggered the BIA invitation.

The BIA invitation apparently arises out of removal proceedings involving Mohsen Mahdawi, a U.S. permanent resident who argues that Secretary of State Marco Rubio determined Mahdawi's continued presence in the U.S. was contrary to the country's foreign policy interests as retaliation against Mahdawi for his pro-Palestinian speech while studying for a master's degree at Columbia University. My best guess is that the BIA wishes to reject Mahdawi's First Amendment argument on the ground that accepting it would require it to declare a federal law or regulation unconstitutional, notwithstanding Supreme Court precedent limiting the government's power to engage in retaliation for free speech.

Because I regard the Trump/Rubio policy of removing lawfully present non-citizens in retaliation for free speech as unconstitutional, I would want the BIA to conclude with respect to Mahdawi's case that it is indeed bound by Supreme Court precedents regarding retaliation for free speech. I thus considered accepting the BIA's invitation and filing a short amicus brief to that effect. However, as I noted in the column, the stakes of the general question the BIA posed are mixed:

If the BIA seeks to avoid honoring immigrants’ statutory rights (and thus to defy Congress), it could broadly favor its obligation to follow precedent and downplay the prohibition on finding laws unconstitutional; it would then rule that it is merely applying binding precedent in refusing to honor statutory rights it deems unconstitutional.
Conversely, if the BIA seeks to defy judicial precedent recognizing constitutional rights that override some statute, it could broadly favor the prohibition on declaring laws unconstitutional and announce that the relevant judicial precedents are distinguishable from any case before it.

Accordingly, I'm not going to file with the BIA, although any lawyers reading this essay or the Verdict column are welcome to borrow any parts of my analysis they might find useful.

The Verdict column concludes by observing that any ruling by the BIA on the question it posed in its amicus invitation would be reviewable by the courts. But in the meantime, the courts--that is, a federal district court and the U.S. Court of Appeals for the Second Circuit--have already been involved. Upon his arrest, Mahdawi filed a successful habeas petition and was released from custody after spending 16 days in detention in the spring of 2025. The government appealed that release order, and last week the Second Circuit held that the habeas petition was improper.

The court said that 28 U.S.C. § 1252(b)(9) makes appellate review of a final order of removal the exclusive means by which Mahdawi can challenge the Rubio determination's constitutionality in federal court. In so ruling, it agreed with the Third Circuit's decision in Mahmoud Khalil's case. Then, two days after the Second Circuit decision in Mahdawi's case, a 2-1 panel of the Fourth Circuit reached a contrary decision in Suri v. Trump. Because there is now a clear Circuit split, a Supreme Court cert grant in one of these cases is reasonably likely. For now, I'll focus on the Mahdawi case, but the balance of this essay is relevant to the common issue in all of these cases.

In light of the text of § 1252(b)(9) alone, the holding of the Second Circuit (and of the Third Circuit) is reasonable. However, Mahdawi also invoked the Supreme Court's 2018 decision in Jennings v. Rodriguez, which held (en route to a decision unfavorable to the immigrant respondents) that § 1252(b)(9) should not be read to block federal court adjudication of every case in which an attempt to remove a noncitizen is the but-for cause of the challenge. The Second Circuit distinguished Jennings, concluding that the Rubio determination in Mahdawi's case was more closely intertwined with his habeas petition than the claims in Jennings. That too is plausible, although a closer question.

The question is closer still, and the Second Circuit strikes me as incorrect, in light of a further point Mahdawi raised in a footnote that the Second Circuit in turn addressed in its own footnote: relegating detainees to raising their constitutional claims only by means of a challenge to a final order of removal could violate the Suspension Clause; thus, the argument goes, the court should have invoked constitutional avoidance to read § 1252(b)(9) as not to preclude a habeas challenge to detention pending removal. To my mind, this objection should have been persuasive.

The Second Circuit nonetheless rejected the Suspension Clause avoidance argument. That was partly because the court thought that the footnote in Mahdawi's brief was inadequate to raise the issue for appellate review, but the court also opined on the merits of the argument. It denied that there is "any ambiguity in § 1252(b)(9)" that could be construed to avoid the constitutional question. That strikes me as wrong, given that the Jennings Court has already said that § 1252(b)(9) does not apply to every conceivable case.

The no-ambiguity reading is also belied by the fact that the Fourth Circuit in Suri thought that the best reading of § 1252(b)(9) does allow habeas actions challenging detention on First Amendment grounds. The dissent in Suri said that an avoidance argument rooted in the Suspension Clause was "[l]urking in the majority's analysis," but the Suri majority did not expressly rely on constitutional avoidance or the Suspension Clause. If two appeals courts can find that the same language means different things, that bespeaks ambiguity.

Meanwhile, the Second Circuit approach is at odds with the practice of the Supreme Court to find ambiguity in seemingly categorical language when Suspension Clause issues are raised. For example, in INS v. St. Cyr, the Court applied constitutional avoidance to allow a habeas petition by a noncitizen challenging removal notwithstanding statutory language that seemed to preclude it, prompting a dissent by Justice Scalia accusing the majority of "fabricat[ing] a superclear statement, 'magic words' requirement." Section 1252(b)(9) contains at least as much ambiguity as the statute at issue in St. Cyr.

Echoing the Third Circuit and presaging the Fourth Circuit dissent, the Second Circuit's footnote offered an additional reason for rejecting the Suspension Clause argument. Even where there is a constitutional right to habeas under the Suspension Clause, the court noted, Congress may provide an adequate substitute for habeas. Mahdawi, the court went on, had not met his burden of establishing that the opportunity to file a petition for review of a final order of removal is an inadequate substitute.

One might think that makes sense in a case like Mahdawi's, because he is not currently in detention. He will be able to present the argument that his detention and removal violate the First Amendment in his petition for review of his final removal order. That petition is currently pending in the First Circuit.

Mahdawi was originally detained in Vermont, which is why his habeas case ended up in the Second Circuit. His petition for review is in the First Circuit because the immigration proceeding was in Massachusetts. There might be reason to doubt that it can proceed now, given that there may still be administrative proceedings (as evidenced by the BIA invitation of amicus briefs), but those precise details need not concern us now. The important point is that whenever there is a final removal order, Mahdawi will have an opportunity to challenge its constitutionality in federal court. That, the Second Circuit, Third Circuit, and the dissent in the Fourth Circuit all say is an adequate substitute for habeas.

But they're all pretty plainly wrong about that. Yes, Mahdawi is not currently in custody, but if the Second Circuit is right, then even when he was in custody, he should have had no ability to file habeas or its equivalent to challenge the lawfulness of the custody. And under the logic of the Second Circuit (and the Third and the dissent in the Fourth), that would be true whether the detained immigrant remained in custody pending removal for 16 days, 16 weeks, 16 months, or 16 years.

Finally, no one contends that process within the executive branch is an adequate substitute for habeas. The Second Circuit, the Third Circuit, and the dissenting judge in the Fourth Circuit all contend that the petition-for-review process is the adequate substitute. But because that comes only after a final order of removal, it inevitably delays consideration of a petition for months or years after the initiation of proceedings. Immigrants detained for any substantial amount of time during that period have no ability to challenge their detention as such, even where, as in these cases, they present very strong constitutional objections. That's hardly an adequate substitute for habeas.

--Michael C. Dorf

Bad Argument Follow-Up: They Actually Believe It

2026-07-24T11:05:26.477-04:00

In Professor Buchanan's "Veganniversary" essay yesterday, he referred to a variety of bad arguments against veganism, locating them within the larger culture that of late celebrates what many readers (and this writer) still regard as toxic masculinity. As it happens, I recently had occasion to encounter another familiar bad argument, which I'll describe as a way of making a point about the nature of strong beliefs.

I've just completed a six-day bicycle tour of Counties Kerry and Cork in Ireland. It was part of an organized trip that included me, one of my adult daughters, two guides, and seven strangers who soon became friends. We all got along very well and had a splendid time. At various shared meals, I was given different food items from the standard fare, so it quickly became known that I'm a vegan. Mostly this went unremarked but at one point during the middle of the trip, one of the other cyclists, who, I should emphasize, is a very smart person with good values, said to me, unprompted: "I feel like I shouldn't eat meat because those are animals . . . [long pause] . . . but then I think that animals eat animals."

Not wishing to be that vegan, I nodded and smiled. As gently as possible, I said "okay, but the animals humans eat tend to be herbivores." The topic didn't come up again.

Now, if I were teaching a class in which someone said it's morally unproblematic to eat animals because animals eat animals, I might have asked whether they generally take their ethical cues from the behavior of nonhuman animals. Various nonhuman animal species routinely practice infanticide, rape (including via traumatic insemination), cannibalism, and other horrors. Presumably ethical people would not think that would justify any of those practices by humans.

I bring up this conversation only because it's very recent. I have encountered the animals-eat-other-animals justification for human consumption of nonhuman animals many times before. There's a whole chapter on this argument in Sherry Colb's 2013 book, Mind if I Order the Cheeseburger? It is such a bad argument that one wonders whether the people who make it actually believe it or if it is simply a self-serving rationalization. And that brings me to my main point: They believe it, and it is a self-serving rationalization.

When someone offers a very bad reason for holding a belief, it is tempting to think they do not really hold that belief but are simply offering an excuse. That can be true but it often isn't, especially when the belief was not adopted in response to rational argument but was inculcated through practice, social pressure, and/or indoctrination. Religious belief typically works this way but so do all sorts of other beliefs, including the belief that it is morally unobjectionable to eat animals, which hits the trifecta: in our culture, the vast majority of people: (1) are fed animal products from early childhood; (2) receive constant social cues that eating animals is normal; and (3) are indoctrinated into the belief through stories and slogans (such as the "circle of life"). Thus, for the vast majority of people, anti-veganism (or speciesism, carnism, or call it what you will) is a very strong belief that is central to their identity.

"It is well known that people often resist changing their beliefs when directly challenged, especially when these beliefs are central to their identity." That's a quote from a 2016 academic paper published in Nature and reporting on a study that looked at the neurological basis for the phenomenon using fMRI. The study compared resistance to changing political versus non-political beliefs but did not look specifically at beliefs about eating animals. That's fine for my purposes here, because I want to segué to political beliefs. The study found that people were especially resistant to changing strongly held political beliefs in response to challenges (such as contrary evidence or arguments).

Putting all of this together, we see how people can sincerely believe very bad arguments. Suppose Peter strongly holds identity-defining belief X because it was inculcated through practice, social pressure, and/or indoctrination. Jane confronts Peter with evidence and arguments that call X into question. Peter resists Jane's evidence and arguments by constructing counterarguments that rationalize X. Peter believes these objectively bad counterarguments because of Peter's antecedent and sticky belief in X. This works whether X is Republicans will keep me safe, eating animals is morally acceptable, the Bible is a sensible source of moral guidance, or any other belief, so long as it is strongly held and identity-defining.

There is a substantial body of literature on how to overcome resistance to belief challenges. It mostly finds what one would expect: Try to present your evidence and arguments in a way that doesn't threaten your interlocutor's identity. I'm going to put that point aside today, although I think it's very important for advocates for any cause. My focus here is on the beliefs, arguments, and evidence in the first place.

Finally, I should offer an admission and a word about outliers. The confession is that I am sure what I have described applies to me as well. I like to think I subject my beliefs to rational evaluation and re-evaluation, but part of the phenomenon I've described is that it operates as a kind of filter, so I'm undoubtedly under-counting evidence that contradicts some of my own strongly held core beliefs.

Now the word about outliers: I have been considering how beliefs and resistance to belief change operate in most people. I am not addressing pathological liars, psychopaths, or bullshitters.

--Michael C. Dorf

Veganism, Year Eighteen: Disinformation and the Malign Motives of the Meat Men

2026-07-23T15:55:39.075-04:00

Eighteen years ago tomorrow, I published a Dorf on Law column announcing that I had become a vegan. Since that day, I have faithfully published yearly veganniversary columns -- 2025, 2024, 2023, 2022, 2021, 2020 plus followup, 2019 plus followup, 2018, 2017, 2016, 2015, 2014, 2013, 2012, 2011, 2010, 2009, as well as the original column in 2008 plus followup. What to say this year?

I continue to be amazed by how much invective is thrown at vegans. I have of course highlighted examples of such bile over the years, largely to point out that (as Professor Colb used to remind me) such attacks would not be happening if we vegans were having no impact. Usually, the invective comes from obviously ignorant sources, as I will discuss at length below, but sometimes it amounts to something akin to "friendly fire."

Because Stephen Colbert's show was yanked off the air by the Trumpists running CBS, I am hesitant to point out that Colbert was sometimes one of the more annoying people on the left who simply could not resist mocking vegans. I took aim at one example of that nervous tic in my 2017 veganniversary column, and earlier this year he unfortunately could not stop himself from going out on a sour note. A few weeks before his final show (on April 15), his monologue included this (starting at about the 2:14 mark, transcript from YouTube):

Ooh, there's uh there's more uh tough news to chew on. Beef is getting harder for Americans to afford ... . Prices prices are rising just as summer barbecue season is heating up. To which your vegan cousin said, "Well, well, well, I guess these tofu ribs don't look so bad after all." What's that? They still look bad and also weird because they are shaped like ribs even though they're made out of coagulated soy. Oh, fine. Be that way. Nut-based cheese, anyone? Cashew cheddar. [applause and cheering] It doesn't melt.

Talk about punching down! And of course, the audience's "applause and cheering" at his half-witticisms are exactly what motivates even smart comics like Colbert to be so lazy.

To be clear, Colbert in general was still very much at the top of his game before his firing, which differentiates him from his former boss Jon Stewart, whose retirement in 2015 was long overdue and whose 2024 return to "The Daily Show" to host on Mondays has merely made it all the more obvious that he is well beyond his best-by date. I mean, how much mugging and self-satisfied giggling is one poorly informed (albeit more often than not well-meaning) man allowed to smugly inflict on the world? (See especially my comments here and here about some of his recent worse-than-useless takes.)

So to be very, very clear, Colbert is/was not bad at all. Quite the opposite, in fact. Even so, take another look at what he said in his monologue above, which at least one of his writers came up with and which Colbert approved and delivered. What is the joke, exactly? That vegan food is "weird," apparently, because it is sometimes formed to look like something else but is "coagulated" and sometimes has a higher melting point.

Devastating. Yet as we all know, people will eat hot dogs, chicken "nuggets," "cheese product," "buttery popcorn topping" -- sometimes even making grim jokes about how they have no idea what is actually in any of those things -- but when anyone dares to suggest that maybe they should eat something that is not a part of an animal that was tortured and then killed, they get their backs up and say, "Hey, I care about what I put in my body!"

Of course, the truly bad faith arguments come from people who are lazy in a different way. That is, while Colbert would occasionally go for a cheap laugh from the "Hey, look at those freaks!" school of comedy, many malevolent people think that they have super-clever responses to veganism, only to come up with nothing. Even so, they somehow feel good about their failed efforts.

As an example, I happened upon a column on a pro-vegan website a few years ago that responded to a scene from the show "Yellowstone," about which I knew nothing at the time. I soon learned that that show and its creator have become popular on the American right for fighting the culture wars through gauzy (to say nothing of dishonest) depictions of American mythology. There was apparently an episode of the show in which a character is confronted by anti-meat protesters, and his version of a zinger was this:

You ever plow a field? To plant quinoa or sorghum or whatever the hell it is you eat? You kill everything on the ground and under it. You kill every snake, every frog, every mouse, mole, vole, worm, quail…you kill them all. So I guess the only real question is: how cute does an animal have to be before you care if it dies to feed you?

As the writer of the piece that responded to that comment noted: "The lead, Kevin Costner, gave a one-liner putdown of veganism that was presented as wise and grounded. The mostly-female protestors didn’t respond, weren’t given a response. It was a weak moment." The authored added:

Costner's point: that vegans only care about "cute" animals, that farming "quinoa or whatever you all eat" kills animals, is easy to reply to. We aren't trying to be perfect. We're trying to care, do ... what we can. Farming vegan foods may kill animals, and displace jungle/forest (which it doesn't need to)—but 85% of farmland and say 100% of ranchland is dedicated to growing crops for animals to be tortured and murdered, or directly for animals to be tortured then murdered. So want to spare the lives of 85-100% of animals? Eat lower on the food chain. Care.
And vegans, last I checked, show up in caring for all animals, not just cuties. And, ranchers aren't our enemy. Industrial ag is, factory farming is, and ranchers and small farmers also find common cause against Big Ag.

Living on the land is beautiful. But if we're truly living on the land, we're living with the land, in harmony, not subjugating it and torturing and killing Nature as we see fit.

I would not necessarily endorse everything in that response, but no one should expect vegans to agree on everything. It is reasonable, however, to expect that a big moment on a major TV show in which a character is given the opportunity to speak for the vegan-hating crowd might be ... persuasive, maybe, or somehow good, at least? I mean, this was not an actual encounter between humans who are taken by surprise and say things that are incomplete, off the cuff, or even inadvertently wrong. This is a scripted show with a large budget and months of lead time to get things right. Right wing websites that linked to that clip inevitably claimed that Costner's character "destroyed" some hapless lefties.

But seriously? "Everything you do has some negative side effect, so no one can oppose anything I do"? As one commentator said after Trump's big speech last week about imaginary 2020 election interference: This is all you've got?!

Frequent readers of my columns here on Dorf on Law might recognize this broad phenomenon. It is only the most recent example of my fascination with the idea that people who make embarrassing arguments are unintentionally showing that they simply do not care about being persuasive, because they are able to get away with making claims that they would never accept from an opponent. For example, last week I ended my critique of John Roberts's opinion in the Slaughter case with this: "I often point out that one can easily sniff out the arrogance of power by paying attention to how weak an argument is. Roberts does not feel the need to defend his silly wordplay, because he has the votes." The arrogance of power is easy to identify when those who are exploiting weaker beings cannot even be bothered to make an argument that passes the straight-face test.

But it does not end there. The anti-vegan crowd, especially its most hostile members, does not limit itself to hippie-punching. They want to take away your freedom! Yes, I mean that seriously, but I will allow Paul Krugman to make the point. In one of his NYT columns two years ago, he addressed an effort by Florida Governor Ron DeSantis (who, amusingly in this context, was once the recipient of a Trump insult: the nickname "Meatball Ron") to prevent a "cultured meat" industry from ever coming into being, an effort that I also discussed in my 2024 veganniversary column. Krugman wrote:

But even if you're someone who insists that "real" Americans eat lots of meat, why must the meat be supplied by killing animals if an alternative becomes available? Opponents of lab-grown meat like to talk about the industrial look of cultured meat production, but what do they imagine many modern meat processing facilities look like?
And then there are the conspiracy theories. It's a fact that getting protein from beef involves a lot more greenhouse gas emissions than getting it from other sources. It's also a fact that under President Biden, the United States has finally been taking serious action on climate change. But in the fever swamp of the right, which these days is a pretty sizable bloc of Republican commentators and politicians, opposition to Biden's eminently reasonable climate policy has resulted in an assortment of wild claims, including one that Biden was going to put limits on Americans' burger consumption.
And have you heard about how global elites are going to force us to start eating insects?
By the way, I'm not a vegetarian and have no intention of eating bugs. But I respect other people’s choices — which right-wing politicians increasingly don't.

Is that not sad enough for you? Unfortunately, there is more. The anti-vegan movement is not something that simply popped into politicians' heads. There are, as unbelievable as it might seem, "Big Meat Influencers" on the right, as the YouTuber Rebecca Watson explored in a video in 2023. These are people who have spent the last few years spreading disinformation about how vegans are wimpy "soy boys" and all that nonsense. They try every trick in the propaganda playbook, from spouting junk science to asking "What about the children?"

More to the point, that anti-vegan public relations effort is part of the same ecosystem (although they would surely reject any concern about ecosystems!) as RFKJr's raw milk (and roadkill) obsession, along with the full range of panic about a supposed lack of manliness in modern America. Did you know that sperm counts are down by 50 percent? That is another lie, but the people who failed to laugh when Tucker Carlson was pushing "testicle tanning" are convinced that spermageddon is upon us and can only be fought by Real Men being Really Manly. Their arguments, however, are simply flaccid.

The overall point, then, is that the effort to discredit veganism is now part of the larger effort to suggest that only the most toxic, violent males deserve anyone's respect. Yes, there is a blindingly obvious double entendre regarding "Big Meat" as referring both to eating animals and being procreative. (But never use a French phrase with these dudes.) Overcompensation is overcompensation, and these weak men are frantically hoping that they can prove their virility by shouting to the world, as one of Trump's sons once claimed, "I’m pretty sure I ate 4 pounds of red meat yesterday."

Nothing pathetic about that.

- Neil H. Buchanan

The Supreme Court's Invented Color-Blind Constitution is a National Tragedy

2026-07-22T12:00:00.000-04:00

I do not know the best way to address the effects of centuries of legally sanctioned racist governmental policies. From slavery to Black Codes to segregation to red lining, our country imposed the opposite of color-blind policies on Black Americans for most of our history. These policies treated them first as property, then as indentured workers, then as people white folks did not want in their schools or their neighborhoods. Racist and oppressive government programs led directly to where we are today--a country where people are still judged by the color of their skin not the content of their character.

Black people represent about 13.5 percent of the population. Here are some alarming but not surprising data:

43% of Black people own their homes as compared to 72% of white people. In 1900, yes 1900, the gap was smaller. In that year, 48% of White people owned houses compared to 21% of Black people. The gap is larger now than when segregation was rampant and legal.

The median income of Black households is 36% less than white households.

In the first half of this year, Black unemployment went up while white unemployment stayed the same.

The Black student college graduation rate is 20 percentage points lower than the rate for white students.

There are currently only 5 Black Senators out of 100 possible seats in the Senate. In all of American history, there have been only 14 Black Senators.

21 states have never had a Black member of Congress.

There is currently only 1 Black Governor in the United States.

There are currently only 11 Black CEOs of Fortune 500 Companies.

There have been only 3 Black Supreme Court justices in all of American history.

I could go on and on, but I am confident you get the point. These statistics reveal how far away we are from a color-blind society. Black people simply do not get a fair share of our country's wealth, government/private sector jobs, and educational opportunities. In America, race still matters a lot.

Despite obvious racial disparities that still exist, the Roberts Court acts as if racism is a relic of the past. The Court has prohibited the use of all racial classifications by the government to try to address the effects of our racist past as if that past never happened.

In education and voting especially, the Roberts Court has prevented local, state, and national legislatures from choosing the tools they deem necessary to move us to a more racially just society. It would be one thing if the Constitution demanded that result, but it unequivocally does not. As I have written before, there is nothing in the Constitution's text or history that prevents the governmental use of racial classifications to bring races together or provide more economic opportunities for racial minorities:

The phrase color-blindness does not appear anywhere in the Constitution. One might think that for alleged textualists this void would be a problem. In fact, the word race does not even appear anywhere in the relevant texts the Court waves at in its cases imposing color blindness on every unit of government in America. There is simply no textual basis for the rule.
History fares no better. There is no persuasive account of the Reconstruction Amendments that suggests their original meaning was to prohibit the use of race to address longstanding legalized racial discrimination. The literature on that point is voluminous and persuasive, which probably explains why Justice Antonin Scalia, perhaps the loudest proponent of color blindness other than Justice Thomas, never addressed the question of the original meaning of the Reconstruction Amendments as it pertained to color blindness, even though he preached that rule in case after case.

The justices' insensitivity to current racial discrimination is reflected in the following quote from Justice Thomas, who wrote it in dissent in a voting rights case that just a few years later became the law of the land: "Perhaps an acceptable system is one in which the minority simply cannot elect its preferred candidates; it is, after all, a minority."

The people who drafted and ratified the Reconstruction Amendments would be shocked to hear that the Constitution must be interpreted in a manner in which "the minority simply cannot elect its preferred candidates." They would also be shocked to learn that the Supreme Court has outlawed the use by any governmental entity of all racial classifications to provide opportunities for the very people those Amendments were designed to help.

As I said at the outset, I do not know the best way to move to a more racially just society. Maybe as a matter of policy color-blindness is the best way to achieve that goal. But it is just as possible that we must use race to get beyond the centuries of legal racism the effects of which still haunt us today. But the Constitution's text and history do not answer that question, so it should be left up to the voters and their elected government representatives, not life-tenured judges who are imposing their own policy choices on all fifty states and the federal government.

Taking all racial tools out of the hands of local and national governments dominated by racial majorities is bad constitutional law and unjustifiable judicial aggression by a Court completely insensitive to the plight of Black people in America. It is not an overstatement to suggest that the Roberts Court is breathing new life into America's original sin. And that is a real tragedy.

-- Eric Segall

AI v. J.D.: Which One is More Ridiculous, Ignorant, Dangerous?

2026-07-21T16:13:18.802-04:00

Imagine a person who confidently and condescendingly tells you that he knows the answer to every question, except that he constantly gets facts wrong and cannot reason his way out of a paper bag. Oh, and he is almost as unlikable as Ted Cruz. Is he J.D. Vance, or is he AI? (Admittedly, AI is not a "person," but are we truly sure about J.D.?)

Early last month, I had some fun writing a couple of columns about large-language models -- which have, quite inaccurately, come to be called Artificial Intelligence (AI) -- and how bad they are. On June 3 and June 9, with reference to my lone previous column mentioning AI from last Fall, I stipulated that my critique was not based on tech expertise but simply on the fact that AI has been shown again and again -- no matter how much it has supposedly improved over time -- to be all but useless.

I captured the fundamental problem in a quote from a podcaster that I used in both recent columns: "If you presented a calculator to me and said, 'This'll do any calculation you want, but it'll get a bunch wrong, and you don't know how often, and you don't know which ones will be wrong, so you have to manually check them all anyway,' isn't that useless?" And that certainly applies to J.D., who will confidently spit out words upon words that can in no way be taken at face value. Worse than AI, however, people would be wise simply to assume that what J.D. is saying is always wrong.

Indeed, he openly admitted -- or, more accurately, proudly announced -- that he will lie whenever he feels like it: "If I have to create stories so that the American media actually pays attention to the suffering of the American people, then that's what I’m going to do." This means that although AI is "dumb" in the sense that it naively accepts as fact anything that it scrapes from the internet, Vance deliberately steers away from the most reliable sources of facts and merely makes up things that he or the billionaires who created him would find useful.

Before going further with this comparison between the error-riddled automaton and AI, however, I should take a moment to offer a few relevant side notes.

First, I have complained in my previous columns that the "AI Overview" result at the top of Google searches cannot be turned off. Indeed, it is now apparently the plan to stop providing the results of old-fashioned searches entirely, although we will see about that. Even as it is, however, at best a person has to try to skip past the AI commentary at the top of the page without having one's attention caught by something possibly false, scrolling down to where the old-fashioned results begin. Happily, some tech types have come up with a workaround that only provides pre-AI search results. It is called "&udm=14 the disenshittification Konami code," and the link is here: https://udm14.com/. You're welcome.

Second, for those who would like to read a truly informative and insightful column explaining for laypeople (like me) why AI is not even supposed to be intelligent, the editors of The New York Times op-ed page pleasantly surprised me by having a very smart expert on its list of occasional columnists: Zeynep Tufekci, a Princeton sociologist whose "research revolves around politics, civics, movements, privacy and surveillance, as well as data and algorithms," according to her "about" page. In her most recent column (June 30, 2026), after offering a few amusing anecdotes involving super-silly AI errors, Tufekci lays it out clearly:

Large language models are not reasoning machines. They’re plausibility engines. It’s not just that they don’t test their outputs to make sure they’re correct or logical, or that they fail to do so in certain instances. They can’t, and they’ll never be able to on their own. They can only assess which answers are probable, based on the data on which the models have been trained. And that holds true whether they’re trained on the full breadth of human output or only on peer-reviewed scientific articles. It’s baked into the way they operate.

This helped me understand more precisely why the "improved" AI models never seem to improve. And Tufekci also makes it clear why the "data on which the models have been trained" is not the only inherent weakness of the technology.

On that data problem, I noted in my most recent column on this topic the now-infamous "MechaHitler" incident, which became the leading example of the fundamental garbage-in-garbage-out problem with AI, because that problem is fundamental to the internet itself.

I recently encountered this problem in a way that I had not seen before. I was visiting London, meaning that I was traveling on the Underground, which locals call the Tube. Because I am a hard rock-loving Baby Boomer, I cannot hear the words "the Tube" without thinking of this lyric from The Who's "Who Are You?" in which Roger Daltrey sings about a hungover morning after: "I took the tube back out of town, Back to the Rolling Pin." A few years ago, I wondered whether the Rolling Pin was a real bar and, if so, if it still exists somewhere in London. So I googled it.

On this most recent trip, I recounted to a loved one what I had learned when I researched that question online. It seems that although the guys in The Who came out of London, they (like most of the British Invasion bands of the 1960's) spent a lot of time in New York City. Although Daltrey (singing writer Pete Townshend's lyrics) used the words "the Tube," in fact the story happened in New York, with Daltrey returning to a local bar the morning after a bender. I thought that was interesting, and it was consistent with the way people use idioms in sometimes inaccurate ways.

The problem is that the story is apparently completely false, so when I wrote "in fact" in the paragraph above, I was wrongly repeating falsehoods that I had found on the internet. How do I now know that they are false? At this point, that is almost a metaphysical question, but I can at least note two things that I discovered after I had recounted my story to that admirably patient audience of one.

First, every possible search configuration that I used this time gave me the result that the story did happen in London. (That the opening lyric refers to "a Soho doorway" is genuinely ambiguous, however.) Second, not only is the current information inconsistent with what I found a few years ago, but the counter-intuitive story seems to have completely disappeared from the internet, as far as I can determine. To be clear, I am aware that one can have faulty memories or even be subject to the Mandela effect (or is it the Mengele effect?). My recollection of that story about the Rolling Pin, however, seems nearly impossible to explain with such phenomena. It is too specific and involved to be a hazy memory with a few facts wrong, and it is certainly not an example of a Mandela effect, because it is not shared.

In any case, I found this whole thing especially illuminating, because it is not merely about bad information being available online. It also shows that information can come and go. In fact, now that I am publishing this anecdote here, the internet again has at least one searchable source in which "Who are You?" supposedly takes place in New York.

Again, however, it is not simply that AI will always have to rely on outside-generated data that (per Tufecki) it cannot possibly assess for accuracy. AI is also very bad at using what it regards as facts correctly, and when it is correct, it is repetitive. In my June 3 column, for example, I reproduced some of the lyrics from an AI-generated song that was created in response to a friend's prompt involving some of the key locations in my recent nomadic existence. The AI-generated lyrics repeatedly used certain phrases to refer to various places: Washington DC was "a tailored suit" and "marble"; Florida was "heat" and "gators"; and the lyrics kept going back to Amsterdam's "canals." In my penultimate paragraph, I was in full sarcasm mode:

Maybe AI will get much better at all of this over time, but maybe not. [I]t could be that AI will continue to be simply bad. It is, at the very least, not obvious that additional programming could make it choose nontrivial -- to say nothing of accurate -- shorthands for various places. If you knew one of those annoying people who constantly referred to New York as "the city that never sleeps" and gave him "the Big Apple" and "the city so nice they named it twice," he could probably use those three options interchangeably. That would not, however, make him interesting.

In some sense, however, my assessment was too kind, because the evidence to date suggests that the more likely path would be for an AI lyricist to refer to New York as "the Windy City" or "the Big Easy" as frequently as Gotham or "the city that never sleeps." AI is, as I suggested in today's headline, not only ridiculous but irredeemably ignorant and possibly dangerous.

All of which brings us back to J.D. vis-a-vis AI. Who likes AI? Some normal people do, I suppose, but at this point it is mostly down to a few creepy tech billionaires, because AI is useful to them. Who likes J.D.? Even fewer normal people appear to affirmatively like the VP, while everyone else seems to be completely turned off by him. But again, a few creepy tech billionaires think that he is useful to them.

This is because both are easily manipulable. AI sycophantically admits its errors and apologizes. J.D. changes his views without hesitation, and he says that his lies are for the greater good. He also, however, has an almost mystical capacity to make himself look ridiculous. Lecturing the Pope to "be careful" when speaking about theology is a self-own of biblical proportions (wink), and J.D. also says self-negating things out loud. As The Guardian recently reported, for example, Vance has admitted that he has no idea how diplomacy works:

On Friday Vance went on Fox where he expressed frustration with diplomatic protocols vis-a-vis Iran and said: "I’ve gotta be honest with you – I don’t really understand these things. [But] I’m trying to be respectful. Given my position in the last year-and-a-half, I have to care about diplomatic protocols all of a sudden."

Another important side note: Speaking of the Pope, his recent encyclical against AI was an example of moral leadership in its purest form. After what happened to Francis, we should all hope that Leo steers clear of Trump's Number Two.

But back to J.D. and Iran. This is the man who was supposed to be negotiating a diplomatic end to his boss's disastrous war of choice, and he said out loud on the TeeVee box that the whole diplomacy thing puzzles him. In addition, as Senator Chris Coons (D-Del.) reportedly put it at the time: "The easiest way to tell that even the White House knows this deal is a disaster? Instead of trumpeting it as his own deal, Trump is putting the eventual blame on" our hapless Vice President.

Again, AI is dumb for obvious technical reasons. J.D. is even dumber, however, because he combines factual ignorance with motivated reasoning and an inability to stop himself from saying unfiltered nonsense out loud. Although Margaret Sullivan, the astute media commentator, claims to see a method in his madness -- essentially an attempt by Vance to prove to Trump's base that he (Vance) is just as unhinged as they want him to be -- she provides example after example of "loony things" that Vance has said that cannot possibly serve that purpose, nor do they make him seem more human-like. Campaigning for Viktor Orban? Dismissing the importance of Watergate? Good calls.

Back when Antonin Scalia was alive, I occasionally heard this from his defenders: "You might not agree with him, but ya gotta admit that he's a great thinker." That was never true (as I explained in a 2022 column), but at least it had a certain prima facie plausibility to it. In the end, he was mostly bombast and overweening, unearned self-regard. Vance has all of that, but without even the most basic case for presuming that there is any brilliance lurking under the surface. (And no, going to an elite law school does not prove anything. At all.)

In the end, J.D. is the worst version of what AI would be if it were (slightly) more human.

- Neil H. Buchanan

Is the Supreme Court's Police Department Unconstitutional? A Question Inspired by the Testimony of Justices Kagan and Barrett

2026-07-20T02:00:00.000-04:00

Last week, Justices Barrett and Kagan appeared before a House appropriations subcommittee to explain the Supreme Court's request for a budget increase. As has been widely reported (e.g., here), the bulk of the requested increase is to address heightened security needs, as threats to Justices have increased in recent years. Both Justices Barrett and Kagan pointed to the Dobbs leak in 2022 as the point from which to measure the increase. Certainly there were security threats that one could specifically tie to that leak, most prominently the man who was arrested in June 2022 near Justice Kavanaugh's home with a gun, a knife, pepper spray, and burglars' tools.

Overall, however, I suspect that the threats being directed at the Justices are simply part of the larger trend of increased political violence more broadly. In general, that threat is greater from the right than from the left, although I don't know whether that's true with respect to threats directed specifically at the judiciary and Supreme Court justices. Needless to say (but I'll say it anyway), threats of harm to Justices and their families warrant condemnation, regardless of the ideology of the people making the threats or those at whom they are directed.

I now offer a few observations based on the hearing.

(1) Justice Kagan took the lead overall. Justice Barrett offered three stories from her own experience and that of her colleagues. First, she said she was at a loss how to explain to her twelve-year-old son why she needed a bullet-proof vest when one was issued to her. That does seem very rough, but I was actually more disturbed by the two other main stories she related. Justice Barrett mentioned that her home was SWATted, which is not merely a threat of violence but, given what has sometimes happened to others who have been SWATted, an actual attempt at violence. Justice Barrett also recounted that she and some of her colleagues sometimes receive unsought deliveries (presumably of things like pizzas) addressed to Daniel Salas. He was the son of Judge Esther Salas and was shot and killed by "a disgruntled lawyer posing as a delivery driver." There is no way to understand such acts except as a threat to murder a Justice's family members. What the hell is wrong with people?

(2) Some of the questions posed by the subcommittee members (especially the Democrats) had nothing to do with the Court's funding request. The topics that interested these members the most were the shadow docket and the possibility of stricter (or really any enforceable) ethics rules for the Justices, especially with respect to limits on gifts. Although I am sympathetic to the substantive positions taken by these subcommittee members, and the Justices tried to answer the questions, these lines of questioning fit very awkwardly into the hearing overall.

(3) Justice Kagan said that the bulk of the funding increase for security would go to paying to hire more Supreme Court Police. In response to a line of questioning about physical security measures at the courthouse, Justice Kagan said that she and her colleagues generally dislike fencing and other barriers that make it difficult for the public to gain access to the court because they want transparency. That struck me as at best ironic given how resistant the Court continues to be towards allowing cameras in the courtroom to livestream oral arguments. I say this less for me than for the general public. I'm very glad that the Court now livestreams the audio of its oral arguments. I don't need video because I recognize each Justice's voice and with audio-only I can listen while doing chores (or posting snark on BlueSky). But given the broader culture, video should also be streamed and available for the public generally.

(4) Justice Kagan explained repeatedly that the budget increase requested would be for the purpose of increasing the capacity of the Supreme Court Police because the Justices don't like having to rely on the U.S. Marshals Service, which is part of the Department of Justice. That got me wondering: Is the Supreme Court of the United States Police Department (SCUSPD), as it is officially known, unconstitutional following Trump v. Slaughter?

By law, SCUSPD officers can make arrests for violations of federal and state laws. That same law authorizes them to carry firearms. They thus appear to exercise pure executive power: law enforcement. Yet they are located within an agency, the SCUSPD, that is not headed by anyone who serves at the pleasure of the president. Rather, they answer to the Supreme Court Marshal, who, by law, is appointed by and removable by the Court.

Hold on. Doesn't the Court need its own police force?

That depends on what we mean by need. Justice Kagan and Congressman Steny Hoyer agreed that when one has a security detail, it's very helpful if the members of that detail develop a relationship with the person to be protected. Never having had (or needed) my own security detail, I take their word for that, but that seems an insufficient justification for locating the relevant personnel in the judicial branch. The same particular U.S. Marshals could be detailed to particular Supreme Court Justices even though those Marshals are within the executive branch.

The real reason for giving the Court control over its own police force is to ensure its judicial independence. Especially now, with a vindictive and petty president who has shown a willingness to withdraw protection from those he regards as his political foes, one can absolutely see the need for the personal safety of the Justices and their families not to depend on the executive branch of government, with which the Court and individual Justices are sometimes at odds. Put differently, there is a principled reason for the SCUSPD to be independent of the executive branch.

But . . . wait for it . . . wait for it . . . there are also principled reasons for Congress to have structured other agencies as independent of the executive branch. The Merit Systems Protection Board, the Federal Election Commission, and various other agencies that Congress insulated from direct presidential control with good-cause removal protection were made that way because Congress valued some combination of subject-matter expertise and distance from direct political control. Yet that was not enough to preserve independent agencies in Slaughter.

Except for the Fed. In Trump v. Cook, the Court recognized that central bank independence is extremely valuable for averting economic ruin. However, perhaps in tacit acknowledgment that this sort of functional justification was at odds with its destruction of all other independent agencies, the Court ultimately preserved Fed independence as a "special arrangement sanctioned by history."

But here's the thing. No similar history justifies an independent SCUSPD. In the realm of judicial security, there is nothing remotely similar in the early republic to the First and Second Banks of the United States. The Supreme Court had no police force whatsoever in the early republic. It did not get a Marshal until 1867. That is exactly the same year in which Congress enacted the Tenure of Office Act, which the Court in Slaughter treated as the paradigmatic congressional overreach. Thus, an institution with a pedigree extending only as far back as 1867 cannot render the SCUSPD a special arrangement sanctioned by history.

Indeed, things look even worse, history-wise. The Marshal circa 1867 provided security in the sense of keeping order in the courtroom, but the Court did not get an actual police force until 1935, the very same year that the Court decided the Humphrey's Executor case that it overruled in Slaughter. Simply put, whatever history makes the Fed an exception to the rule of Slaughter does not apply to the SCUSPD.

So, is the SCUSPD unconstitutional? In light of Slaughter and Cook, the answer seems pretty clearly yes. However, the Justices seem to really like having their own police force. Thus, the smart money says the Court would find anyone challenging the SCUSPD's authority to lack standing or, in the event it could not duck the merits, that it will invent some new exception for . . . uhm . . . reasons.

A Few Somewhat Random Reactions to the Court’s Latest Term, Part Two: Movement Conservatism Drops All Pretense

2026-07-17T13:33:20.283-04:00

The US Supreme Court's just-completed term will go down as another bloodbath for American constitutionalism, for the rule of law, and even for basic decency. In yesterday's Part One of this two-part column, I explained that my goal is not to provide a "summary of the term" analysis along the lines that Professor Dorf has already done so well. Instead, I have collected a few stray threads within various cases that might provide useful ways to think about what is happening and is likely to happen in the near future.

Yesterday's entry promised a long list of such stray threads, but in fact my first two examples were more than enough to fill a column (and then some). Those two examples included a good outcome (Chatrie v. U.S., a Fourth Amendment case the Professor Matthew Tokson nicely analyzed in three posts on this blog) and one with a very bad outcome (Mullin v. Al Otro Lado, in which the Roberts Six played with words to negate a duly enacted statute).

To emphasize how insane that latter case's holding is, one need only understand that Congress enacted a law providing that when a person comes to the US and asks for asylum, the US must process their claim. That is, a person who makes it through whatever harrowing journey was needed to arrive at the border can walk up and present themselves to US border officials and say, "I want to do this the right way, so I'm here to provide the information necessary for you to process my asylum request." The Court's MAGA-fied supermajority, however, held that if US border officials cleverly set up physical barriers such that the would-be applicant cannot say that he was ever "in" the US, then no such process is required by law. So much for all the work that Congress did in setting up and providing funding for processing such applications.

In any event, the outcomes of other cases this term were often at least as absurd and politically transparent. Picking up from where I ended with yesterday's first two examples, I will continue with two additional reactions here:

(3) Roberts's facile wordplay becomes even more ridiculous.

Just as it used to seem telling to point to the rank hypocrisy coming from conservatives regarding practically everything (so-called states' rights in abortion cases quickly giving way to calls for a nationwide ban post-Dobbs being the most obvious example), it once seemed useful to mock John Roberts's infamous and obviously disingenuous claim during this confirmation hearing that he would only "call balls and strikes." By now, however, revisiting that obvious lie feels as useful as pointing out that, say, Donald Trump used to promise that he would release his taxes.

What does still seem relevant is that the Chief Justice somehow manages to have reached age 71 without ever growing out of his sophomoric attempts at cleverness. In the terrible Slaughter decision (holding that Trump can fire any administrator without cause, even those whose positions were set up by statute to be politically insulated, a case that Professor Dorf analyzed here), Roberts gave us another example of his 15-year-old alter ego at work:

To "discharg[e] the duties of his trust," the President must have the assistance of officers he can trust. Although it is up to the Senate to decide whether to confirm those with whom the President would prefer to work, neither Congress nor the courts may saddle him with those with whom he cannot work. Subordinates who exercise the President's power are subject to removal by him.

Gee, what a naked policy argument from an avowedly principled conservative in a constitutional case! And, I might add, it is not even a very good policy argument, relying at best on wordplay deliberately confusing two meanings of the word “trust.”

To be a bit less sarcastic, the point is that there might indeed be good reasons for a President to be able to fire commissioners, but that is not what the Court should have been deciding in that case. And the fact is that any President can be "saddled … with those with whom he cannot work," for example when a Vice President loses the President's favor. And the Senate could continue to refuse to confirm nominees for any position, leaving the President with the choice of going without a confirmed appointee or working with someone the Senate deems acceptable but the President hates.

Heck, Roberts himself wrote the majority opinion in Trump v. Cook, which carved out an exception to Slaughter for the Federal Reserve. Why? Reasons. The bottom line, however, is that the President must now continue to discharge his duties of trust when it come to the nation's monetary policy while being "saddled with those with whom he cannot work." Trust me.

But all of that is a sideshow, because my point here is that Roberts apparently believes that he can use the word "trust" as if it has only one meaning: the president has "duties of trust," so he must be able to "trust" the people he works with. I wonder what Roberts thinks his Trusts and Estates course in law school was all about.

Moreover, am I the only person who heard echoes of another infamously dishonest Roberts line, from 2007's Parents Involved? For those who might have somehow forgotten, he intoned: "The way to stop discrimination on the basis of race is to stop discriminating on the basis of race," and he followed up in 2023's Students for Fair Admissions with this: "Eliminating racial discrimination means eliminating all of it."

Right, because as so many people have noted (and returning to full sarcasm mode), all we have to do is ignore all of the discrimination in the world and then say that we have stopped discriminating. But that is the height of legal genius compared to Roberts’ trust/trust deception in Slaughter.

I often point out that one can easily sniff out the arrogance of power by paying attention to how weak an argument is. Roberts does not feel the need to defend his silly wordplay, because he has the votes. Even so, it does not say good things that he somehow feels the need to insult everyone's intelligence with drivel like this.

Roberts and his cohorts are what movement conservatism has inflicted upon us, and they feel so unfettered that they openly cited a 17th Century witch hunter when overturning women's reproductive rights. At least Roberts himself did not sign onto that one, but as Professor Dorf pointed out a few years ago, the other Bush v. Gore alums most emphatically did. Indeed, they apparently participated in adding it to the final decision. (And as long as we are still not sure whether Mitch McConnell has yet passed on, I would be remiss if I failed to note his role in creating this Court.)

(4) Living constitutionalism and birthright citizenship

In Trump v. Barbara, the birthright citizenship case, five justices said that the Constitution means what it says. The other four were willing to engage in atextual, ahistorical, and anti-precedential gamesmanship to find the opposite. The odd-man-out of those four was Brett Kavanaugh, who said that birthright citizenship is not required by the Constitution but is required by current statute. That is no less insane, because he can only get there by mangling the Fourteenth Amendment along with a longstanding precedent (1898’s Wong Kim Ark, a ruling that was not "egregiously wrong," by the way).

Here on Dorf on Law, in "We are All Constitutional Pluralists Now: Just ask Justice Brett Kavanaugh," Professor Segall wrote an excellent piece exposing Kavanaugh's opportunistic use of non-originalism in his Barbara concurrence/dissent. Ending that column, Professor Segall drew from some of his own scholarship and wrote: "Justice Kavanaugh's descriptive account of how judges decide constitutional cases is spot on. They apply old principles to new facts based on modern imperatives. ... If you do not believe me, listen to Justice Kavanaugh."

I would amend that conclusion in what I think is a very friendly way (although Professor Segall certainly can take the floor to respond, if I misunderstood). Here is my version of that last sentence: "If you do not believe me, listen to the version of Justice Kavanaugh who wrote in Barbara, a version that will disappear as soon as it's useful for him to pretend to be an originalist again."

On the substance, however, Kavanaugh is simply bad at trying to be a pluralist. His argument, if one can call it that, to show that the Fourteenth Amendment is not dispositive in the case is based on his observation that there are already some exceptions to who qualifies for birthright citizenship: children of foreign diplomats, of invading armies, and so on. He then claims that the Constitution must live and breathe, and therefore that the exceptions are not "a closed set trapped in amber" (internal quotation marks omitted), which in turn supposedly means that Congress could add to the list recognized in Wong Kim Ark.

This would be B+ work (maybe A-) from a 2L struggling to break free of fake originalism, so it is not terrible as a first stab. Where he goes wrong, however, is his claim that the exceptions — "for 'children of foreign sovereigns or their ministers, or born on foreign public ships, or of enemies within and during a hostile occupation of part of our territory' and 'children of members of the Indian tribes'" — are "disparate." He then claims that the "only apparent principle unifying the four disparate exceptions ... is that the parents in all of those varied circumstances were not U. S. citizens and were citizens of other nations, whether tribal or foreign."

OK, so the only unifying principle is that the parents are not US citizens, I guess. But the genuine unifying principle is found in the Fourteenth Amendment itself, which says that children who are subject to the jurisdiction of the United States are citizens. The children of foreign diplomats are not subject to US jurisdiction (as people who are harmed by them on US soil quickly learn to their dismay), nor are the children of occupying armies, nor are the children of indigenous peoples. And children "born on foreign public ships" fail even the "born or naturalized in the United States" premise of the Amedment itself. Kavanaugh tries to mock the majority's invocation of "the fiction of extraterritoriality," but in fact we engage in such fictions all the time. Territory itself is a legal fiction.

One supposes that Kavanaugh might be graded on a curve, because he clearly is often in over his head. After all, he is the author of the fateful words that are now being used to justify "Kavanaugh stops": "The interests of individuals who are illegally in the country in avoiding being stopped by law enforcement for questioning is ultimately an interest in evading the law. That is not an especially weighty legal interest." In other words, Kavanaugh is back at Day One of 1L, struggling to understand that recognizing "rights of the accused" is not tantamount to approving "the Purge." This is simply shocking, but it should no longer surprise. Kavanaugh surely spends his time with people who think that "only guilty people are arrested" and that the Warren Court wanted to set obviously guilty people loose on the populace.

Again, movement conservatism is on full display here. Kavanaugh's predecessor on the Court wrote a fantasy-land opinion in 2002 that claimed that people of course feel "free to leave" a bus that had been boarded by law enforcement agents, because the officers did not completely block the aisle or stand in the doorway. People will surely feel free to walk out, right?

These four examples of dangerous legal reasoning -- two in cases with good outcomes, two in bad -- are of course hardly an exhaustive list of what one can find in the most recent term's output from the six Republican appointees. Taken together, however, they offer an indication of just how much nonsense we can find in bad and good decisions alike. They also remind me why I am now almost completely on board with Professor Segall's long-held view that the US Supreme Court is not a court at all.

In other words, Amy Coney Barrett's assurance "that this court is not comprised of a bunch of partisan hacks" has never been more difficult to believe.

- Neil H. Buchanan

A Few Somewhat Random Reactions to the Court’s Latest Term, Part One: Opportunistic Formalism

2026-07-16T16:26:32.288-04:00

How bad was the latest US Supreme Court term? Plenty bad, especially for anyone who cares at all about democracy or the rule of law. There were a few relatively pleasant surprises, but even those cases (as I will demonstrate shortly) can have worrisome lead linings hiding inside. But the truly awful decisions dominated the Court's output once again in 2025-26.

For readers looking for a relatively traditional "summary of the term"-style analysis, one could hardly do better than to click on Professor Dorf's recent "Is the Roberts Court Hyperopic or Willfully Blind?" (first posted on SCOTUSblog). Because constitutional law has never been my day job or even my hobby, I am not pretending to be able -- or even inclined to try -- to offer that kind of overall assessment of the Court's work. Instead, my approach here and in tomorrow's Part Two of this column will be eclectic, discussing a few notable points within cases that strike me as having been overlooked or underappreciated.

I should add that the usual ConLaw suspects at Dorf on Law have published deep analyses of most of the top cases of the term, including the rulings on independent federal agencies (with guest Eric Berger's additional analysis of the same case), anti-transgender laws, birthright citizenship, another insane Second Amendment case, Article III versus the Seventh Amendment, and Matthew Tokson's especially illuminating three-part response to a major Fourth Amendment privacy law ruling. Anyone who wants to learn more about those cases will find plenty of reading material on this blog.

I will also not pretend to have a unifying theme here, so I will simply begin with the classic disclaimer "in no particular order."

In no particular order:

(1) A time bomb in the privacy case

We can start with Professor Tokson's excellent summary of that landmark Fourth Amendment case (Chatrie v. U.S.). Already contradicting myself after saying that these reactions are in no particular order, I in fact begin here because the case was a rare instance in this sad term of a very good decision. Unfortunately, however, the Court's analysis might not have the staying power for which one might hope.

To be clear, I agree with Professor Tokson's analysis in all respects, and his extensive discussion carefully walks us through how the 6-3 majority (but really a 5-4 majority on the important constitutional matters, because Neil Gorsuch's oddball analysis was rejected by all of the other eight justices, even as he concurred in the result) smartly rewrote privacy law for the smartphone age.

A key issue in the case was whether a standard opt-in screen on a cellphone app could be deemed to constitute a waiver of Fourth Amendment protections. Professor Tokson explains that the Court's majority completely rejected the idea that clicking "yes" on a cellphone's permission screen was a voluntary waiver. Happily, the majority took an approach wholly at odds with the usual contract formalism that legal conservatives use to justify tilting the playing field against weaker parties.

This was an especially welcome move in that the Court was willing at last to say that contracts of adhesion (form contracts) are inconsistent with the realities of life in a smartphone-centered world. In Professor Tokson's words near the end of his second column:

The Court rejected these arguments in favor of a more holistic, common-sense view of the modern world. Perhaps Location History, or Google Maps itself, is not essential to life in today’s world. But this is far too narrow a view of how life works. Cellphone users use apps, if not Google Maps then another app, and in doing so they inevitably disclose personal information to service providers. This is the “price of conventional cell-phone usage,” and cellphone usage is a pervasive and insistent part of daily life. In this sense, the disclosure of location information to some company or another is not voluntary in any meaningful sense, and it is certainly not a waiver of a person’s constitutional rights. It’s the inevitable result of living in the modern world.

How could that not be good? It is, yet I cannot help but think that a cynical response is also entirely realistic. Professor Tokson added that "[t]he Court also correctly noted that Google’s permission screen did not inform users about virtually any aspect of its data collection and use." I am not, of course, faulting Professor Tokson for this, because he is accurately and faithfully describing what the majority included in their opinion. It is the mischief that such dicta can cause that worries me.

And to be clear, the quoted words truly are dicta. Understood within the context of the overall opinion, it is merely an "oh, and by the way" kind of comment that could and should have been left out of the final draft. Why?

Imagine that you are a lawyer for Google or any of the other oligarchs. You look at that footnote, and what do you do now? Even in light of the majority's entirely welcome (to the point of jaw-dropping) rejection of contract formalism in digital "agreements," this is simply an invitation for the bad guys to grab onto that unnecessary dicta and say, "Well, the Chatrie decision said that we didn't provide information on our permission screens. Guess what we just did?"

But again, one might push back at my pessimism and say that an ideologically mixed majority joined an opinion that, properly understood, should result in anyone looking at my hypo and responding: "Come on! They essentially said that it didn't matter what was on the permission screen, because they surprised us all by admitting that clicking permission screens is not true permission in the relevant legal sense. Get over it." Why am I so stuck on this? I will offer an anecdote and then a general observation.

I have not been able to track down the case, but the Supremes in the 1990's wrote a 9-0 decision on Fourth Amendment searches that included a two-justice concurring opinion. That additional opinion offered a hypo that was not presented by the facts of the case, with the two justices suggesting that such a variation on the facts might -- might -- raise a more complicated issue at some point. None of the other justices signed that concurrence. Even so, I saw a district court judge soon thereafter ruling against a defendant on the basis that his facts were similar to those in that concurrence's hypo. Even after being reminded that the controlling opinion did not carve out any exceptions, the judge insisted on ruling against the defendant.

An anecdote is an anecdote, and we can surely find many examples of judges misapplying case law much more egregiously than in this example. Even so, seeing that example play out a quarter of a century ago has always stuck with me, precisely because the dicta was so flimsy yet served the judge's purpose of claiming not to be defying precedent. And in Chatrie, it is the majority itself that signed onto the dicta, not merely a subset of those justices. In a controlling opinion that was so well crafted, this stray footnote strikes me as sloppy at best, reckless at worst.

My general observation is that this Court in particular will not continue to be welcoming to modernist arguments of the sort that the Chatrie majority adopted. The conservative legal movement at its very foundation is opposed to realism, living constitutionalism, and all that. The Chicago School's scorn fueled a backlash against Cardozo's contract modernism, and this Court's six Republican-appointed justices show no inclination to revise that scornful dismissal except in one-off cases like this one. They certainly have no problem with arbitration clauses, much less with coerced confessions. Such a court is not to be trusted with any of this nonsense.

Even opinions that are seemingly huge wins can, therefore, invite bad-faith responses. If I were a betting man (one who had somehow not already lost everything on prop bets), I would bet the house that that one sentence from Chatrie will be its (our) undoing.

In the larger scheme of things, however, even the worst-case version of how this case could unravel is nothing compared to what the six-justice majority has been doing to the country with its other rulings.

(2) Legalistic lawlessness in the "other' immigration case

Most of the focus among legal commentators on June 25 was on Mullin v. Doe, the horrendous decision in which the usual six suspects allowed the Trump Administration to remove so-called Temporary Protected Status (TPS) from ~~brown and black people from shithole countries~~ thousands of Syrians and hundreds of thousands of Haitians living in the US. The Dorf on Law columns that I mentioned above by Professors Berger and Dorf both described just how bad that decision was.

A second case announced that day, however, is also worth thinking about for a moment. As the American Immigration Council (the Council) explained, "Mullin v. Al Otro Lado, endorses a policy dating back to the last months of the Obama administration which [italics sic] permitted border officials to turn away asylum seekers arriving by land to ports of entry along the U.S.-Mexico border." Recalling that President Obama was justifiably criticized at the time as the "deporter-in-chief," the seeming bipartisanship of the current Court's ruling is much less benign than it might seem at first glance.

In any event, the Council summarizes the predictable 6-3 opinion:

U.S. law provides that any person who is physically present in the United States or who “arrives in” the United States may apply for asylum. Congress further directed that immigration officers must “inspect” any noncitizen who “arrives in” the United States to determine if they should be admitted to the country — a function U.S. Customs and Border Protection (CBP) officers carry out thousands of times per day at ports of entry. ...
Today, the Supreme Court ... overturn[ed] a 9th Circuit decision which had found that CBP had an affirmative obligation to process people who arrive at ports of entry but who have not yet stepped on U.S. soil after CBP officers have blocked their passage. The Court found that there was a difference between “arrives in” and “arrives at” the border, and declared that only those individuals who have physically set foot in the United States have a right to be inspected and apply for asylum.

Judas Priest!! Two of the justices who in Chatrie were seemingly so realistic about modern life and who were unwilling to go with the formalistic idea that clicking yes on a "permission screen" granted genuine permission returned to their dishonest roots and said with straight faces that so long as an agent can physically block a potential asylum seeker from putting a toe on US soil, the law requiring them to be processed does not apply.

As the dissenters wrote, their six benighted colleagues preposterously "bless[] the Executive Branch’s decision to slam the door shut on all who are fleeing persecution, despite the detailed inspection and asylum system that Congress enacted and commands." Or more pointedly, the Court's now-openly MAGA supermajority allows a tendentious literalist interpretation of a word in a statute to negate the rest of the statute. "We, Congress, are setting up a system by which potential asylees will be processed. But because we wrote 'in' rather than 'at,' we obviously are allowing any president to ignore the whole thing."

Interestingly, this is another instance in which it feels like I have seen this movie before. When I was clerking, one of the largest categories of cases was from federal prisoners who would file pro se petitions (that is, legal documents that the prisoners wrote on their own, not with the assistance of an attorney). Although almost all such petitions were ultimately denied -- no matter the content, this being the US criminal justice system after all! -- every decision that we drafted cited the long-established requirement that pro se pleadings must be "liberally construed."

What does that mean, and why does it make sense? In standard legal proceedings, with all sides represented by counsel, courts understandably hold advocates to very strict standards. For an amusing recent example of this, note this anecdote in Professor Dorf's column yesterday:

I once wrote an amicus brief in support of the respondent in a Supreme Court case, with support from a law firm that agreed to print it. Under the Court's rules, the cover was supposed to be dark green. The firm produced a cover that was kinda sorta dark green but also kinda sorta brown--and also, weirdly speckled. The firm filed the brief without showing me the cover first. The clerk rejected it as not sufficiently green. Luckily, there was still time to re-file with a different, more conventionally dark green cover.

Again, one can see why courts would be extremely picky about such things, because of course every exception runs the risk of opening the floodgates to more and more deviations from standard protocols. All very sensible. By contrast, in pro se cases, and especially where the pro se litigant is in prison, no reasonable person could countenance summary denials of submissions that did not meet every tiny requirement of a court's rules of procedure.

But there are, of course, unreasonable people out there, many of them in judicial robes. In one case, a judge in my circuit floated an opinion in which he wanted to deny a pro se litigant's request on the most technical of grounds. When the other judges (most likely wondering whether their colleague had been smoking something) pointed to the "pleadings must be liberally construed" standard, the undaunted judge (a Bill Clinton appointee, by the way) replied in essence: "Aha, but that only applies to pleadings, and they aren't pleadings until they've been accepted by the clerk of court. The clerk, in turn, is required to turn back all submissions that are not jot-and-tittle perfect!"

Again, the other judges in that case had no intention of actually granting a federal prisoner the relief sought. God forbid. This guy, however, made it clear that he was tired of even pretending to take the pro se petitions seriously.

The column by Professor Dorf from which I quoted just above ended with an excellent discussion of legal analogies, and he showed that there are often difficult calls when drawing analogies. Here, however, there is no difficulty. A Tenth Circuit judge says, "I don't have to give these weak people any respect, because I can redefine 'pleadings' in a way that erases the minimal protections provided by the law." And now six Supreme Court justices say: "We don't have to give those weak people any respect, because we can redefine 'in' absurdly to make it impossible for any of those weak people to receive any protections provided by law."

In the end, then, both a good outcome (Chatrie) and a terrible one (Al Otro Lado) provide windows into the ways in which being unrealistic sticklers can -- and too often does -- allow courts to strip rights from the least powerful people in society. With this Supreme Court majority, we can expect more of the latter (already bad) and fewer of the former (only potentially bad) cases in the future

I will add some thoughts on other recent cases in Part Two tomorrow.

- Neil H. Buchanan

Chatrie and the Supreme Court's Embrace of Privacy Doctrine

2026-07-15T07:00:00.000-04:00

I've been blogging here (and here) recently about Chatrie v. United States, the Supreme Court's landmark Fourth Amendment case decided late last month. Chatrie held that geofence searches, which use cellphone data to track cellphone users in a certain area at a certain time, are Fourth Amendment searches requiring probable cause and a warrant. In today’s post, I'll talk about which theories of Fourth Amendment law the Court adopted in Chatrie and which it didn't. First, I’ll explore why Justice Gorsuch hasn’t gained any support over the past eight years for his property-centered approach to Fourth Amendment searches. Second, I’ll look at the bigger picture of the Court’s embrace of privacy and rejection of traditional measures in applying the Fourth Amendment to the modern world.

What Happened to the New Property Era in Fourth Amendment Law?

Justice Gorsuch wrote separately in Chatrie, concurring in the result. He argued that the Court should discard the Katz test, i.e. the “reasonable expectation of privacy” test, and instead resolve the case on the basis that Chatrie had a property right in his Google Location history. I discussed the profound ambiguity of the property question in one of my previous posts, and indeed there is little in existing law to suggest that an internet user would have a property right in data compiled by Google, stored on Google’s servers, and likely used exclusively by Google.

But perhaps the most remarkable thing about Justice Gorsuch’s concurrence is that, just as in Carpenter, he is writing it alone. Since 2018, when Gorsuch suggested a property-based approach to Fourth Amendment law, the membership of the Court has changed substantially, with Justices Barrett and Kavanaugh replacing Justices Ginsburg and Kennedy. Gorsuch’s approach is (at least nominally) grounded in textualist and traditional understandings of the Amendment rather than evolving notions of privacy, and thus was well suited to appeal to the new Court. A host of legal scholars and other legal actors have proposed property-centered and positive-law-centered approaches to Fourth Amendment law in recent years. The lead argument in Chatrie’s merits brief was that Chatrie had an affirmative property right in his Google Location History. Adam Unikowsky, who argued Chatrie’s case before the Supreme Court, focused almost exclusively on this position during oral arguments. Chatrie was almost a perfect case for the property argument, because Location History is especially accessible to users compared to other forms of digital metadata, and Google went out of its way to characterize this data as belonging to the user, who could access and delete it as they chose.

But Justice Gorsuch picked up exactly zero votes for his approach. Meanwhile, the privacy-based framework of Carpenter has gained Justice Kavanaugh’s vote—indeed he voted for the expanded version set out in Chatrie—as well as Justice Barrett’s vote, as she noted in a short dissent. Barrett believed that Chatrie had voluntarily exposed his movements to Google, but she “ha[s] no quarrel with Carpenter v. United States.”

There may be several reasons why the property approach has failed to catch on, but the primary reasons are likely that it would make Fourth Amendment law even less clear than it has been under the Katz test and would underprotect digital data if applied rigorously. Grounding modern Fourth Amendment law in actual property rights works poorly because property law is complex and uncertain, with numerous forms of ownership that are divisible and combinable across people and time. The property law of digital data is even less certain, and related forms of positive law like privacy torts are far less developed than Fourth Amendment law, with its decades’ worth of precedents at all levels of the judiciary. Property rights are also malleable, and governments can manipulate them in order to facilitate pervasive surveillance. Property just doesn’t work as the basis for a wholly different body of law, and making it the center of Fourth Amendment rights would create a tangled doctrinal mess.

Justice Gorsuch’s concurrences in Chatrie and Carpenter suggest that courts should apply property law capaciously, extending it beyond its current bounds to cover things like Location History stored on Google’s servers and even cell site data compiled by cell service providers from which cell phone users are wholly excluded. But a more rigorous application of property law would likely underprotect digital data, the target of much of modern surveillance. Sensitive forms of modern information like web surfing data, communications metadata, medical and biometric data, and more are unlikely to be protected by a property-based Fourth Amendment approach.

There are other problems with Justice Gorsuch’s supposedly textual and historical approach, which is only partially faithful to the original text and fails to reflect the Founders’ well-documented concern with privacy as well as property rights. But the problems of administrability and limited applicability to modern contexts are likely fatal for Gorsuch’s attempted reimagining of Fourth Amendment law in any event. The push by Gorsuch to make the Fourth Amendment turn on property concepts seemed like the next big thing. After Chatrie, it seems more like a lone Justice’s misguided theory.

The Triumph of Privacy in Modern Fourth Amendment Law

At a higher level of abstraction, Chatrie also indicates that the Court is pursuing a privacy-centered Fourth Amendment jurisprudence, one that is flexible enough to preserve digital privacy in the modern era. Future cases will present different problems, and the Court may not always approach them with the sophistication and depth of Chatrie. But at least in general, the Court will not anchor the Fourth Amendment to the fading past of the pre-digital era, or address novel contexts on the basis of distant analogies to familiar ones.

More traditional approaches to Fourth Amendment law are falling to the wayside as surveillance technologies and practices continue to advance. This transformation of Fourth Amendment law and theory is necessary if the Fourth Amendment is to continue to provide meaningful protections against government intrusions in the modern era. To its enormous credit, the Court has shown itself willing to change Fourth Amendment law accordingly, at least in the limited contexts it has addressed over the past decade or so.

In doing so, it has preserved the original spirit and function of the Fourth Amendment while updating it for a new world. And it has rejected more traditional approaches that would otherwise provide fewer and fewer meaningful constraints on intrusive government surveillance over time. Justice Alito’s dissent gives a eulogy of sorts for the old approach. He contends that Chatrie would have come out differently under historical Fourth Amendment precedents or “traditional search-and-seizure principles.” He laments that, “until Carpenter, this Court held that the Fourth Amendment protected a person’s security in only his own papers and effects, not those of a third party.” He grudgingly accepts Katz’s expansion of the Fourth Amendment to cover wiretaps and bugs, but only because of what he alleges was a cautious implementation and limited impact.

The Chatrie majority rejects all of these points. It embraces a robust application of Katz and leans heavily on Carpenter. Its guiding star is Justice Brandeis’s famous dissent in Olmstead v. United States, a 1928 case that applied the traditional principles of the Fourth Amendment to reach a disastrous holding that ushered in the J. Edgar Hoover era of widespread surveillance abuse. As the Chatrie court writes, the Framers of the Fourth Amendment could not have anticipated the telephone or the wiretap, but they did understand the “transcendent importance” of privacy against government surveillance. In its adoption of this idea, and even more so in the holdings of the opinion itself, Chatrie embraces privacy as the core principle of Fourth Amendment protection, unfettered by the specific rules of prior technologies.

In the scholarship of the Fourth Amendment, an influential approach counsels proceeding by analogy to physical world contexts when applying the Fourth Amendment to digital data. Most fully explicated by Orin Kerr in his recent book The Digital Fourth Amendment, this approach would depart from non-digital paradigms only when new developments “dramatically” expand or curtail government power. Kerr attempts to translate between online data and physical space, drawing analogies between forms of digital information and their superficially similar albeit functionally different real-world predecessors. Following this analogical approach, he concludes that the contents of online communications should generally be protected while non-content data like location information or to/from message metadata should generally be unprotected. Kerr specifically addresses geofence surveillance in his book, arguing that it should not be protected to any degree by the Fourth Amendment because cellphone users voluntarily disclose their data to Google.

The Supreme Court rejected this specific argument in Chatrie, and it has also departed from the broader approach. This is the second case in a row where the Court has extended Fourth Amendment protection to non-content metadata generated by a cellphone or app. Rather than adopting the rules of pre-internet surveillance, or cautiously expanding existing law, the Court has departed from existing paradigms in order to firmly protect privacy against new forms of surveillance. It has focused directly on privacy and the appropriate balance between it and law enforcement interests, and less on adjusting old laws while hewing closely to them.

This is all the more remarkable given the general conservatism and affinity for tradition of the current Court. But there is a reason for it. The traditionalist paradigm struggles to effectively address the complex questions posed by modern technology, and the Supreme Court has increasingly left it behind. A more modern conception of privacy, developed in cases like Carpenter and a substantial scholarly literature, has, instead, carried the day.

--Matthew Tokson

Historical Analogies in Second and Seventh Amendment Cases--And Analogies More Generally

2026-07-14T13:12:46.077-04:00

A recent Fifth Circuit decision, Texas Tobacco Barn v. US Dep't of Health & Human Services, was handed down two years to the day after the Supreme Court decision it applied to hold that agency proceedings within the FDA resulting in civil penalties violate the Seventh Amendment. After providing a bit of background for those readers who don't have the misfortune to follow the Supreme Court's convoluted federal jurisdiction rulings as closely as I do, I'll use the case as an opportunity to compare and contrast the historical analogy approach the Roberts Court has taken to the Second and Seventh Amendments. For those readers already put off by the subject, here's the bottom line: the Court's purported use of historical analogies is mostly a mask for its normative preferences.

Now, that background: In its 2024 decision in SEC v. Jarkesy, an ideologically divided 6-3 Court held that the Seventh Amendment requires jury trials whenever the government seeks civil monetary penalties in a case that is analogous to a civil action available under the common law circa 1791, so long as the case does not fall into one of a short list of exceptions for so-called "public rights" cases. Most of what I'll discuss today concerns that first inquiry: the analogy. However, I'll first say a word about public rights.

Article III of the Constitution assigns the judicial power to life-tenured judges and justices, but from early in the Republic, Congress has assigned adjudicatory tasks to non-Article III personnel. It still does so today, with Social Security Administration disability determinations alone dwarfing the number of adjudications by the Article III judiciary. If all such cases needed to be decided by Article III judges and justices, the life-tenured judiciary would need to be expanded enormously. Thus, since relatively early in our history, the Supreme Court has recognized that Congress can assign some adjudicatory responsibilities to non-Article III federal adjudicators.

Which responsibilities? What has become the canonical formulation was given by the Supreme Court in 1856 in Murray's Lessee v. Hoboken Land & Improvement Co.: "there are matters, involving public rights, which may be presented in such form that the judicial power is capable of acting on them, and which are susceptible of judicial determination, but which Congress may or may not bring within the cognizance of the courts of the United States, as it may deem proper."

What makes a case a matter of "public rights?" The Court has given various formulations over time. It certainly includes cases brought against the government for money, partly because in such cases, the government enjoys sovereign immunity and thus can waive such immunity on condition of adjudication on its terms. Cases involving tariffs have also generally fallen within this category. I won't get much into it now except for two observations.

First, the public rights category originated as a means of deciding which cases could be assigned to non-Article III adjudication as an interpretation of Article III. Only later, in the 1989 case of Granfinanciera, S.A. v. Nordberg, did the Court import its public rights jurisprudence into its approach to the Seventh Amendment.

Second, and notably, Granfinanciera and other late-20th-century cases restricting congressional power to assign cases to non-Article III adjudication lacked a clear partisan valence or were arguably tinged liberal. Justice Brennan wrote the majority opinion in Granfinanciera as well as the plurality opinion in the 1982 Northern Pipeline case that adopted a formalistic and fairly restrictive view of congressional power to utilize non-Article III adjudication. However, over the last couple of decades, the Roberts Court has discovered that by narrowly construing public rights in both Article III and Seventh Amendment cases, it can limit the adjudicatory power of agencies. What began as a neutral or plaintiff-protective set of doctrines has become one of the deregulatory tools of the Roberts Court. That's why Jarkesy was 6-3 on ideological grounds.

Turn now to the first part of the Jarkesy test: whether a statutory claim by the government is sufficiently analogous to a 1791 common law claim to implicate the Seventh Amendment. In Jarkesy itself, the Court said that the SEC's enforcement of securities fraud laws were akin to fraud suits under the common law in the founding era. In Texas Tobacco Barn, the Fifth Circuit said that FDA civil penalty proceedings against the defendant for selling vape products without authorization was akin to a "trespass-on-the-case . . . against the 'unwholesome practices' of selling 'bad provisions or wine'" (quoting Blackstone) and to "the common law cheat action" available to one who has been "'defraud[ed]' by false affirmations that something was of 'superior Quantity or Quality than it [was]'" (quoting an 1803 treatise on English common law).

I confess to not knowing enough about the common law of the late 18th century to specify the various ways in which modern securities fraud is similar to and different from trespass on the case (which is a cause of action I remember learning about in law school) or cheat (which I had never encountered before reading Texas Tobacco Barn). I do know that there was a dissent in Texas Tobacco Barn. That dissent (which treated the historical analogy question as relevant to the public rights question, but that need not concern us) argued that enforcement of the FDA's limits on selling unauthorized vapes is similar to the common law actions the majority identifies only at a very high level of generality.

There was also a dissent in Jarkesy. It mostly objected to the majority's application of the Granfinanciera framework to a case brought by the government to enforce a statutory obligation, arguing that the majority's approach was inconsistent with the 1977 Atlas Roofing case. In the course of that argument, however, the Jarkesy dissent did observe that modern securities law differs from common law fraud in at least one critical respect: the latter, unlike the former, requires that there must be "actionable harm to an individual" for a case to proceed.

Now for some crass legal realism. The two Fifth Circuit judges in the Texas Tobacco Barn majority are Republican appointees, while the dissenter is a Democratic appointee. We see the same ideological pattern in the Supreme Court alignment in Jarkesy. Perhaps this is explained by some tendency of conservatives to see similarities and liberals to see differences?

Nope. For one thing, there's no reason to expect such tendencies. For another, we see exactly the opposite set of tendencies in Second Amendment cases. There, pursuant to NYS Rifle & Pistol Ass'n v. Bruen, the question whether a law regulating firearms currently in common use is valid turns on whether it is sufficiently analogous to laws regulating firearms in the founding era (or possibly around 1868, when the Fourteenth Amendment was ratified). And lo and behold, in those cases, when the Court divides ideologically, it is the Republican appointees who say the current laws are disanalogous and the Democratic appointees who say they are analogous.

Thus, no general view about what makes a modern law analogous to founding-era (or Reconstruction-era) laws can explain the ideological pattern. When finding analogies allows Republican appointees to stymie agency regulation (as in Jarkesy), they do so; when finding disanalogies allows Republican appointees to stymie firearms regulations (as in Bruen and its progeny), they do so. And vice-versa for the Democratic appointees.

However, to be fair to the Democratic appointees on the Supreme Court, in the relevant cases, they repeatedly object that the determination whether current law A is analogous to 1791 (or 1868) law B is highly manipulable. Justice Jackson has been particularly vociferous in objecting to the historical test as no real test at all. And that's apart from the fact that, as Professor Segall has argued repeatedly (and most recently here) on this blog, the very idea that we would determine what gun regulations are permissible today by asking only what gun regulations were widespread in the very different world of 1791 (or 1868) makes no sense.

There I would conclude, but I want to consider the possibility that the objection I have raised proves too much because it calls into question analogical reasoning in all settings. That would be problematic because analogical reasoning is quite common in the law. Justice Thomas's Bruen opinion actually captured the point pretty well:

When confronting . . . present-day firearm regulations, this historical inquiry that courts must conduct will often involve reasoning by analogy—a commonplace task for any lawyer or judge. Like all analogical reasoning, determining whether a historical regulation is a proper analogue for a distinctly modern firearm regulation requires a determination of whether the two regulations are “relevantly similar.” C. Sunstein, On Analogical Reasoning, 106 Harv. L. Rev. 741, 773 (1993). And because “[e]verything is similar in infinite ways to everything else,” id., at 774, one needs “some metric enabling the analogizer to assess which similarities are important and which are not,” F. Schauer & B. Spellman, Analogy, Expertise, and Experience, 84 U. Chi. L. Rev. 249, 254 (2017). For instance, a green truck and a green hat are relevantly similar if one’s metric is “things that are green.” See ibid. They are not relevantly similar if the applicable metric is “things you can wear.”

So far, so good. Specifying a relevant metric is a normative enterprise, but sometimes there will be consensus about what the relevant normative move should be. In Second Amendment cases, the Bruen opinion continues, there are "at least two metrics: how and why the regulations burden a law-abiding citizen’s right to armed self-defense." If one accepts that finding historical analogues is the right way to measure the constitutionality of contemporary firearms regulations, that's sensible enough. It responds to a question of the sort "do we care about color or function?"

However, the Thomas response doesn't answer a different question about analogical reasoning: how similar?

Suppose we decide we care about color. I once wrote an amicus brief in support of the respondent in a Supreme Court case, with support from a law firm that agreed to print it. Under the Court's rules, the cover was supposed to be dark green. The firm produced a cover that was kinda sorta dark green but also kinda sorta brown--and also, weirdly speckled. The firm filed the brief without showing me the cover first. The clerk rejected it as not sufficiently green. Luckily, there was still time to re-file with a different, more conventionally dark green cover.

When it comes to color, there are clearly going to be edge cases. That's even more true with respect to historical analogues. Moreover, there will be level-of-generality questions. In this past Term's decision in Wolford v. Lopez, the majority said that founding-era laws excluding armed persons from entering private land were about preventing poaching, a different why from the challenged Hawaii law at issue in the case. Justice Kagan, in dissent, said this:

The “why” is sufficiently close. Both sets of laws respond to the dangers and harms that someone with a gun can cause on another person’s property. That the old laws had a special (though by no means exclusive) concern with poaching does not matter.

Bruen and later Second Amendment cases say that an analogue need not be a "twin" or a "dead ringer" but they do not say how close the similarity must be, except in generalities that are normatively disputed.

I do not dispute that analogical reasoning has an important place in the law. However, where values are contested--as they are with respect to the administrative state and firearms--the fact that we see ideology-based decision making is strong evidence that the judges and justices are deciding first and drawing analogies or disanalogies second.

-- Michael C. Dorf

What is Fourth Amendment Law Going Forward?

2026-07-13T07:00:00.000-04:00

Last week, I blogged here at Dorf on Law about Chatrie v. United States, the Supreme Court’s first major Fourth Amendment case in eight years. Chatrie held that geofence searches, which use cellphone data to track cellphone users in a certain area at a certain time, are Fourth Amendment searches requiring probable cause and a warrant. Chatrie was a huge win for digital privacy, and it substantially expanded the scope of the Fourth Amendment. In today’s post, I’ll explain what Chatrie means for Fourth Amendment law going forward.

The Chatrie opinion potentially transformed Fourth Amendment search law in several ways. In 2018’s Carpenter v. United States, the Supreme Court held that requesting cell phone location data over a seven day period in order to track a suspect’s movements was a Fourth Amendment search requiring a warrant and probable cause. It discussed several factors that contributed to its decision, but the three that lower courts have used most frequently in the wake of Carpenter are: 1) how revealing the information is, 2) how much information is sought, and 3) whether the target voluntarily disclosed their information to a third party. In hundreds of cases decided after Carpenter, lower courts have used some or all of these factors in resolving unsettled Fourth Amendment issues. As I have argued, these factors can constitute a Carpenter test that courts can expressly adopt in frontier Fourth Amendment cases.

Chatrie modifies or destabilizes the latter two of these three factors. In doing so, it is likely to transform the law that lower courts apply to new Fourth Amendment questions. It establishes what is essentially a “Chatrie test” that courts can apply going forward. Below, I explain how Chatrie has preserved or changed the three factors of the Carpenter test.

First, the Court still plainly considers the revealing nature of data to be of paramount importance. It leads its substantive discussion of the case with a discussion of how precise and revealing Location History data is. It traces back the importance of this factor to Carpenter, characterizing it as one of the things “Carpenter relied on to find that law enforcement officers conducted a Fourth Amendment search.” It also provides several details regarding the precision of Location History, which “provides an even more fine-tuned picture of a person’s movements” than the cell site data at issue in Carpenter, tracking them to within 20 meters rather than one-eighth to four miles. The Court concludes that Location History is far more precise, and therefore far more threatening to privacy, than the surveillance in Carpenter.

The second Carpenter factor was the amount of data sought, and here the Court departs sharply from Carpenter. That prior case was replete with references to the amount of data at issue and the duration of surveillance (which is closely related in practice to the amount of data captured). In Chatrie, the Court echoes much of this language, expressing concern that the government can track someone “every moment of every day," warning against “tireless and absolute surveillance,” and noting that a person subject to warrantless retrospective surveillance (i.e. surveillance that reaches back into the past) “has effectively been surveilled [for a] boundless time.” However, the Court frames these points as more of a concern about retrospective surveillance than long-term surveillance. And it expressly criticizes the idea that some Fourth Amendment protections may kick in only once an intrusion goes too far or goes on for too long. It even contends, in a footnote, that caring about how long surveillance lasts or how much it gathers would create substantial line-drawing problems. These two concepts, that tireless surveillance is a concern and that courts should not consider how long surveillance goes on for, conflict somewhat, and they fit together oddly in the same opinion. But they can be reconciled, at least in large part.

The most faithful reading of the opinion is likely that the Court is adopting a very pro-privacy approach to the amount question. As proposed in a 2013 article by David Gray and Danielle Citron, this approach would essentially say that what matters is not how much information is gathered but whether the technology at issue has the potential to facilitate extensive and revealing surveillance. So long as a technology like geofencing might allow the police to engage in invasive long-term surveillance, then it should be treated as doing so—even if the actual duration of the surveillance in a given case is only a minute. This appears to be what the Court has in mind when it discusses the potential for boundless surveillance via geofence and then says it does not matter how long the actual geofence surveillance lasted. The Gray and Citron approach also addresses the administrability concerns the opinion raises.

Finally, there was the third Carpenter factor, which looked toward whether a person voluntarily disclosed their information to a third party. The Chatrie opinion implicitly downplays the importance of this factor, much like the Carpenter opinion, which spent only a paragraph discussing it. But Chatrie does not entirely do away with the voluntariness inquiry. Instead it transforms that inquiry. Carpenter emphasized that cellphone use was basically inescapable in modern life, and that cellphones automatically disclosed location information to cell service providers whenever they were switched on. In Chatrie, the government argued in favor of a strict, literal application of both these points. It noted that Chatrie checked yes on a permission screen during app setup and so his information disclosure was not entirely automatic. And it noted that one could easily get by in modern life without activating Google Location History.

The Court rejected these arguments in favor of a more holistic, common-sense view of the modern world. Perhaps Location History, or Google Maps itself, is not essential to life in today’s world. But this is far too narrow a view of how life works. Cellphone users use apps, if not Google Maps then another app, and in doing so they inevitably disclose personal information to service providers. This is the “price of conventional cell-phone usage,” and cellphone usage is a pervasive and insistent part of daily life. In this sense, the disclosure of location information to some company or another is not voluntary in any meaningful sense, and it is certainly not a waiver of a person’s constitutional rights. It’s the inevitable result of living in the modern world.

What, then, is left of the voluntariness prong of Carpenter? It remains somewhat uncertain, but it seems that few information disclosures will be deemed sufficiently voluntary as to threaten Fourth Amendment rights, at least based on the language and logic of Chatrie. The voluntariness inquiry after Chatrie is best interpreted to ask whether someone has disclosed their data so broadly or openly as to constitute a waiver of their rights. Perhaps overtly waiving one’s constitutional rights (not just overtly saying yes to information disclosure); or posting something for all the internet to see; or freely choosing to turn data over to the government itself would be considered sufficiently voluntary to erode a person’s constitutional protections. But simply disclosing data in the course of using the internet or a smartphone will not threaten Fourth Amendment rights.

Going forward, we can identify a “Chatrie test” to guide future cases. The test looks to three factors: 1) how revealing the information at issue is; 2) whether the surveillance technique at issue has the potential to subject people to extensive surveillance; and 3) whether the person disclosed their data so broadly or openly as to constitute a waiver of their rights. The relative importance of these factors is largely still to be determined, but revealing nature is likely to remain the most important of the three factors, as it was under Carpenter. In practice, more and more of the action of Fourth Amendment cases will be courts asking, how revealing is this surveillance practice of the details of a person’s life?, especially if we imagine the practice being used extensively for a more-or-less unlimited time. This is a very favorable inquiry for defendants arguing that the Fourth Amendment should cover a new surveillance practice. Indeed, Chatrie marks a new era in Fourth Amendment law, one characterized by robust Fourth Amendment rights in new digital contexts, and a flexible, realistic approach to data disclosures.

--Matthew Tokson

Flawed Country, Inconsiderate Guests: What Being "Pro-Working People" Truly Means

2026-07-10T09:50:16.036-04:00

Not having been brought up on soccer/football, I have only in the last twenty years or so learned anything at all about the World Cup. This year is the men's version, and even with my years of living outside of the US at least temporarily behind me, I have been paying fairly close attention to the tournament and everything around it. Not that I have actually watched any matches, mind you, given the stranglehold that Fox has on the broadcast rights, but I have certainly followed the results and surrounding news carefully enough to have formed three thoughts that I will share here to end the week.

Actually, it is not so much three thoughts as two thoughtlets and one angry observation.

Thoughtlet #1: As soon as I learned that this year's tournament had been expanded in both the number of teams and by adding a Round of 32 to the knockout rounds, I had no doubt that the commentary would lapse into one of my longstanding pet peeves: meaningless "first evers." I have commented on this in the context of both college football and the NFL, where everyone acts as if it is a big deal when a season-long record falls after games are added to the season. And sure enough, teams that made it into the Round of 32 were being lauded for "making the knockout round for the first time ever," and players' goals in knockout games (individual goals and contributions toward goal totals) will rise as a matter of course but still be called HISTORIC. Oy. I saw it coming, but it is still annoying.

Thoughtlet #2: After the Trumpists managed to ruin any good feelings from the Winter Olympics by hijacking the men's hockey gold and disparaging the women's hockey gold (and women in general), it was a relief not to see anything like that happening in the World Cup. Yes, it was ugly to see how the Trump Administration was selectively using immigration enforcement in unprincipled ways, but the vibe of the football itself had not been ruined by any White House actions.

As everyone now knows, however, Trump managed to turn the entire world against a perfectly likable (albeit high-mid in talent, at best) American team. How? Trump called the guy who came up with the FIFA Peace Prize and then awarded it to Trump last year, convincing him to allow the best US player to play after he had been disqualified by a red card in the previous game. That was bad in every way, but it at least did provide some comic relief when Trump claimed to know the game very well but then said that he was surprised that red cards resulted in disqualifications from subsequent matches.

At best, Trump's rambling statement amounted to saying that a core rule of international football should be changed, because it did not make sense to him to penalize a player for subsequent games. To be clear, the US has such rules, including the college football rule that a player who is called for "targeting" must sit out the first half of the next game. That rule has been tweaked over time, but there is nothing weird about sports rules that extend punishment past a particular contest. But Trump? Well, it just didn't make sense to him. So even though the rule exists, it should not be enforced, he blithely asserted, because who would write such a rule?

The analogies to the way Trump thinks about elections and the legal system more generally are obvious. Even so, I was greatly amused that he had done the equivalent of saying: "What is this rule where basketball players can get called for traveling? Why should anyone have to bounce the ball?" or "False starts on a track? He started before everyone else, which makes him smart"; or "Fifteen yards and a loss of down? What kind of commie scum would think that made sense?"

Angry Observation: One of the YouTube channels that I watch that is generally lighter in content is called Feli from Germany, on which a very perky now-30ish German woman posts the familiar run of culture clash videos, with listicles like "12 Things you NEED TO KNOW before traveling to Germany! *in 2026*." She moved to the US about ten years ago and became an American citizen, but last year she and her new American husband moved back (in her case) to Germany. Even then, her "reasons why" video only vaguely scraped up against anything political. She does occasionally take on slightly heavier topics, but she is not a go-to source for depth (and I doubt that she would find that assessment troubling).

In any case, she recently posted a video about non-American fans' reactions to being in the US for the first time: "World Cup tourists discover everything AWESOME about the USA! (German-American Reacts)." Most of the video was the expected light fare, gathering much of the content that has made the rounds of social media, including things like non-Americans' surprise at the enormous serving sizes in restaurants, shock at the idea of free drink refills, and on and on. Most everyone has by now heard that Europeans in particular have somehow decided en masse that Ranch Dressing is the greatest thing ever, to the point (according to Feli's video) where US manufacturers have rushed flight-friendly take-home cases of ranch onto the market. All good fun.

My angry observation, however, involves these visitors' reactions to the tipping expectations in the US. That is a culture shock that people talk about all the time, and because it has a tax law angle, I have even written about it here on Dorf on Law, such as this column during a trip to Australia and New Zealand in 2016.

Yes, tipping is a foreign idea to foreigners. As Feli pointed out, however, the current crop of ecstatic visitors to the US who are delighted and surprised by the big-but-not-so-bad-it-turns-out USA suddenly become quite surly when the topic turns to tipping. She added a section to her video to point out that they are wrong to do so, and in the latter stages of the 36-minute video she also corrects some politics-tinged hot takes from non-US visitors.

What is it about this surly reaction that is making me angry? Feli put up example after example of people saying, in one way or another: "Hey America, pay your workers a fair wage, like we do! It's not my responsibility to pay your workers for you." What rot. Actually, it is much worse than that: perhaps I should call it rot-plus.

To be clear, I of course agree that the US should increase the minimum wage (and enforce it) nationwide; and I have long argued that the very notion of a "sub-minimum wage" (a logical impossibility, but that is hardly the important point here) for service workers should be abandoned. That is not the rot-plus. What infuriates me, of course, is the sense of entitlement from people who say, "Not my problem," while taking advantage of a system that can only work if it is their problem. Should that system change? Yes. Does it exist in bad form now? Emphatically yes.

Any number of analogies could make this obvious point, but the most vivid one that I have been able to conjure is to picture a bunch of Americans who have fallen off a boat and need life preservers to survive. A boat of Europeans pulls up and (after taking advantage of whatever the US boat has to offer) then pulls away without helping the drowning people, shouting as they steam into the sunset: "Why should we pay for life preservers when the US government should have made the boat safer in the first place? We don't fall off of our boats!"

To be clear, the free refills and huge portions that the visitors to the US are ooh-ing and aah-ing about are offered at lower prices specifically because the restaurants and pubs continue to lobby the US federal and state governments to offload the cost onto customers. That should change, but unless it does, the "Let the employers pay for it, not me" sneering retort more accurately means: "I don't care that you're telling me that the employers won't pay for it, even if it means that the people bringing us plate after plate of cheap fatty foods are working for nothing."

The reason I am bothering today to emphasize what should surely be an obvious and immediate response to the "Not my problem, Jack" attitude is that it uniquely exposes a lack of ... what to call it? ... class solidarity, human compassion, or simply not being a jerk.

In my column earlier this week regarding the spectacular Graham Platner mess in the US Senate race in Maine, I faulted Democratic progressives who hide behind the ideas of "being for the people" and "promoting economic justice" while backing an obvious liar (and now credibly accused rapist) because he is supposedly a Regular Guy™, which ended up meaning that they think that Regular Guys™ are irretrievably -- ahem -- "rough around the edges."

As I argued on Tuesday, that is the ultimate in condescension, treating working class people as though they all are so uncouth (at best) that they must be coddled. Or, as one commenter on Michelle Goldberg's New York Times column discussing that fiasco put it: "And the left wing has insulted many working class folks by assuming a person of Platner’s character was representative of their values."

Two paragraphs above, I put "being for the people" and "promoting economic justice" in scare quotes. That is not to disparage either idea, of course, because I enthusiastically support both goals. Instead, I want to make it clear that everyone should support those ideas in reality and not merely as rhetorical cover.

And the visitors to the US are claiming that they support US workers, but only by saying that they deserve a different set of laws under which everyone could work for a fair wage. Wonderful. Great. But the servers who are working in this reality are being stiffed with $0 tips on $700 checks from customers who had them running for hours. I forget who said "I like the people, it's just that I don't like people," but "I support workers unless it ends up inconveniencing me" is not even that deep.

As the title of this column summarizes it, the US is indeed a country with many flaws, but guests who enjoy the benefits of those flaws and then harm the very workers they self-righteously claim to support are, to put it bluntly, inconsiderate sh*ts.

- Neil H. Buchanan

Is the Roberts Court Hyperopic or Willfully Blind?

2026-07-09T12:20:11.382-04:00

[N.B. The following essay was first published on SCOTUSblog. The version below includes one additional paragraph and some formatting that do not appear in the SCOTUSblog version.]

Speaking at a Federalist Society event the day the Supreme Court wrapped up its latest term, attorney Kannon Shanmugam described an “emerging theme” in the case results. “On issues of . . . broader significance,” the head of Davis Polk’s Supreme Court and appellate practice group said, “the, quote-unquote, ‘conservative’ side is typically winning. On issues that are more specific to this administration, the outcomes are sometimes different.”

I agree with Shanmugam’s view about the Court’s conservatism with respect to the issues of broad significance – what I would call issues of longstanding interest to conservatives. In the term just completed, LGBTQ advocates lost cases involving conversion therapy and transgender athletes. The Court validated Second Amendment claims in two separate cases (although even the liberal justices went along with the result in one of them). The conservative super-majority continued its long-running project of dismantling the Voting Rights Act in a ruling that was handed down just in time for Republicans to further gerrymander their congressional districts before the upcoming midterm elections. By the usual 6-3 vote, the conservatives invalidated a provision of federal campaign finance law. And perhaps most significantly, the Court struck down statutory restrictions on the president’s power to remove the leaders of nearly all independent federal agencies.

I also agree with Shanmugam about the most administration-specific case of the past term. In rejecting President Donald Trump’s effort to impose sweeping and unprecedented tariffs under the International Emergency Economic Powers Act, the Court relied on workaday tools of statutory construction and (for a plurality) the ideologically conservative major questions doctrine to achieve an ideologically conservative outcome. Trump’s love of tariffs runs contrary to the traditional conservative preference for free trade and opposition to taxes of any sort. The case thus fits Shanmugam’s paradigm quite well.

However, it would be a mistake to read the term just concluded as proving that the Supreme Court’s conservative super-majority are traditional conservatives rather than MAGA conservatives (and, to be clear, I do not attribute that mistaken view to Shanmugam or anyone else; I consider it because it might seem a logical inference from the pattern of decisions). In the major cases in which the Trump administration lost, the outcome would have been different were it not for the votes of the liberal justices. Moreover, in validating longstanding conservative positions, the Court handed the Trump administration in particular enormous power.

No traditional conservative majority

Supreme Court pundits will disagree about what counts as a major ideologically freighted case, but by my count, the Trump administration lost five such cases in the past term: on tariffs, mail-in ballots, mobile phone location searches, birthright citizenship, and Federal Reserve independence. In each case the outcome would have flipped if not for the votes of liberal justices.

The Court’s rejection of the administration’s narrow reading of the citizenship clause of the Fourteenth Amendment illustrates the fact that the Supreme Court is not dominated by a traditional conservative, anti-MAGA majority. Consider the fact that four of the six Republican appointees thought the Trump executive order limiting birthright citizenship constitutionally valid in at least some of its applications. That hardly paints a picture of traditional conservatives standing against Trumpism.

On the contrary, the divisions on display in Trump v. Barbara might signal that limiting who counts as an American and hostility to undocumented immigration are becoming standard conservative positions. That interpretation is bolstered by the administration’s two big wins for its restrictive immigration policies. The Court allowed the president broad power to end Temporary Protected Status (TPS) and read a federal statute to permit the administration to block asylum by physically blocking asylum seekers. Both decisions were by an ideologically divided 6-3 margin.

The Federal Reserve case is also illustrative. Traditional business-friendly conservatives surely value an independent central bank as essential to address the risk of disastrous monetary policy. Politicians too often will favor low interest rates to stimulate the economy in the short term to create what economists call a sugar high. But the long-term impact of a too-accommodative monetary policy is sustained high inflation or even catastrophic hyper-inflation. In pressuring the Fed to lower interest rates in the face of persistent above-target inflation, Trump demonstrates the precise reason for Fed independence.

And yet Trump v. Cook was decided by a mere 5-4 margin, with only two of the Court’s six conservatives voting to reject Trump’s pretextual effort to fire a member of the Federal Reserve Board of Governors.

Missing the trees for the forest

The cases that are best explained as fulfilling longstanding conservative goals squarely undermine any notion that the Court is resisting Trump’s agenda. In those cases, the Court is most charitably described as hyperopic. Whereas people experiencing myopia see only what is immediately before them rather than the big picture, hyperopia is the opposite: one sees objects in the distance but not those up close.

The Supreme Court’s most hyperopic decision in recent years came in Trump v. United States in 2024. The conservative justices gave sitting and former presidents sweeping immunity against criminal prosecution for acts within the “outer perimeter” of their official responsibilities for fear that the possibility of criminal liability might prevent them from taking necessary bold actions. The Court worried about a hypothetical future risk even as it ignored the not-at-all-hypothetical reality of a once-and-future president who, thanks to the Court’s conferral of immunity, was able to completely avoid accountability for fomenting an attempted coup.

The most hyperopic decision of the 2025-26 term was Trump v. Slaughter, in which the Court overruled the 1935 precedent of Humphrey’s Executor v. United States and invalidated good-cause removal protection for members of the Federal Trade Commission. True, conservative scholars and justices had been championing the unitary executive theory on which the Slaughter decision relied since well before Donald Trump became a politician. And earlier Roberts Court rulings had narrowed Humphrey’s. Thus, one could have imagined the Court handing down Slaughter during any administration (although it is easier to imagine the case coming down during a Republican administration than during a Democratic one). Nonetheless, by seizing the opportunity to achieve the long-term goal of eliminating independent agencies at this particular moment, the Court ignored the very real dangers the second Trump administration poses.

During his current presidential term, Donald Trump has appointed lackeys and cranks to key government positions. For example, Bill Pulte has used his perch at the head of the Federal Housing Finance Agency to dig up dirt on the president’s political enemies while ignoring evidence of the exact same conduct by administration officials. For his fealty, Trump made Pulte Acting Director of National Intelligence, a job for which he has no apparent qualifications. Trump appointed Robert F. Kennedy, Jr. to head the Department of Health and Human Services, where he has replaced medical experts with quacks. And Trump’s former personal lawyer Todd Blanche has used his position as Acting Attorney General to weaponize the Department of Justice, all the while cynically claiming to be acting in response to (imagined) weaponization by the prior administration.

Given how Trump’s appointees have weakened the ability of executive agencies to perform their statutory functions while abusing the powers they have, this would appear to be the worst possible time to give the president control over federal agencies that Congress designed to act independently of direct presidential supervision. And yet that is exactly what the Court did in Slaughter.

Indeed, the dangers the current administration poses to democracy are so apparent that hyperopia may be too charitable a description of the Court’s approach. Willful blindness might be a better descriptor. If so, then Mullin v. Doe, the TPS case, would be most emblematic of the past term.

After concluding that the TPS statute precludes judicial review of non-constitutional claims, the Court went on to reject the respondents’ argument that the decision to end TPS for Haitians was racially motivated. In dissent, Justice Elena Kagan pointed to Trump’s description of Haiti as a “shithole” country as well as his calumnies that Haitians in Ohio were eating people’s pets, “probably have AIDS,” and are “poisoning the blood” of our country. The majority failed to mention any of those or any other statements, writing that “[n]one of the cited statements by either the President or [former Homeland Security Secretary Kristi Noem] was overtly racial, and in substance all expressed policy views that could rest on race-neutral justifications.” Justice Samuel Alito, who delivered the lead opinion, did not say what policy view Trump was expressing by accusing Haitians of eating the cats and dogs of Springfield, Ohio.

* * *

In iconic statuary, Lady Justice is blindfolded to symbolize the ideal of impartiality: all persons are equal before the law, which should be administered without favor to rich or poor, friend or foe. The Roberts Court has evidently drawn a different lesson from the image of blind justice. Its decisions are blind to the consequences of handing ever more power to an authoritarian president with precious little regard for democracy, the Constitution, or even basic decency.

-- Michael C. Dorf

We are All Constitutional Pluralists Now: Just ask Justice Brett Kavanaugh

2026-07-08T07:00:00.000-04:00

Twenty-eight years ago, I wrote an article summarizing a pair of essays written in 1900 by Arthur Machen, Jr., in the Harvard Law Review. Machen was the first person to use the phrase the "living Constitution" in a legal essay. He framed the issue as follows (please forgive the long quote):

As the period of the formation of the American Union becomes more and more remote, it becomes constantly more important to inquire to what extent the decision of a question of federal constitutional law may properly be affected by the many changes in language, customs, morals, and in individual and national environment which have taken place since the adoption of our fundamental law. . . . Political opinions have changed: the doctrine of national unity has almost completely demolished its once mighty antagonist--the theory of state sovereignty. Commerce, instead of being conducted by stagecoaches and sail-boats, is carried on by railways, telegraphs, and ocean liners. Ideas of morality have changed: lotteries and duelling, once regarded as praiseworthy, are now thought pernicious and immoral. The effect of all these changes upon our system of constitutional law is surely an interesting and important matter for legal inquiry. . . . The present paper deals with the problems which arise when a constitution, the letter of which remains unchanged, is to be applied by the courts to an altered state of facts.

Machen argued that, while the Constitution's original meaning does not change, judges can decide the same case differently over different eras if facts and circumstances materially change. I summarized his work as follows in my conclusion:

An ever-changing society governed by a vague foundational document will require judicial decisions that apply new circumstances to old rules. History and custom will be important to that application, but not decisive. Judges do not have to choose between a Living Constitution and the dead hand, but they must inevitably make difficult judgments about competing institutional roles and fundamental rights and liberties. Those are the truly hard questions of constitutional law, and it is time that we face them without the baggage of an old and unhelpful debate about the relationship between original meaning and constitutional interpretation.

In the birthright citizenship case decided this term, Justice Brett Kavanaugh, a self-avowed originalist, detailed his method of constitutional interpretation. It might sound familiar:

The Constitution is an enduring document, and its principles were designed to, and do, apply to modern conditions and developments. The original constitutional principles do not change absent a constitutional amendment, but the relevant principles— both the rules and exceptions alike—must be faithfully applied not only to circumstances as they existed in 1787, 1791, and 1868, for example, but also to modern situations that were unknown or unanticipated by the Constitution’s Framers. Stated otherwise, the meaning of rules is constant...[but] their application to new situations presents a novelty.

Kavanaugh cited two of the most famous originalist judges in American history, Robert Bork and Antonin Scalia, to support this method of constitutional interpretation. Bork said, "it is the task of the judge in this generation to discern how the framers’ values, defined in the context of the world they knew, apply to the world we know. We must never hesitate to apply old values to new circumstances." And here is Justice Scalia: "the application of existing principles to new phenomena—either new because they have not existed before or new because they have never been presented to a court before—is what I would call not ‘evolution’ but merely routine elaboration of the law.”

Kavanaugh used this framework to argue that even if the Supreme Court was correct in the late 19th century in United States v. Wong Kim Ark to find only a few limited exceptions to the Fourteenth Amendment's rule that people born on United States soil are American citizens, further exceptions may be recognized by judges if "the new exceptions (i) are based on subsequent developments or circumstances that are new, i.e., largely unknown or unanticipated by the Framers of the Fourteenth Amendment, and (ii) are relevantly similar to the...Wong Kim Ark exceptions."

Kavanaugh then argued that changes in immigration laws and practices allow Congress to amend current law to carve out from the Fourteenth Amendment's citizenship promise new exceptions for children of undocumented immigrants and temporary foreign visitors. Congress, however, has not passed such a law, and Kavanaugh believed Trump's challenged executive order was inconsistent with a current federal statute on the subject, so he concurred in the judgment overturning the executive order. But under his analysis, Congress could itself create the exceptions that Trump desires.

I have no issue with how Justice Kavanaugh explained constitutional interpretation, and neither would liberal non-originalist judges. The Constitution lays down both specific directives (such as the president must be thirty-five and there must be two senators from every state), and imprecise general principles (such as equal protection, due process, and the bans on unreasonable searches and cruel and unusual punishments). We do not need originalism for the self-defining parts of the Constitution. We just need to be able to read. But those parts of the Constitution do not get litigated. Phrases like "subject to the jurisdiction thereof," which was the key language at issue in the birthright citizenship case, are not self-defining and need to be fleshed out over time as society changes. (Notably, both the majority and the principal dissent in the birthright citizenship case claim that the other side improperly reads a new meaning into the term "jurisdiction." The majority says the dissent relies on a revisionist view from the late 19th century that arose to justify nativist laws restricting Chinese immigration; the dissent says the majority's view reflects a 20th century repurposing of the citizenship clause. Neither of those could have happened if the term were self-defining.).

Our collective response to Justice Kavanaugh's argument that judicial application of the phrase "subject to the jurisdiction thereof" can change over time should be "of course." Machen made similar arguments 126 years ago. But once we accept Kavanaugh's framework and apply it consistently across cases that implicate imprecise constitutional text (virtually all litigated cases), then we can see that the idea that the Constitution has a fixed meaning at ratification that judges must apply, a sentiment repeated all the time by originalists, does no actual work in real constitutional cases. We all agree that freedom of speech is a constitutional right and a good thing to boot, but we disagree over its application to specific problems.

No constitutional right is absolute, which is why the phrase "Congress shall make no law abridging the freedom of speech," does not prevent Congress from making perjury, bribery, and true threats federal crimes even when those activities are pure speech.

Let's assume that the original meaning of either the Second Amendment or other parts of the Constitution such as the Ninth Amendment support a constitutional rule that we have the right to own guns. Next term the Supreme Court will decide whether states can ban assault weapons. That ruling will also apply to Congress should it enact a similar ban. Let's assume that as an original matter the Constitution protects the right to own guns subject to the exceptions to that rule that existed in 1791, which were many.

Judges today have to determine whether there are other exceptions given changed circumstances, such as the more deadly nature of weapons today than those in existence in 1791 and the much greater density of urban areas such as Times Square than similar locations in 1791. This framework requires judges to make decisions based on modern facts and values. The only way to determine if the underlying principles supporting original meaning apply to today's problems is to engage in a normative, not historical enterprise. We can call that originalism but virtually all constitutional actors agree with that approach, which is exactly what Justice Kagan meant when she said at her confirmation hearing that "we are all originalists." We apply precise text as written but general principles must be extrapolated over time with an eye on contemporary needs and problems.

Unfortunately, the Republican Party, the Federalist Society, and most "originalist" judges, legal scholars, and pundits use the label "originalist" to argue that they just "find" the law whereas living constitutionalist judges "make" the law. Originalists also routinely argue that only reliance on text and history can constrain judges. But those kinds of appeals are nonsense. As Kavanaugh, Bork, and Scalia recognized, constitutional litigation is the application of general principles to new circumstances. We must apply the First Amendment to the internet, the Second Amendment to assault weapons, and the Fourth Amendment to high tech police searches totally unknown to the founding generation. That analysis inevitably requires the judicial balancing of conflicting constitutional values, not the study of text and history, even if that balancing goes unstated.

There were important 6-3 cases this term divided along ideological and partisan lines but not because the justices employed different methods of constitutional interpretation. They are all constitutional pluralists who engage with text, history, precedent, and consequences. The liberal and conservative justices disagree over most important litigated constitutional cases because they have different values, not because some are originalist and some are not.

The legal community needs to move on from the tired, misleading, and functionally irrelevant debates over living constitutionalism and originalism. Justice Kavanaugh's descriptive account of how judges decide constitutional cases is spot on. They apply old principles to new facts based on modern imperatives. Judges disagree about the imperatives, which is where the debate needs to take place. As I wrote over a quarter of a century ago:

The academic debate over the legitimacy of originalist and non-originalist constitutional interpretation has not progressed materially since Professor Machen's article. Furthermore, a review of his work teaches us that originalism does not lead inevitably to active or passive judicial review; that questions about originalism as an interpretive tool are largely irrelevant to how judges decide real cases; and that there is little reason for scholars to continue to argue about the proper role of original meaning in constitutional interpretation. That role should be as clear to us as it was to Professor Machen--judges refer to the original meaning of the Constitution to provide an important link to our past culture and traditions, but the original meaning rarely dictates results in real cases because the context within which that meaning is applied is constantly changing.

If you do not believe me, listen to Justice Kavanaugh.

Liars Lie: The Mess in the Maine Senate Race Was Easily Foreseeable and Avoidable

2026-07-07T14:05:36.390-04:00

Maya Angelou's famous warning is in serious danger of becoming stale: "When someone shows you who they are, believe them the first time." I risk adding to its overuse here because it so perfectly fits the big political story coming out of the State of Maine, where a man won the Democratic Party's nomination for US Senate in last month's statewide primary. His name is Graham Platner, and we should have believed him the first time.

Platner's cakewalk in the primary (taking 71.9 percent of the vote) set him up to face the incumbent Republican Susan Collins, who is infamously "concerned" at all times about her party's extremism -- but never quite so concerned that she does anything about it. Collins is an embarrassment, and the Democrats' extremely slim hopes of retaking control of the US Senate cannot possibly go anywhere without taking that seat. Maine is a blue state, and it should not be difficult for Democrats there to win a seat against a 30-year Washington insider whose track record is a joke.

As I write this column, here is the state of play in that race, according to The New York Times: "Abandoned by Allies, Platner Faces Pressure to End Senate Campaign." He is, in a word, toast. The forcing event is the revelation that one of Platner's ex-girlfriends has now credibly accused him of rape. (He denies it.) This followed a flurry of revelations that came out shortly before the primary regarding other women accusing him of sexual abuse, but those revelations were batted away by Platner's supporters as mere "oppo research," and Platner apparently told his most important backers that there would be no more shoes to drop. Count this as an LLBean 8" Duck Boot.

I would not be writing about this situation, however, if it were simply a politically unfortunate situation in which a guy turned out to be a creep and a liar -- oh, and an accused rapist, too. I say "simply" because at this stage the story is pretty clear-cut: guy lies, people believe him, his lies blow up at an unfortunate time, everyone feels betrayed and tries to figure out what to do next. It is not a yawn, but it kinda is. In any case, there is nothing new or interesting to say about these latest damning details.

What is interesting is not, however, new. One of my favorite YouTubers is a mostly science-based commentator named Rebecca Watson, who goes by the name Skepchick. She has moved into some overt political commentary over the years, mostly talking about how powerful men (especially in academia) get away with horrible treatment of women, especially younger women. Her interests have trended more toward the political of late.

Watson was on the Platner case last Fall, when he was dealing with a controversy about a tattoo on his chest that was a Nazi "totenkopf," an image that "resembled a specific symbol of Hitler's paramilitary Schutzstaffel, or SS, which was responsible for the systematic murders of millions of Jews and others in Europe during World War II." Platner had the tattoo for eighteen years before he very recently had it covered up with another tattoo.

Platner obviously survived that controversy, but the way he did so was disturbing and instructive. Watson posted a video on November 13 of last year -- that is, almost eight months ago. The title of the video: "Graham Platner is an Embarrassing Liar." She was right.

To this point, I have left out perhaps the most politically relevant part of the story. Platner is a political neophyte, a US military veteran who espouses views about Medicare for All, LGBTQ+ rights, and other issues that are solidly on the left side of the American political spectrum, not merely compared to Republicans but compared to the Democratic establishment embodied by the infuriating likes of Chuck Schumer and Hakeem Jeffries. Given my own progressive views and my extensively documented contempt for my party's so-called centrists, people with Platner's views ought to appeal to me. The same is true for Watson, who identifies as a progressive.

Her video is 28-and-a-half minutes long, but she moves things along quickly, making the piece an easy watch. She ends the piece with this:

Do I think Platner is a Nazi? an antisemite? Honestly, I don't know. I don't think so. I do know that he is a walking PR disaster and platforming him removes prominent leftists' ability to rightfully call out antisemitic dog whistles and outright fascist bullhorns on the right, at a time when those things are only getting worse, and making life much more dangerous not just for Jews but, just like during the Holocaust, for all marginalized people. Which is probably why it's only been marginalized leftists I've seen speaking out against Platner.

That last point refers back to an earlier part of the video in which Watson calls out the relatively high profile progressives and leftists who jumped to Platner's defense, the mostly White commentators who believed and amplifed his claims that he was merely a military grunt who got drunk with his buddies and got what looked like a bad-ass tattoo. That defense of Platner was enough to pull in the progressives who are now jumping ship, including people I truly admire like Elizabeth Warren.

The idea among the terminally online left, it seems, was that Democrats need to stop having litmus tests and must start to accept Regular Guy™candidates who are real, flawed, and "exactly who we need to stop being seen as elitists." Platner's man of the people cred included a bunch of hateful social media posts over many years, which he later said was part of a dark time in his life. Having watched his videos, I found that explanation at least plausible, but not the bigger story.

Again, Watson is onto something important in pointing out that the lefty media types who wanted to welcome Platner were very much not joined by left media types who focus on marginalized people. The idea, it seems, is that "we" should not be too quick to judge people who have led tough lives. So far, so good. But where do they go with that? Watson nicely exposes the hypocrisy of the "Let's not be elitist" types by showing this social media post from a high-profile progressive woman:

How many people get tattoos that they thought looked cool, but didn't understand the meaning of?
How may vets took mercenary work for a period because the US doesn't support them?
How many young men have shitposted online?
Do we want an authentic working-class party or not?

Golly, I sure would hate to be against "an authentic working-class party"! No seriously, I am completely in favor of the Democrats becoming such a party. The problem is that the word "authentic" is doing something very bad here, and Watson's droll response captures it: "Hey, I thought we all agreed it was wrong to imply that the working class is stupid and racist. Whatever." She then runs through some bald-faced lying by Platner on other medium-sized issues, but she nails the case when she shows a clip from a famous-ish lefty podcaster saying this:

My own personal opinion is that he probably figured out what [the tattoo] was several years ago but was also like ... whuh ... you know ... it's not like ... "I can justify this to me!" you know, speaking to himself. "And anyone who knows me knows I'm not a Nazi, uh, so am I really gonna go and pay for this thing to get all screwed up?" Uh, that's my guess.

To be clear, Platner's story was that he went for eighteen years without ever knowing that he had a Nazi tattoo on his chest. This is beyond impossible to believe, for the reasons that Watson includes in her video and also in light of headlines like this from CNN: "Graham Platner can’t explain why ex-girlfriend knew tattoo’s Nazi link before he says he did." That article notes that there are now "on-record claims from [the ex] that he was aware of the tattoo’s meaning years ago." And Platner's evasions would put a gymnast to shame. (That CNN piece is much more recent than the Watson video, but the drip-drip-drip against Platner's "I had no idea" explanation has been out there all along.)

Again, however, Watson had exactly the right response to the lefty podcaster's explanation of Platner's possible thought process:

So you agree? You agree that Graham Platner is probably lying about not knowing he had a Nazi tattoo. [The podcaster] comes to the same conclusion I did, but he doesn't go the extra mile -- the extra twelve inches -- to wonder what it means to support a politician who lies that easily about a Nazi tattoo. He knew he had a Nazi tattoo. He knew he would face no consequences for it. And then he lied about it when he was finally facing consequences. That's your guy?

Anyone who has read my body of work over the years knows that I rarely spend time calling out the left, because there is so much going on that is so much worse from the right. But there are times when the political operatives on the left stop acting truly lefty and start being condescending to the "genuine" people they think they are helping. "We" had to stick with Platner because we need to stop being such purists? Watson: "[Platner's lefty defenders] were saying: 'It's fine. Stop being so weird about Nazi tattoos.'"

Honestly, anyone who thinks that there can be no genuine working-class party unless we just get over ourselves and stop rejecting people who lie about Nazi stuff has no respect for genuine working-class people. Again, Watson tried to warn everyone in mid-November, but the train had left the station, and everyone else held on in the hope that Platner would stop needing to be defended. The political mess that he leaves behind could have been avoided.

He showed us who he is. More people should have believed him.

- Neil H. Buchanan

Breaking Down Chatrie v. US, the Supreme Court’s Landmark Fourth Amendment Decision

2026-07-06T07:00:00.000-04:00

Last week, the Supreme Court issued its first major Fourth Amendment case in six years: Chatrie v. United States. Chatrie is a massive victory for digital privacy. It holds that geofence searches, which use cellphone data to track all cellphone users in a certain area at a certain time, are Fourth Amendment searches requiring probable cause and a warrant. It sharply limits the “third-party doctrine,” which held that data disclosed to a third party service provider lost all Fourth Amendment protection and could be obtained by the government without a warrant or cause. More than that, Chatrie definitively establishes that Fourth Amendment law in the digital era will be appropriate to that era, and not anchored to traditional property concepts or distant analogies to non-digital contexts. The future of Fourth Amendment law has never been brighter.

The Chatrie case involved the investigation of a bank robbery. On May 20, 2019, a man wearing a fisherman’s hat and a traffic vest robbed a bank in Midlothian, Virginia. Witnesses and surveillance cameras observed him using a cellphone. Police officers served Google with a geofence warrant, and obtained information on several cellphones in the area at the time of the robbery. These included Okello Chatrie’s phone, and he was eventually identified as the culprit. Chatrie challenged the validity of the geofence warrant, arguing that it was unconstitutionally overbroad. A Fourth Circuit panel held that geofence searches were not covered by the Fourth Amendment and did not require a warrant in the first place. The en banc Fourth Circuit split 7-7 on the issue.

The Supreme Court’s decision in Chatrie’s favor was 6-3. Justice Kagan wrote the majority, joined by Chief Justice Roberts and Justices Sotomayor, Kavanaugh, and Jackson, with Justice Gorsuch concurring in the result. There were two big questions in Chatrie. First, is geofence surveillance a Fourth Amendment “search” even though it only collects a few hours’ worth of a suspect’s location data, as opposed to the seven days found to be a search in 2018’s Carpenter v. United States? Second, is geofence surveillance a Fourth Amendment “search” even though Chatrie clicked “yes” on a permission screen when setting up his cellphone, allowing Google to collect his location data with his apparent consent? The Supreme Court answered yes to both of these questions, and in doing so substantially expanded the scope of the Fourth Amendment in the digital world.

The Court acknowledged that Chatrie was only tracked for a few hours. But it ruled that this did not preclude Fourth Amendment protection, for several reasons. Importantly, the surveillance in this case was retrospective, meaning that the government could obtain data about anyone at any previous time it chooses. Although the actual surveillance only covered a few hours, the time period of potential surveillance was “boundless.” In Justice Kagan’s elegant phrasing:

The sweep of the official invasion is not made less because the government, with the benefit of hindsight, can pinpoint exactly which few hours of movements it wants to review. That feature of accessing location data is, indeed, more a practical benefit to the government than a limit on its intrusive powers.

Moreover, in the geofence context, even short-term monitoring can reveal sensitive information, because the government can precisely track those who travel to “the psychiatrist, the plastic surgeon, the abortion clinic, the AIDS treatment center, the strip club, the criminal defense attorney, [or] the by-the-hour motel.” The Court also emphasized that geofence searches could reveal when people and their cellphones were inside private residences; the Court has previously held that tracking devices that go inside the home violate the Fourth Amendment.

The Court went even further, critiquing the very idea of making Fourth Amendment law turn on exactly how long a given surveillance practice extends. It likewise pointed, in a footnote, to the line drawing issues that might arise from such an approach. The Court may have been a bit overzealous in this part of the opinion. As I argue here, it makes sense to ignore how long the government tracks someone’s location when the surveillance is retrospective, because retrospective surveillance subjects people’s entire lives to monitoring. But the idea that the Court should never take duration into account is misguided and likely to harm privacy in future cases where a few moments of observation is clearly lawful (a police officer taking a photo of a house from a public sidewalk) but a longer period of observation may not be (police setting up a sophisticated hidden camera on a utility pole to monitor a house and yard for months or years at a time). Hopefully the Court can reexamine its short but unfortunate detour in a future case, when the importance of duration becomes clearer.

Likely the most important aspect of Chatrie is the sharp limits it places on the third-party doctrine, and its rejection of the government’s claim that Chatrie waived his Fourth Amendment rights by voluntarily disclosing his location data to Google. In Carpenter, the Court declined to apply the third-party doctrine because cell phone data were automatically and unavoidably shared with cell phone providers whenever a cell phone was turned on. The Chatrie Court extended Carpenter to situations where users affirmatively chose to use a cellphone app, even if they gave permission for the app to collect their data. The Court did so for a common-sense reason: cellphone users are obviously going to use popular apps like Google Maps and are generally going to give those apps their data because that’s how apps work. Using apps is basically the reason why people have smartphones. The Court rejected an “app-by-app, feature-by-feature method of granting Fourth Amendment protection.” Rather, it concluded that smartphone users retain Fourth Amendment rights in their data when they use apps on their smartphones. In a world where “[p]retty much everything a person does on a smartphone requires some kind of opt-in,” it would be inappropriate to withhold constitutional protections for sensitive data just because a user discloses their information to a service provider. So long as cellphone use, or the use of any technology, is a part of life in the digital era, the Court will no longer penalize its users by stripping away their Fourth Amendment rights.

This portion of the opinion is momentous, a sea change in how the Court assesses voluntary disclosure. Going forward, if a person is engaged in a common activity that they could in theory avoid and which results in the disclosure of their information to a third party, they will nonetheless not be deemed to have voluntarily exposed their information. Not only would this cover a wide variety of activity on a cellphone, but also a vast swath of internet activity, and likely also non-digital activity like failing to put up a privacy fence around one’s home or walking on public sidewalks pervasively monitored by facial recognition cameras. The third-party doctrine is, if not entirely dead, on life support. It is increasingly confined to a handful of old cases decided prior to the digital era and preserved largely via stare decisis. The Court, in other words, is discarding old doctrines no longer suitable to the modern world and preserving meaningful Fourth Amendment protections in the digital era.

The Court also correctly noted that Google’s permission screen did not inform users about virtually any aspect of its data collection and use. And the Court made clear that it did not care if only a relatively small portion of users disclosed their data to a given app; those users that did would still retain a Fourth Amendment right in the data.

Finally, the Court remanded the case to the Fourth Circuit to rule on whether the warrant obtained in the case was supported by probable cause and sufficiently particularized. (Justice Jackson wrote a concurrence arguing that it was not particularized enough.) The Fourth Circuit panel had not reached that issue, finding instead that there was no search and therefore no constitutional limits on geofence searches in the first place. It is worth noting that the panel’s endorsement of a maximalist power to surveil people via Google data backfired, and not only because its holding was ultimately reversed by the Supreme Court. Following oral arguments before the Fourth Circuit panel, Google almost immediately changed how it stores geofence data, essentially ending Google geofence searches and depriving police of a valuable investigative tool they could have used by obtaining a warrant. The government’s attempt to secure an unfettered, easily abused power to surveil cellphone users ended up making it more difficult to carry out valid law enforcement functions.

The concurrences and dissents were, in their own way, almost as interesting as the majority opinion. Justice Gorsuch wrote separately to argue that the Court should discard the longstanding “reasonable expectation of privacy” test and instead resolve the case on the basis that Chatrie had a property right in his Google Location history. Gorsuch contended that Chatrie owned the data, compiled by Google and stored on Google’s servers, because he could access, export, or delete it. He also pointed to positive law as a source of property rights in Location History, noting that Virginia’s Computer Crimes Act refers to computer data as a form of property under the statute. It is possible that Chatrie’s Location History data was literally his property, but there is no authority on point to indicate that it is. As the majority pointed out, the Court has been applying the “reasonable expectation of privacy” test for roughly sixty years. That body of law is far more developed than the law of property rights in obscure forms of digital data that most users are unaware exists and which is generally not the subject of trespass litigation.

Justice Alito’s dissent had two very different parts. He lodged a reasonable disagreement, noting that the surveillance at issue in Chatrie was far less extensive and revealing than the long-term surveillance at issue in Carpenter. He advocated for the traditional third-party doctrine and argued that cellphone users should have no Fourth Amendment rights in their Location History data because they voluntarily disclose it, in the sense that they can easily live without Location History. This granular approach to voluntariness (“can a user go without this particular app or service?”) is less realistic and appropriate than the majority’s holistic approach (“can a person realistically use their cellphone without using apps or disclosing data?”). In the digital world, making everything turn on voluntariness is a bad approach in any event. But Alito’s argument here is colorable.

Justice Alito’s discussion of whether the Court should have taken the case in the first place was, by contrast, a bit wild. He argued that the Court should not have granted cert on the Fourth Amendment search issue because the Fourth Circuit also resolved the case on good faith exception grounds, meaning that the police relied in good faith on a search warrant. Because Chatrie will inevitably lose on the same grounds on remand, Alito wrote, the Court’s opinion is “advisory,” albeit not in the jurisdictional sense because Alito concedes that it is a “case or controversy” that the Court can properly hear. It is difficult to make sense of Alito’s argument. As the majority noted, the seminal good faith exception case said that courts should feel free to resolve merits questions before good faith exception questions, in order to guide future action by police officers. Alito also seemed to argue that the Supreme Court should never review Fourth Amendment cases involving novel issues, i.e., cases where the good faith exception applies, and should permanently bar defendants from obtaining relief in such cases. He would not have granted this case because “it would be nearly impossible for Chatrie to prove that the police here ... acted in bad faith.” It’s impossible because “this Court has never provided guidance” on the relevant issues. But there’s a Catch-22 here. Alito’s argument is that the Court should acknowledge that defendants can never win on novel Fourth Amendment issues and that the Court should never grant cert to resolve novel Fourth Amendment issues. To adopt this approach would be to abdicate the Court’s responsibility to say what the law is.

In a complex and novel case involving digital technology, the majority of the Court got Chatrie right, finding that geofence surveillance is a Fourth Amendment search requiring a warrant and probable cause. Resolving such a case correctly is no mean feat. Perhaps the Justices are both tech-savvy and wise. Perhaps they just checked their phones and found they had Location History switched on, as the vast majority of Google Maps or Google Assistant users in the US likely do. In any event, they preserved meaningful Fourth Amendment rights in the digital age and charted the course of Fourth Amendment law for years or decades to come.

-- Matthew Tokson

Why Does a 250-year-old Country Have So Many People Who Think Like 10-year-olds?

2026-07-03T16:40:46.261-04:00

With the most recent Supreme Court term now behind us, we here at Dorf on Law will soon be moving on from the case-specific analyses penned by our constitutional law scholars -- including, just this past week, the rulings on independent federal agencies (plus a guest scholar's analysis of the same case), anti-transgender laws, and birthright citizenship -- to writing summary analyses of the term, a term that was defined by the six Republican-appointed justices' increasingly blatant (and depressingly predictable) choice to be part of the Trumpian assault on democracy and the rule of law.

I will write one such summary soon, but because today is the last weekday before the Fourth of July holiday, I am offering here some thoughts about the distressing spectacle that is my country at age 250. In 2005, a bit more than a year before Dorf on Law was founded, I published a short guest piece about the Declaration of Independence on someone else's blog. (That blog later lost all credibility by ceaselessly abetting Republicans' attempts to hype a tax "scandal" that turned out to be a huge nothingburger, but who remembers such things?) My guest piece has been reprinted a few times, and I have copied it in full here (all 423 words of it):

I thought I would take another look at our oft-mentioned and seldom-read Declaration of Independence to see what it has to say about taxes and other issues of import. Herewith, a quick (and admittedly incomplete) summary of the contents:

Obviously, the most important issue addressed in the Declaration was the ongoing violence in the colonies. Among its more memorable descriptions of conditions at the time, the Declaration reminded the world that King George III "has plundered our seas, ravaged our coasts, burnt our towns, and destroyed the lives of our people." The founding fathers were understandably focused primarily on matters of life and death.

Beyond those immediate concerns, though, the bulk of the Declaration expresses, in essence, a thirst for politics. That is, the major non-war-related complaint is that there is no locally-elected legislature passing laws for the colonies. Our founders were willing to lay their lives on the line, in other words, to create legislatures.

For those of us who are law professors and lawyers, it is interesting that the Declaration also seems to express (or at least imply) a desire for lawsuits and defense lawyers. The king "has obstructed the Administration of Justice, by refusing his assent to laws for establishing Judiciary powers" and "depriv[ed] us, in many cases, of the benefits of Trial by Jury." (Current readers are likely to split into two camps in their reactions to those statements, with some saying "If they only knew what they were getting us into," and others saying, "Yes, lawyers are an essential ingredient of a stable nation.")

The Declaration also notes that the king had prevented colonists from trading with foreign nations, which was an especially sore point for our resource-rich and young nation. (There is also, I should say, a rarely-quoted – and inflammatory – comment about the American Indians, reminding us that even the Founding Fathers made controversial statements.)

Finally, though, what about taxes? Exactly one statement appears on the subject: The king had assented to Parliament’s laws that "impos[e] Taxes on us without our Consent." That’s it. For some reason, I always thought that taxes played a bigger part in the Declaration. All it says, though, is that taxes are unacceptable if we do not impose them on ourselves.

The Declaration of Independence, in addition to calling for peace in our country, called for four basic things: the right to pass our own laws, to operate our own courts of law, to trade with other nations, and to create our own tax system. Simple, elegant, complete. No wonder we still read it.

In 2022, I wrote a much longer version of that analysis in a column on Verdict: "The Declaration of Independence Was a Call for More Government and More Taxes—And That’s Still an Important Lesson for Us Today." I seriously considered updating that analysis once again for this year's 250th, especially because my column on the Fourth last year was so dispiriting: "Happy Birthday, America: 249 Years Was a Pretty Darned Good Run." (Side note: That column in part assessed the idea that the Roberts Court in 2025 was "keeping its powder dry" to stand up to Trump at some future time when it would be truly needed, a notion that was implausible then and is utterly laughable now.)

But because the Declaration of Independence in fact was a bill of particulars against a monarch who harmed Americans with his arrogance and rapacity, updating that analysis to 2026 would simply be too easy. Instead, I thought I might share a quick thought about why the people who are currently destroying America (or at least enabling its destruction) are so touchy about the very idea that America might not be perfect in every way. This is, of course, a question with many answers, so in no way am I saying that what I am offering here should replace all other explanations.

The news has been filled of late with stories about how the Trump people have intensified their efforts to sanitize US history, especially as the 250th celebration came into sharper focus. The question is why, after the Republicans decided to use the word "woke" as a political weapon (but then steadfastly refused to define that word), they applied their new all-purpose insult to acknowledgements of anything negative in the country's past.

I mean that as a deadly serious question. Why is being "pro-American" in those people's eyes all about denying that the country ever did anything wrong, when it could instead be about celebrating a country that continued its march toward greatness by seeing and trying to overcome its wrongs?

The short answer for the hardest-core Trumpists, of course, is that they are ultimately neo-Confederates who wish that our Civil War had come out differently. But that certainly cannot cover all of the people who freak out about teaching our children (or each other) about what we could certainly describe as the country's "challenges faced, challenges overcome." Framing the story in that latter sense is especially revealing, because one would think that a bunch of people who are all about being "tough" and "winners" would welcome any proof that their country has demonstrated those supposedly "manly" virtues.

Some of the resistance to that framing might be connected to the toxic masculinity epidemic that has infected so much of the American right. I have discussed such things on occasion (recently here, for example), and I do believe that there are people who have fully taken on the bro-infused idea that tough guys show their toughness by being brutal and pitiless, which means that they would not view any of America's history of war crimes (past or ongoing) or brutalization of others as anything but cause for celebration.

But come to think of it, if they were truly confident about their righteousness, they would keep all of that information about genocides and racist and sexist violence in all of our museums and national parks, then simply add two words at the end of each description: "Cool, right?!"

Again, however, I strongly doubt that people like Pete Hegseth are representative of anything but a small slice of Republicans -- politicians as well as voters -- when it comes to his warped views on manliness and war crimes. The people who are sticking with Trump are making the horrible decision to support all of the racism and human rights violations that their cult leader promotes, but I suspect that the "Don't bad-mouth America!" thing need not be driven by bigotry or the glorification of brutality. (How many people truly liked the idea of bloodsports on the White House lawn? Sixteen percent!) Those explanations are sufficient, of course, but not necessary.

What, then, is my explanation? As the title of this column suggests, the problem is that such people are thinking like ten-year-olds. They have a happy place in their minds where the entirety of the story about George Washington is that he "cannot tell a lie" about a cherry tree and that he stood up in a small boat to pose for a painting. Thomas Jefferson is by definition a saint because he wrote that Declaration of Independence that everyone so loves but never reads. More recently, their view of the Rev. Dr. Martin Luther King, Jr.'s entire legacy is about people "being judged not by the color of their skin but by the content of their character" (which Dr. King clearly and famously labeled a dream, not an accomplished reality).

In short, there is the grade-school version of history, and anything that attempts to intrude on that uncomplicated story is met with what amounts to "la la la la ... I can't hear you! ... la la la la." I should be clear, however, that this point is very different from the cottage industry in which observers catalog "Trump as toddler," "Trump as adolescent," "Trump as bully," and so on. Those are revealing, but I am trying here to capture something more widespread than the immature narcissism of one person.

The ten-year-old's mindset is surprisingly easy to find in public discourse, even among people who seem to be functioning adults. Back in 2020, for example, the reckoning around the murder of George Floyd by a Minneapolis police officer sparked a broader effort to reconsider the Founders and to acknowledge their failings. Now-retired New York Times columnist Roger Cohen wrote what was in many senses a very good column, including the statement that "[w]e can celebrate our history without hiding from its stains."

Full stop, right? Unfortunately not, because before he wrote those sensible words, he went off the rails with this:

Some of the founders are now under attack for owning slaves. When George Washington and Thomas Jefferson fall from grace, you have to wonder. Union generals, including Ulysses Grant, who fought to defeat the Confederacy and slavery, were not good enough. They were imperfect, the human condition.
Moral absolutism has its giddy day. The guillotine falls. This is madness. Be careful what you say. It is the hour of the new judges; the judged are scared; and judgment of the judges may be decades or even centuries off.

As I wrote at the time, Cohen "apparently cannot wrap his head around the idea that it is important to debate the not-easy cases," and I added:

How exactly are those founders "under attack"? We are simply asking whether they deserve to be held up as heroes. That is not an attack but an unavoidable question, a question that only seems avoidable to those who approve of the current answer.

Per Cohen, however, people like me are simply being nitpicky, because they/we refuse to admit that the human condition is imperfect. But this is not moral absolutism. It is a question about whether the way that we have been honoring these particular imperfect humans should continue. We remember certain imperfect humans in one way, but we remember others in other ways (or not at all). And that can change.

So no, this is not madness, because we are all now asking how best to "celebrate our history without hiding from its stains."

Think about how panicky Cohen's response is to the very idea that Washington and Jefferson might "fall from grace." It is, he says, "madness." And madness does not call for a reasoned response, because labeling one's opponents madmen places them beyond reason. They are crazy. Just. Plain. Wrong. Again: la la la la ... I can't hear you! ... la la la la. And again, that was from a leftish-leaning columnist at a top newspaper.

This is the part of today's column in which I state emphatically that there are a lot of reasons to admire what the United States has done (and even continues to do, on an unfortunately diminished basis) and could do again, especially including when the country has faced up to its mistakes and tried to do better. There is an adult version of patriotism that is clear-eyed and open to criticism and doubt.

Unfortunately, for much longer than Trump has been on the scene, the American right has returned again and again to the playground retort: "Why do you hate America?" Twenty-two years ago, that misplaced patriotism even turned America's favorite ten-year-old into a treasonous villain.

Happy birthday, USA!

- Neil H. Buchanan

Principle and Policy in the Birthright Citizenship Case

2026-07-01T16:00:56.617-04:00

If you had asked me a year and a half ago what the prospects were for President Trump's executive order limiting birthright citizenship if and when the issue made it to the Supreme Court, I would have said the Court would reject the order either 9-0 or 8-1, with 7-2 being my upper limit on dissents. The two dissenters I would have predicted, obviously, would have been Justices Thomas and Alito.

Professor Buchanan, who is, depending on one's view, either more cynical or less naive than I am about the Supreme Court, thought that the Court would likely uphold the order--even though, as he made very very clear in his February 2025 blog post, he believed the argument for doing so extraordinarily weak. But he noted how, with support from motivated legal scholars, off-the-wall ideas can become on the wall (in Professor Jack Balkin's memorable phrasing).

I never quite got all the way to Professor Buchanan's view, but my prediction grew closer to his a year ago, after the Supreme Court's decision in Trump v. CASA. There, the Court placed limits on the ability of federal courts to issue universal (or "nationwide") injunctions in a case whose merits involved a challenge to the birthright citizenship order. But despite being called out by Justice Sotomayor in dissent for failing to address the merits at all, the majority . . . well . . . failed to address the merits at all. That suggested to me that one or more Justices in the CASA majority thought the lawfulness of the Trump order was at least a difficult question. My suspicions were confirmed by the oral argument in Trump v. Barbara, which made very clear that two Justices was the floor, not the ceiling, for votes to uphold the Trump order.

Thus, I was discouraged but not especially surprised by the lineup in yesterday's ruling in the case. Taking a glass-half-full perspective, I'll call the outcome 6-3, even though one of the six, Justice Kavanaugh, voted to invalidate the order on only statutory grounds. He made very clear that, in his view, Congress could, in the future, strip citizenship from children born in the U.S. to parents who lack citizenship and are not here permanently. But because Congress has for decades been unable or unwilling to enact major immigration legislation (a point to which I'll return below), even if the Kavanaugh position had prevailed and the Court as a whole accepted the plaintiffs' statutory argument but rejected their constitutional one, the risk of Congress enacting Trump's policy as a statute would have been low.

While I wasn't especially surprised by the outcome or the too-close margin, I was very pleasantly surprised by the tone of the majority opinion of Chief Justice Roberts. He could have written an opinion of the sort that the Court occasionally writes, that went something like this: Yeah, we know that birthright citizenship with only the narrow exceptions recognized in Wong Kim Ark is kinda dumb. It incentivizes birth tourism and illegal immigration. But we're stuck with it unless there's a constitutional amendment. He didn't write that kind of opinion.

On the contrary, Roberts treated birthright citizenship as not merely dating to English common law but as a noble inheritance from the English common law. He treated antebellum state laws denying citizenship to Blacks as ugly not only because they were intertwined with the odious institution of slavery but because they departed from the common law rule of jus soli. He characterized the period in which uncertainty about the status of birthright citizenship arose in the last decades of the nineteenth century as infected by the anti-Chinese racism of the period. He pointedly rejected the dissents' characterization of birthright citizenship as a feudal relic: "Where the dissents see feudalism, the Framers of the Fourteenth Amendment saw emancipation." And Roberts concluded with a stirring rhetoric reminiscent of the (often unfairly maligned) writing style of Justice Kennedy:

Citizenship, then and now, was the right to have rights—to freely participate in our political community. The Framers of the Fourteenth Amendment extended that promise to “every free-born person in this land.” We keep that promise today.

Justice Thomas's ~~interminable~~ 91-page dissent is almost entirely devoted to buttressing the revisionist history that the Roberts majority rightly associates with ugliness of the past. Thomas doesn't engage in any serious way with the practical problems that would arise out of abandoning the simplicity of birthright citizenship for a test that turns on parents' domicile, which is both a complex factual question that needs to be decided on a case-by-case basis and one that, as Professor Hamburger explained at length on this blog in February 2025, our decentralized system of registering births is ill-equipped to handle.

Here is the entirety of what Justice Thomas says in response to the practical difficulties of a domicile-based rule:

the Court suggests that “domicile” is a difficult concept to apply. But, “‘[d]omicile’ is, of course, a concept widely used in both federal and state courts for jurisdiction and conflict-of-laws purposes, and its meaning is generally uncontroverted." Mississippi Band of Choctaw Indians v. Holyfield, 490 U. S. 30, 48 (1989).

That is a non sequitur. The majority didn't say that the meaning of domicile is difficult to ascertain. It said that determining domicile in any particular case is complicated, turning on such notions as subjective intent to remain in a place. In Mississippi Band of Choctaw Indians, the question was what "domicile" meant in a federal statute. The Court explained the answer and applied it in a litigated custody case. The fact that courts know what domicile means certainly does not entail that it is simple to ascertain in any given case. It isn't. Justice Thomas's response to the majority is thus an own goal. It essentially concedes that any time a person is born in the U.S. to non-citizen parents, there would need to be litigation to determine where those parents are domiciled in order to ascertain whether the newborn is a citizen.

Justice Alito's dissent is equally unpersuasive in its attempt to deal with the implication that, under his view, children born to undocumented immigrants who know no other country would no longer be citizens. He says (on page 2 of his dissent) that "Congress can and should address their situation." But much later on he admits that this is highly unlikely, given the politics of immigration. He acknowledges (at page 31 of his dissent) that "Congress has not passed comprehensive immigration legislation" in forty years.

To be sure, the majority's response to Justice Alito's policy concerns about incentivizing birth tourism and illegal immigration are not very comprehensive, but they don't really need to be. For one thing, the U.S. faces a demographic decline that immigration, including most undocumented immigration, ameliorates. For another, the prospect of giving birth to a U.S.-citizen child from whom parents will risk being separated via deportation is not exactly the magnet for undocumented immigration that the dissenters, the Trump administration, and its allies believe. Moreover, as the majority observes, whatever incentives for birth tourism and illegal immigration exist as a result of birthright citizenship have existed for centuries. The majority ruling does not create any new problems.

Finally, Justice Alito says that other than Canada, the U.S. is "the only affluent nation where birth alone is

enough to establish citizenship." I'll have to take his word for that because although he supplied links (in footnote number 17), none of them works. It's notable, though, that there are a fair number of affluent nations that provide for conditional birthright citizenship (e.g., Australia, Germany, and UK) but, to my knowledge, none of them uses parents' domicile as a condition for the obvious reason that it is so highly contestable on the facts. True, had the Court ruled as the dissenters wished, Congress could, in theory, have legislated more readily determinate bright-line criteria for citizenship (so long as they were at least as generous as domicile in all cases), but, as I've emphasized and even Justice Alito acknowledged, that would have been highly unlikely to happen, given congressional gridlock on (fueled by rightwing nativist sentiment about) immigration.

-- Michael C. Dorf

The BPJ Majority Adopts the Bostock Dissenters' Methodology (and Some Thoughts About Equal Protection)

2026-06-30T13:48:48.322-04:00

Justice Kavanaugh's opinion for the Court in West Virginia v. B.P.J. is a culture warriors' mixed bag. In addition to making clear how important he thinks girls' and women's participation in competitive sports is, he includes some trans-inclusive language at the end of his opinion. At the same time, however, he repeatedly uses the term "biological male" when referring to transgender girls and women, and not just when it's relevant to parsing the challenged policies. In so doing, the lead opinion sides with the ongoing national anti-trans panic. That said, I prefer the tone of Kavanaugh's majority to the gratuitously and vehemently anti-trans concurrence of Justice Thomas. I suppose the best thing that can be said about that concurrence is that Justice Alito didn't join it.

What about the substance? Let's start with the Title IX claim, which was at issue in B.P.J. but not the companion case of Little v. Hecox (which, as the dissent contends, should have been dismissed as moot anyway). It's notable that none of the nine Justices endorsed B.P.J.'s contention that Title IX forbids exclusion of at least some transgender female athletes from girls' and women's sports. It might therefore seem like the Title IX claim was very weak. I disagree.

B.P.J. apparently conceded that "sex" in Title IX means "biological sex" or what might less insultingly be called "sex assigned at birth." As Justice Jackson argues in her partial dissent, however, it is not obvious that, in the absence of the concession, that is the correct way to construe the statutory term. Unfortunately, the majority does not simply rely on the concession but says (in what perhaps might be characterized as dicta in future cases) that "sex" actually means "biological sex." However, its reason for doing so is at odds with Bostock v. Clayton County.

The Bostock dissenters argued that discrimination on the basis of sexual orientation or transgender status does not constitute discrimination based on sex because the Congress that enacted Title VII in 1964 would not have understood the prohibition in that way. Justice Gorsuch, writing for the Bostock majority and true to a first principle of textualism, rejected that methodology. As Justice Scalia wrote for the Court in the Oncale case in language that Justice Gorsuch quoted in Bostock, "it is ultimately the provisions of our laws rather than the principal concerns of our legislators by which we are governed." By focusing on the subjective intentions and expectations of the Congress that enacted Title IX, the B.P.J. majority adopted the methodology of the Bostock dissenters, which is not entirely surprising, given that Justice Kavanaugh and two other members of the B.P.J. majority were in dissent in Bostock.

Justice Gorsuch's B.P.J. concurrence does a passable job of reconciling the Title IX holding with his own opinion in Bostock by focusing on the Javits Amendment, which provides specific authorization for sex-segregated sports teams, but that does not explain why he (or Chief Justice Roberts, who is the other member of the B.P.J. majority who was in the Bostock majority) signs onto all of the Kavanaugh majority opinion--including its discussion of the definition of sex in Title IX.

Turning to the constitutional issue, I am relieved that the Court did not rule that discrimination on the basis of transgender status is subject to only rational basis scrutiny, as three Justices indicated they would do in United States v. Skrmetti, and as Justice Thomas reaffirmed was his view in B.P.J. Thus, I am also relieved that the Court did not say that ascertainability at birth is a necessary condition for finding that a classification is suspect or semi-suspect. As I noted here before the oral argument, the amicus brief to which I contributed explained why doing so would have been badly mistaken.

The constitutional analysis is problematic otherwise, however.

The majority opinion makes what I regard as a logical error in one of the reasons it gives why the challenged policies satisfy intermediate scrutiny. The Court acknowledges (as it must) that the policies draw distinctions based on sex and are subject to intermediate scrutiny on that basis. The Court says the policies satisfy such scrutiny because safety and inclusion in fair competition are important interests that sex segregation substantially advances in light of on-average physical differences between males and females.

In the course of reaching that conclusion, the Court rejects the notion of an as-applied equal protection challenge. As I argued on the blog after the oral argument and as Justice Sotomayor explained at length in the principal dissent in B.P.J., the Court was wrong to do so. I understand Justice Kavanaugh's reasoning in saying that focusing on a sub-class converts the intermediate scrutiny requirement of a substantial relation between means and ends into something more like the strict scrutiny requirement of least restrictive means. However, the cases Justice Sotomayor cites do indeed support the possibility of an as-applied equal protection challenge, and the majority doesn't address them except in a footnote that I find inadequate.

In any event, even assuming the Court is correct that there's no such thing as an as-applied equal protection challenge, that's at most a reason to reject the claim that the challenged policies amount to unconstitutional discrimination based on sex. Yet the majority says (in the final paragraph on page 23 of the slip opinion) that its reasons for concluding that the policies satisfy intermediate scrutiny with respect to sex also suffice as reasons for concluding that the policies satisfy intermediate scrutiny with respect to transgender status. But that doesn't follow. If one assumes (as the Court does for the sake of argument in this part of its opinion) that the challenged policies discriminate based on transgender status, then one is necessarily examining the policies as applied to trans athletes. If so, then the fact that the policies satisfy intermediate scrutiny with respect to the much larger class would not be dispositive. Thus, the Court is making a logical error when it says that the policies with respect to trans athletes satisfy intermediate scrutiny (if it applies) "for the reasons already explained."

Accordingly, the Court appears to lack a sound reason for rejecting the dissenters' proposed solution: remand to the district court for a trial at which evidence is introduced and evaluated to determine whether the challenged policies can withstand intermediate scrutiny. Such a trial is not necessary if the question is whether the policies in general satisfy such scrutiny. The majority is correct (and I don't read the dissent to disagree on this point) that we don't need a trial to conclude that sex-segregated sports are generally constitutional.

But insofar as the majority allows for the possibility of a challenge to the policies as applied to trans athletes, the policies might or might not be able to satisfy intermediate scrutiny, based on whether, as a factual matter, trans female athletes have competitive advantages that implicate the interests in safety and fair competition. The answer might be yes. Or it might be that the advantages are sufficiently variable and unpredictable that a blanket policy is justified. But the dissenters make a good point when they note that genuine intermediate scrutiny would require looking to actual facts.

The majority's willingness to decide the matter without the development of a factual record suggests either an extension of the logical error I identified above or an alternative rationale. The latter is plausible, given that the majority makes plain that, in reliance on Skrmetti, it doesn't regard the policy as discriminating on the basis of transgender status in the first place.

And that seems to be the core problem with both Skrmetti and B.P.J. To say that a policy that discriminates based on "biological sex" does not discriminate based on transgender status seems almost willfully obtuse with respect to what transgender status is.

-- Michael C. Dorf

Our Court, the Ostrich

2026-06-30T09:18:46.084-04:00

The Supreme Court's long expected decision in Trump v. Slaughter is ostrich-like in the majority Justices' notable refusal to examine how its decision might empower a president with distinctly autocratic tendencies. (The ostrich comparison is not originally mine; Justice Jackson called the majority in Students for Fair Admissions v. Harvard "ostrich-like" in its "hope that preventing consideration of race will end racism.")

As most commentators expected, the Court in Slaughter overruled Humphrey's Executor v. United States and held unconstitutional for-cause removal protection for FTC Commissioners (and, by extension, most other independent agencies' leadership). Chief Justice Roberts' opinion relies heavily on founding-era materials to conclude that the framers created a "unitary and accountable executive." I happen to believe that the Court places too much weight on founding-era history and also that its reading of that history is, at best, overly simplistic. The Court's reading of the relevant legal precedent is also misleading. The Chief Justice depicts Humphrey's Executor as a narrow anomaly, but it was arguably the most important decision in the area of presidential removal power until about 2010 when the Roberts Court started systematically chipping away at it starting in cases beginning with Free Enterprise Fund v. Public Company Accounting Board.

Much more could obviously be said about these (and other) critiques (including Mike's thoughtful analysis here), but I want to focus on something else. What might be most extraordinary about the Slaughter decision is that the majority opinion says not a word about its real-world consequences. Specifically, the Chief Justice's decision does not grapple with how the case fits into President Trump's efforts to take control of the entire federal bureaucracy. Nor does the Court acknowledge that the president's claimed power over that bureaucracy is probably best understand as part of a larger effort to use the power of the White House to erode democratic guardrails. Even if the Court has the history and precedent right--and I don't think it does--it is notable that the Court would extend to the President nearly unlimited control over previously independent agencies without saying a word about what that decision might do to our democratic order at this particular moment. The Court, in effect, treats the case as an abstract legal problem divorced from the real world at an especially perilous moment when courts more than ever should be cognizant of their decisions' implications for democracy.

This is not to argue that consequential reasoning alone should govern constitutional decision making. Text, structure, precedent, history, and other modalities should (as always) play some role. But if we care about the founders' vision, as the Court professes, then surely it must also be relevant that the framers sought to create a pragmatic government that prevented too much power from amassing within any one branch. As Cass Sunstein has recently put it, "The U.S. Constitution, an emphatically liberal document, is meant to prevent tyranny."

Today's Court says very little about tyranny. To the extent it expresses concern about governmental power, its chief villain is Congress. Partisan gridlock, however, has rendered Congress increasingly impotent in recent decades. This isn't to say Congress can't tyrannize, but rather that it has been far too dysfunctional in recent memory to do so--or to do too much of anything (with, of course, some notable exceptions).

The threat of governmental tyranny nowadays is far more likely to emanate from the executive branch--especially this executive branch. The Court did not mention this at all, even though that threat of tyranny is directly relevant to this case. As Kim Lane Scheppele has documented, aspiring autocrats try to take control of the national bureaucracy so that civil servants answer only to the leader of state rather than the law. Viewed through this lens, the firing of Rebecca Slaughter was part of a larger project to bring the nation's administrative state entirely under President Trump's control. Other examples include stripping tens of thousands of federal workers of their civil service protections, authorizing the so-called Department of Governmental Efficiency to prepare "large-scale reductions in force," gutting Congressionally created agencies like the Department of Education, firing governmental inspectors general, and wielding the Department of Justice's prosecutorial power to attack the President's political enemies. The list, unfortunately, could go on and on.

To be sure, these other exercises of presidential power might not seem immediately relevant to the issue in Slaughter about whether Congress can limit the president's power to remove leadership from administrative agencies. In another sense, though, President Trump's use of executive authority is highly relevant because it suggests that he is, in fact, wielding the autocrats' playbook, and the unitary executive theory is an important tool in that playbook. Notwithstanding the Chief Justice's competent but one-sided account of the history, it is far from clear that the founding generation arrived at a definitive view on the president's removal power. (Indeed, after the framing and ratifying processes were complete, the First Congress continued to wrestle extensively with these issues of executive removal.) By contrast, it is clear that the founding generation opposed tyranny, and yet the majority opinion says nary a word about how Slaughter's firing may fit into a broad autocratic pattern. Nor does the Court entertain the possibility that a future administration, perhaps a Democratic one, could use this same authority to tighten its hold on power.

The Court's ostrich tendencies in recent decisions are not confined to Slaughter. In Mullin v. Doe, the Court refused to acknowledge the administration's racist language connected with its removal of Temporary Protected Status of Haitian immigrants. As Justice Kagan noted in dissent, the evidence included "statements by the President so repellent and racially inflected that the majority declines to put them in print." President Trump had said the Haitians are "eating the dogs.... They're eating the cats;" they "probably have AIDS;" and they hail from a "shithole country." The President also wondered why the U.S. could not instead "have some people from Norway [and] Sweden." Even though these statements seem racially coded, the majority refused to grapple with any of this evidence, brushing it off as "not overtly racial." How are we to trust the majority's conclusion that the president's statements were not "overtly racial" when the majority doesn't even identify, let alone engage with, the relevant evidence?

It is not like the Court is incapable of grappling with real-world facts. In Trump v. Cook, the Court (by a bare 5-4 majority) recognized that to accept the president's theory of removal "would in effect transform the Federal Reserve's for-cause protection into at-will employment." The Court, in other words, acknowledged that, practically speaking, if it permitted the President's for-cause removal in this case, it would effectively be eviscerating for-cause protections altogether. Moreover, the Court in Cook acknowledged the practical importance of the Federal Reserve's independence, explaining "[w]e see no reason to. . . sow doubt as to the status of one of our Nation's (and the world's) most important financial institutions." The Fed's financial importance, of course, does not satisfactorily distinguish the Federal Reserve Bank, whose Board of Governors still enjoy for-cause removal protections after Cook, from other independent agencies, whose leadership does not enjoy such protections after Slaughter. Nevertheless, the Court's discussions here show that it is not always willfully naive to real-world facts.

But it often is, and that's a real problem--especially now. There is ample evidence that the current administration is following the autocratic legal playbook to, in Scott Cummings' words, "destroy democracy through law." President Trump's firing of FTC Commissioners is one move in that much larger effort, but you wouldn't know a thing about it from reading the majority decision in Trump v. Slaughter. The Court's motto could be "See no evil, hear no evil, speak no evil."

At some level, I can appreciate the Court's reluctance to engage with this administration's various moves that are not immediately pertinent to the case before it. A discussion of other political antics might seem gratuitous. Some Justices also may want to avoid provoking the president so as to save their political capital for another day. (Some other Justices may be just fine with much of what the current administration is doing.) And the Court may want to issue a decision "for the ages" not too tethered to any particular moment in history.

Ultimately, though, it is highly concerning that the Court refuses to grapple with the dangers to democracy posed by this president--or by any president with autocratic instincts. Separation of powers is our Constitution's primary mechanism to guard against any single branch's aggregation of too much power, and the Court insisted that its decision in Slaughter was all about separation of powers. However, the Court, ostrich-like, didn't seem to notice those threats at all.

-- Eric Berger

One Grudging Cheer and Multiple Emphatic Jeers for Trump v. Slaughter

2026-06-29T13:05:13.744-04:00

Given the Court's failure to grant interim relief and its per curiam opinion last year in Trump v. Wilcox, the ruling today in Trump v. Slaughter cannot have come as a surprise to anyone paying even the slightest bit of attention. That is not to say that Slaughter will be anything but a disaster. By invalidating removal restrictions for the Federal Trade Commission (FTC) and nearly every other hitherto independent agency, the Court has backed the ongoing onslaught of political cronyism as against professional government. The decision would be harmful under any circumstances. It is all the more so now, when the particular president empowered to remove members of independent agencies without cause is a corrupt, vindictive narcissist whose preferred replacements for subject-area experts are sycophantic ignoramuses.

Having said that, I will give the conservative super-majority who signed onto the Chief Justice's opinion in Slaughter a little bit of credit. They had the decency to actually overrule Humphrey's Executor v. United States rather than to claim disingenuously that the FTC of today is somehow vastly different from the FTC of 1935 or to seize on some other bogus distinction that would enable them to claim that Donald Trump's firing of Rebecca Slaughter was somehow different from FDR's firing of William Humphrey.

The Roberts Court has not always been so forthright about the fact that it was overruling precedent. In recent memory, one of the most egregious examples is Students for Fair Admissions v. Harvard, in which the Court never quite admitted that it was overruling its prior affirmative action decisions, with Justice Kavanaugh in a concurrence going so far as to seize on some stray aspirational language in Justice O'Connor's opinion in Grutter v. Bollinger to claim that those earlier decisions had merely reached their sell-by date.

But there my praise for today's decision must end. Indeed, even just focusing on honesty, the Slaughter opinion gets low marks. Consider what the majority says about Morrison v. Olson.

Not one for understatement, Justice Scalia observed in dissent that the Court had “swept” Humphrey’s “into the dustbin of repudiated constitutional principles.” The Court put the matter more delicately, but no less definitively. “We undoubtedly did rely on the terms ‘quasi-legislative’ and ‘quasi-judicial’” in Humphrey’s, the Court noted, “but our present considered view is that” the constitutional question “cannot be made to turn on” such “rigid categories,” at least for inferior officers.

What?! Yes, it's true, Chief Justice Rehnquist's opinion did distinguish the "quasi" categories of Humphrey's in that way, but it did so for exactly the reason that the Slaughter dissent says: to expand beyond Humphrey's. The respondent in Morrison argued that the presidential removal limits at issue there were unconstitutional because the independent counsel exercised the purely executive function of prosecution and thus fell outside the "quasi" categories. The majority rejected the argument by saying that in some cases, even pure executive authority can be vested in an officer who is not subject to at-will presidential removal. Morrison said that falling within one or more of the quasi categories was no longer a necessary condition for independence (at least for inferior officers). There was no occasion for the Morrison Court to say whether falling within them was still a sufficient condition. The Slaughter majority's reading of Morrison is either dishonest or incompetent.

The same can be said for other aspects of the Slaughter majority opinion. As Justice Sotomayor's dissent elaborates in detail, the majority repeatedly overstates the evidence for the proposition that from 1789 until the early 20th century, the nation had settled on the view that the president's ability to remove a principal officer who exercises any executive power must be unfettered.

Not that it would be acceptable to completely erase the 20th century (and the last third of the 19th) even if the majority's account of the earlier history were accurate. Even if one thought that the best reading of the original understanding of the Constitution and early practice did require unfettered presidential removal power, the prevalence of independent agencies with good-cause removal protection has been a key feature of American government at least since Humphrey's in 1935. Congress undoubtedly relied on that feature extensively in creating the agencies it did and, as importantly, giving them the powers it did.

In his Slaughter concurrence, Justice Gorsuch acknowledges as much, but he takes the point in a very different direction. He rightly worries that Congress might not have given the vast powers it has given independent agencies if it had known that the leaders of those agencies would be rendered subject to at-will presidential removal. And Congress cannot effectively undo those delegations without enormous (and thus enormously unlikely) bipartisan consensus because the president would likely veto most bills that reduced the powers of erstwhile independent agencies. Justice Gorsuch's solution, however, is not to adhere to Humphrey's in light of the importance of reliance to stare decisis but to suggest that the Court can respond by reinvigorating the nondelegation doctrine. Limiting effective regulation is to Justice Gorsuch what tax cuts are to Republican politicians: the solution to every problem.

What's the majority's response to congressional reliance on Humphrey's? Quoting Ramos v. Louisiana, the Court points to "the reliance interests of the American people . . . in the preservation of our constitutionally promised liberties." That's a non sequitur on its face because unlike Ramos, which concerned the Sixth Amendment right to a unanimous jury in a criminal case, Slaughter is not an individual rights case but a structural one. Moreover, the Ramos language cannot be taken too seriously. After all, in any constitutional case there will be a reliance interest in preservation of whatever the Court thinks the Constitution requires. If that cancels out more concrete reliance, then reliance plays no role in stare decisis in constitutional cases.

The majority does somewhat better in pointing to INS v. Chadha. There the Court invalidated the legislative veto even though Congress had put one into nearly 300 statutes. There too there was a worry that Congress might not have delegated as much power as it did had it known the legislative veto was invalid, and Congress could not easily overcome a presidential veto to correct the balance.

So, does Chadha show that congressional reliance on Humphrey's was misplaced? In a word, no. For one thing, as Justice Sotomayor notes in dissent, Chadha was based on the plain language of Article I, Section 7, whereas, apart from the majority's tendentious reading of Article II's Vesting Clause, the Constitution is silent about removal. Even more importantly, Chadha did not overrule any prior precedent of the Court. It is thus not itself a precedent about what counts as adequate reliance for stare decisis purposes.

Finally, the Slaughter majority's treatment of the Federal Reserve is peculiar. In a brief paragraph, the Court notes that it has previously suggested that the Fed might be distinguishable from most other independent agencies but goes no further. It says only this: "Our prior cases do not necessarily implicate the constitutionality of [the Fed.] Our opinion today should not be read to do so."

Leaving open a question not directly presented in Slaughter would be fair enough, except that in Trump v. Cook, a ruling handed down literally within minutes of Slaughter, the Court devotes nearly three pages of its slip opinion to saying that Fed independence is constitutional, adding this: "We see no reason to leave the public in limbo, or to sow doubt as to the status of one of our Nation’s (and the world’s) most important financial institutions."

If the choice is between invalidating all independent agencies with no exception for the Fed and making such an exception, I'm glad the Court chose the latter option. Nonetheless, it is passing strange that Chief Justice Roberts, writing for the majority in Slaughter, did not seem to realize what he was simultaneously writing for the majority in Cook.

-- Michael C. Dorf

SCOTUS End-of-Term Opinions Today: Blog Post Coming This Afternoon

2026-06-29T07:00:00.000-04:00

Good morning! This morning the Supreme Court will hand down opinions in some or all of the merits cases remaining on this docket from the OT 2025 Term. We await rulings in:

Trump v. Barbara (birthright citizenship). I blogged about the case here and here. Prof Krishnamurthi blogged about it here. I also hosted a guest post on the case from Profs Scott Titshaw and Stephen Yale-Loehr. And I wrote a Verdict column about the policy stakes.

Trump v. Slaughter (independent agencies). I blogged about this case before and again after the oral argument.

Trump v. Cook (pretextual firing of Fed Governor Lisa Cook). I addressed some of the issues at stake back in August of last year. I took a deep dive into whether the Fed is really distinguishable from other independent agencies just before the oral argument.

Little v. Hecox and W. Va. v. B.P.J. (transgender athletes). I filed a brief (as co-counsel and as an amicus party) in support of the trans athletes in these cases. I previewed the issues on the blog and then wrote up some reactions after the oral argument. In a Verdict column, I explained why the government's main argument amounts to trans erasure.

Chartrie v. U.S. (4th Amendment implications of cell-phone location data). I discussed the case and the underlying stakes before the oral argument.

Watson v. RNC (mail-in ballot timing).

National Republican Senatorial Committee v. FEC (First Amendment challenge to coordinated party expenditures).

I'll take some time to read whatever opinions come down this morning and then try to write up some thoughts for a blog post later today, with likely additional posts coming as the week progresses. I will not be surprised if the Court adds tomorrow and possibly even Wednesday as further hand-down days. If it does so, I would expect it to save Trump v. Barbara and Trump v. Cook for the last day of the Term, especially if the rulings go against President Trump. By doing so, the Court will be able to project an end-of-Term image of non-partisanship despite the many Trump victories and rightward shifting of the Overton window from the Term as a whole. In addition, because Trump can't stomach losing anything, getting out of town right after handing him a couple of defeats would be a prudent move for the Justices.

-- Michael C. Dorf

The Insanity and Incoherence of the Bruen Test for Second Amendment Cases

2026-06-26T07:28:53.137-04:00

Reasonable people can disagree over whether the Constitution as a whole protects an individual right to own guns apart from militia service. Although the Supreme Court has misread text and distorted history to locate that right in the Second Amendment, which only applies to militia service, such a right could be created by reasonable judicial interpretations of the Ninth and Fourteenth Amendments. After all, the Court has recognized an array of fundamental unenumerated rights, such as the right of competent adults to refuse medical treatment, and Americans have prized their guns for centuries in ways that might suggest judicial protection for such a right.

Reasonable people can also disagree in many cases involving gun laws over whether the right is burdened in ways that are not justified by the reasons supporting the law. The virtually complete ban on handguns in District of Columbia v. Heller, for example, might be such a law.

But the Supreme Court’s decision in New York State Rifle & Pistol Association, Inc. v. Bruen, which sets forth the current framework for evaluating laws that burden the right to own and carry guns, is so incompetent, wrong, and frankly stupid, that this entire area of the law is now an incoherent mess. Yesterday’s decision in Wolford v. Lopez, which Mike wrote about on Thursday, demonstrates this insanity.

For centuries, Hawaii had some of the strongest gun laws in the country. These laws survived the Heller decision but could not outlast Bruen, which created a new two-part test for judges to use to evaluate the constitutionality of laws designed to protect the public from gun violence. The law at issue in Wolford prohibited the carrying of guns on private commercial properties such as restaurants, theaters, and shopping malls without the owner’s express consent. All parties agreed, as did the Court, that no one has the right to carry a gun on private property against the wishes of the owner of the property. The issue in Wolford was whether a state could create a presumption that owners have not consented to guns on their property.

Part one of the Bruen test asks whether the statute at issue implicates the right to own and carry guns under the Second Amendment. Wolford makes it clear that, despite the Roberts Court’s typical virtue signaling that originalism is its preferred method of constitutional interpretation, history is irrelevant to that question. As Justice Jackson argued in dissent, any law that in any way limits the right to own and carry guns, no matter how trivial, now passes the first part of the test. In essence, there is no real step one anymore, though judges in future cases will have to pay lip service to this non-step-step.

Justices Jackson and Sotomayor argued that the Hawaii law did not trigger the right to own guns at all because people have no right to carry guns onto private property they do not own. I find this argument persuasive but will concede that reasonable people can disagree about that point, as Mike argued in his post.

At step two, the law can only be affirmed by a court if the government can show historical analogues to the law either in 1791 or 1868. It does not matter what modern considerations are at stake or whether the weapon at issue did not exist in any form during those time periods. The test is solely historical and is terrible as a matter of policy and inconsistent with any reasonable originalist approach to constitutional interpretation. As to the latter point, I previously have written the following about Bruen:

Justice Thomas said that the only legitimate methods of constitutional interpretation for judges to use are text and history and that courts should not balance public policy concerns against the weight of asserted rights. The founding fathers, however, simply did not treat rights that way. Constitutional rights were subject to restrictions if policy concerns were substantial enough. As Professor Jud Campbell has written, almost everyone at the Founding (and before) thought “rights were not a set of determinate legal privileges or immunities that the government could not abridge. … Rights…could be restricted by law to promote the good of the society.”

At the very least, the Framers understood that judges always had to balance the reason for the law at issue with the strength of the asserted claim. Yet, Justice Thomas, writing for all the originalists, specifically rejected this mode of analysis universally accepted when the people ratified our Constitution .... Bruen may well be the most anti-originalist opinion in history.

In Wolford, the majority and dissents disagreed over whether the government had provided sufficient analogues. I think the dissent was far more persuasive, but that is not the point I want to make. Rather, the history-and-tradition-only approach in step two is unconscionably dumb and dangerous for any civilized society, and no other country in the world resolves legal disputes in this manner.

First, today’s weapons are nothing like the muskets and pistols available in 1791 and also substantially different from publicly available arms in1868. It is utterly ridiculous to compare the potential harm caused by the weapons available long ago and the potential harms caused by AK-47’s, much less handguns one can hide in a pocket. Right off the bat the historical test makes no sense. It is like saying regulations over the use of cars such as the requirement to wear seat belts can only be upheld by judges if there are analogues in a world where horses and ferries were the primary methods of ground transportation.

Second, Bruen does not allow the government to present policy reasons supporting a gun regulation, no matter how important those interests are or how trivial the burden on gun ownership happens to be. Could Hawaii pass a much narrower law making it illegal to hide an AK-47 in a guitar case when entering a music club without the express consent of the owner? Under Bruen step two, there is no balancing of the purposes of the law against the burden it imposes. Instead, Bruen requires a judge to go on a wild goose chase through centuries of history to find a similar law with virtually no guidance on how similar those analogues need to be or how many analogues are required.

We know that in both Bruen and Wolford the government relied on similar laws that were dismissed by the Court either as outliers or not sufficiently similar. There are no usable standards that the Court has articulated to help judges determine what makes prior laws outliers or not sufficiently similar to the challenged law.

Third, the transformation of the constitutional inquiry from the usual balancing test that courts almost always employ to resolve cases into a purely historical test requires judges to try to parse history in ways that they, and the lawyers who appear before them, are simply unqualified to perform. Moreover, we do not know even after three cases employing the Bruen framework whether the relevant time period is 1791 when the Second Amendment was ratified, 1868 when the Fourteenth Amendment was ratified (incorporating most of the Bill of Rights to the states) or both. This uncertainty could obviously matter in future cases.

The inevitable result of this framework is that judges will decide these cases based on their own personal values concerning the balancing of gun rights and public safety before they manipulate historical sources to justify results that they reached on other grounds. This lack of transparency is a serious threat to the rule of law.

No one alive in either 1791 or 1868 had any experience with small deadly guns that can be hidden in one’s pocket or with the terror and harm unleashed by a bad guy with an AK-47. This reality means that in most gun cases history will provide little or no guidance. If you do not believe me, here is Justice Scalia on whether it is reasonable under the Fourth Amendment for police officers to routinely search the pockets of people they stop for routine traffic violations just in case they are hiding a gun: “even if a ‘frisk’ prior to arrest would have been considered impermissible in 1791 . . . perhaps it is only since that time that concealed weapons capable of harming the interrogator quickly . . . have become common—which might alter the judgment of what is ‘reasonable’ under the original standard.”

In other words, even if the Founding generation had specifically considered the legality of protective frisks prior to arrest, and even if they had decided that such frisks were illegal, the same issue may be decided differently by future judges because of societal and technological changes occurring after the Constitution was ratified.

Scalia’s approach here is obviously right. But in the context of the Second Amendment post-Bruen, it is not allowed.

The Bruen test is anti-originalist, anti-common sense, and unusable in a consistent manner. Someday it will be discarded by the Court, and that day cannot come soon enough.

-- Eric Segall

What Weight, If Any, Should Be Given Racist Laws In A History-and-Tradition Test?

2026-06-25T13:11:42.422-04:00

In Wolford v. Lopez, Justice Alito wrote an opinion for a 6-3 Court, holding that a Hawaii law that requires express consent from the owner of private property otherwise open to the public to bring a firearm onto the private property violates the Second Amendment as made applicable to the states via the Fourteenth Amendment. Much of the dispute followed a familiar pattern in ideologically divisive Second Amendment cases. The conservatives invoked history and tradition to say that the challenged law is an impermissible innovation; the liberals objected to the test but said that even applying it, the law should be upheld.

Beyond the usual back-and-forth, Justice Jackson, dissenting for herself and Justice Sotomayor, chastised the majority for considering history and tradition only at step 2 of the Bruen test. The logic of originalism, she said, would make the question whether Hawaii's law even infringed Second Amendment rights subject to an inquiry into the original understanding of the Second Amendment.

That's not a bad argument, but I think it's pretty clearly foreclosed by earlier cases, in which the Court has said that the threshold inquiry is whether the challenged law infringes on the right, with history-and-tradition coming in at the point at which the Court evaluates whether the regulation is permissible. What Justice Jackson's objection shows, to my mind, is that the Bruen framework is not originalism as such but a Court-created test that, for reasons that are never satisfactorily explained, incorporates history and tradition. Thus, while I agree with Justice Jackson that this bifurcation is unjustified, I think her dissent would be more persuasive on this point if it were offered as a reason to modify the Bruen framework.

Another divide concerned whether to characterize Hawaii's law as a regulation of firearms at all. The state argued, and Justices Jackson and Sotomayor agreed, that the challenged law is simply a regulation of property rights. Because everyone agrees that there is no Second Amendment right to take a firearm on private property without the property owner's consent, the law is a kind of no-trespassing rule that has nothing to do with the Second Amendment, they said.

As I explained here on the blog after the oral argument in Wolford, I think the contention that the Hawaii law is only about property is wrong. But I also think it might have been presented and received in a way that was at least arguable. My post-oral-argument analysis on this point remains true now, so I'll simply reproduce it:

The state law flipping the default rule is state action that in many circumstances restricts firearms. Before the law was passed, one could go armed into a coffee shop in Hawaii that had no sign posted regarding firearms. Now one cannot without first obtaining the owner's permission. Just as a law requiring a property owner's prior consent to engage in door-to-door solicitation infringes First Amendment rights, the argument goes, so the Hawaii law likewise infringes Second Amendment rights.
Analogizing Second Amendment rights to First Amendment rights is a common move by the Roberts Court. Although the analogy isn't perfect, I do think that here it illustrates the point that a law changing the default rule for determining a private property owner's consent or lack thereof can infringe other rights. Thus, I did not find the it's-just-about-property line of argument to be persuasive.
Now, that's not to say that a more persuasive argument couldn't have been built on these grounds. Suppose the state had commissioned a reputable researcher to determine opinion regarding the views of property owners, and it determined that a very high percentage of them did not want people coming onto their property armed, even if their property was otherwise open to the public. In that situation, perhaps one could say that flipping the presumption doesn't reflect any adverse treatment of people carrying firearms but merely does a better job of effectuating property owners' preferences when they are silent.
To be sure, one might still think that the Second Amendment places a thumb on the scale. I could imagine the Court saying that a presumption that solicitation is unwelcome violates the First Amendment, even if that presumption corresponds to the views of most or even an overwhelming majority of property owners. And whether actual property owners' preferences get disregarded might be different for First Amendment versus Second Amendment purposes.
The closest the state came to advancing the kind of argument I'm hypothesizing was by pointing to the very long tradition of firearms restrictions in Hawaii--going back to its time as a kingdom. Unfortunately for the state, however, this argument was not received as evidence of property owners' preferences but as an attempt by Hawaii to argue that it has a state-specific history and tradition that satisfies the second step of Bruen. But the plaintiffs, the U.S., and the conservative Justices were not at all receptive to that notion, as they plainly think that the history-and-tradition test is satisfied or not on a national basis. And thus, the Court will reach Bruen step 2.

That is pretty much exactly how the issue played out.

I turn now to the other issue that got some considerable attention during the oral argument and that re-surfaced in the opinions and the principal dissent. (Justice Kagan wrote a short separate dissent agreeing with that portion of the Jackson dissent that characterized the colonial-era laws to which Hawaii pointed as sufficiently analogous to satisfy the Bruen test.)

Hawaii pointed to colonial-era laws and post-Civil War laws as analogous to its challenged law. The majority rejected the colonial-era laws on the (contested) ground that they were mostly about preventing poaching. The majority and a concurrence by Justice Barrett (joined by Justices Thomas and Gorsuch with respect to the relevant portion) rejected the post-Civil War laws on the ground that they were odious--enacted as part of the infamous Black Codes that sought to reinstate slavery in all but name and to which Congress and the People responded by adopting the Fourteenth Amendment.

Justice Jackson pushed back. Yes, she said, of course the Black Codes are odious, but was the relevant provision odious only because it was racially discriminatory or also because it infringed what was taken to be a Second Amendment right? She offered evidence to suggest the former.

Justice Barrett responded by saying that an acceptable analogical antecedent under Bruen must be similar both with respect to how it regulated firearms and also with respect to why. And she went on, obviously Hawaii did not switch its default rule about arms-carrying on private property open to the public for the racist reason that motivated the Black Codes, so the "why" part of the analogy fails.

I'm not quite sure what to make of that response. It strikes me that Justices Jackson and Barrett were answering different questions. And as with all of these cases applying Bruen, much depends on the level of generality.

That said, I think Justice Barrett can be understood to be making a broader point as well. She wrote: "It is beyond me why Hawaii would claim that these vile laws can justify its present-day restriction." There is a sense in which she seems to be saying that the Black Codes are such a despicable part of our national history that they are simply off-limits as any kind of precedent. That is certainly how Justice Jackson read both Justice Barrett's concurrence and the Alito majority opinion.

Justice Jackson was careful to say that the Black Codes aren't necessarily useful precedent. But she did insist that they could be, at least for some purposes, and that to dismiss them the majority and Justice Barrett need a better developed account of what history counts and what history doesn't count.

The debate over whether to regard anything from the Black Codes as an acceptable legal source is in an important sense a debate over what I called in a 2011 lecture and 2012 law review article "tainted law." It also resonates with broader cultural divides.

The conservative super-majority is not fully Trumpian in their attitude towards history. They do not regard American history as one glorious triumph after another. They acknowledge that slavery and the Black Codes were evil. Still, in seeing them as vile outliers, there is a Trump-adjacent triumphalism. As a general matter, they say, we can turn to history to define our current rights, even though, at the time of the Constitution's adoption, fewer than half of the states forbade slavery, and three of the ones that did had enacted gradual emancipation schemes that had not yet taken full effect.

Justices Jackson and Sotomayor share the majority's view that the Black Codes were, in Justice Barrett's term, "vile," but they see such enactments as continuous with American history more broadly. That is why Justice Jackson demands an explanation from the majority of how it separates those laws that are too tainted to count as part of the salient history and tradition from those that count. Whatever they might think about all of the details, the Court's liberals share the attitude of the 1619 Project and Jill Lepore's These Truths that slavery and racial oppression were woven into the warp and woof of the American republic. If courts must automatically discount laws tainted by inegalitarianism, then there will be no place at all for history in interpretation.

A critic might say that this is what the liberals want: to banish the likes of Bruen's history-and-tradition test. But that misses the point. It is the conservatives who insist on looking to history and tradition but, apparently, only sometimes. Understood in wider context, Justice Jackson is challenging the conservatives to confront our actual history rather than to rely on a sanitized version in which the nasty bits can be easily excised.

-- Michael C. Dorf

Does the Most Favored Nation Approach to Religious Discrimination Apply in Prison?

2026-06-24T07:00:00.000-04:00

Yesterday, the Supreme Court held that the Religious Land Use and Institutionalized Persons Act (RLUIPA) cannot be the basis for a lawsuit for money damages against state prison officials who blatantly violate it because, according to the 6-3 majority opinion of Justice Gorsuch, laws enacted pursuant to the Spending Clause cannot authorize liability against people who are not the recipients of federal funding. Louisiana, the Court said, took the federal money and thus subjected itself to RLUIPA, but the officers did not. As a consequence, petitioner Damon Landor was left without a remedy against the officers who shaved his head in violation of RLUIPA, even after they were clearly informed that doing so would violate Landor's sincere Rastafarian beliefs.

In my latest Verdict column, I offer three reasons why the holding in Landor v. Louisiana Dept of Corrections and Public Safety is problematic. The first two track arguments made by Justice Jackson (joined by Justices Sotomayor and Kagan) in dissent: (1) there's something peculiar about saying that RLUIPA binds the officers but also that it can't make them liable in damages, at least where, as here, there is no plausible claim of any kind of immunity; and (2) the majority skipped over the statutory question whether RLUIPA authorizes damages suits against individual officers. I then add a third criticism of my own: even if the Spending Clause can't constitutionally authorize the lawsuits, the Commerce Clause can, and RLUIPA invokes both clauses.

In this essay, I want to turn to a question that was not before the Supreme Court in Landor: Did the plaintiff have a good Free Exercise claim? Landor raised one in the district court, but that court rejected it, citing the Supreme Court's decision in O'Lone v. Estate of Shabazz, which stated the general proposition that infringements on the free exercise rights of prisoners are not to be measured by strict scrutiny but only by asking whether they are reasonably related to legitimate penological interests. The O'Lone test is not at all protective, as the facts of that case illustrate. The Court there allowed prison authorities to block religiously required weekly group prayer in part because Muslim prisoners were given opportunities to practice other aspects of their faith, such as alternative meals to pork and some accommodations during Ramadan.

Here a brief digression: To my mind, the focus on other religious observances in O'Lone reflected a kind of doctrinal confusion on the Court's part. An earlier case--Turner v. Safely--had established the "legitimate penological interests" test for infringements on prisoners' constitutional rights. As relevant, Turner involved a right to communicate, an area in which alternative channels of communication are salient to whether a restriction is valid. Consider that part of the test for the validity of time, place, and manner restrictions is whether they leave such alternative channels open. But the focus on alternatives makes little sense as applied to religion. A person whose faith requires doing A and B while refraining from X and Y lest he be condemned to eternal damnation will find cold comfort in the prison authorities allowing him to do A but not B while requiring him to do X but not Y.

Despite my disagreement with O'Lone, I do not deny that it has been the law for nearly forty years. Notably, it was decided in 1987, almost three years before the Supreme Court held in Employment Division v. Smith that free exercise does not require exceptions from so-called neutral laws of general applicability. Thus, even if the Court were to overrule Smith, petitioners like Landor would appear to be out of luck under the Free Exercise Clause--left to rely only on RLUIPA.

Or would they be? I want to suggest that even under existing law the district court wrongly dismissed Landor's free exercise claim.

Suppose that a prison has a policy of serving a vegetable, a slice of bread, and a piece of pork at every meal. Now suppose that the Jewish, Muslim, and Jain prisoners, as well as those among the Hindu and Buddhist prisoners who are vegetarian or vegan because of their faith, ask the warden if they can have an alternative protein source because they have religious objections to eating pork. And suppose the warden consents to the request but only for the Jain and Muslim prisoners (or only for some other proper subset defined by religion). Regardless of whether there would be a right to non-pork meals on a freestanding basis under O'Lone or RLUIPA, it seems clear that the selective denial of the non-pork meals on religious grounds would be unconstitutional religious discrimination.

Why? Because both pre-Smith and post-Smith pursuant to Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, discrimination on the basis of religion is the quintessential free exercise violation.

But now consider what counts as discrimination on the basis of religion for purposes of free exercise. Since Tandon v. Newsom in 2021, the Court has applied a "most favored nation" approach. Under it, "government regulations are not neutral and generally applicable, and therefore trigger strict scrutiny under the Free Exercise Clause, whenever they treat any comparable secular activity more favorably than religious exercise." (Emphasis in original). In Tandon, the Court found that California's home-gathering restrictions during the COVID pandemic were not neutral and generally applicable even though they applied to non-religious as well as religious home gatherings because they did not apply to what the per curiam opinion referred to as other "comparable secular activities" such as going to "hair salons, retail stores, personal care services, movie theaters, private suites at sporting events and concerts, and indoor restaurants."

Now apply that principle to Landor. The record in the case itself doesn't provide many details about the Louisiana Dept of Corrections policies because the original complaint was filed pro se and the free exercise claim was dropped on appeal after being rejected by the district court in a short paragraph relying on O'Lone. However, the policies are described in a 2017 Fifth Circuit case involving a different Rastafarian prisoner, Christopher Jerome Ware. The Fifth Circuit held that RLUIPA forbade the Louisiana Dept of Corrections from cutting Ware's hair.

Part of the pathos of yesterday's SCOTUS case is that Landor presented a copy of the Fifth Circuit ruling in Ware to the prison officials so that they wouldn't shave his head. Not only did they ignore the ruling; they threw it in the trash.

I'm now suggesting that in addition to validating his RLUIPA claim, the Ware case should have validated Landor's free exercise claim of religious discrimination. In the course of explaining why the prison's policy did not satisfy strict scrutiny, the Ware court said this: "the grooming policies are underinclusive because the parties agree that they do not apply to approximately half of DOC inmates: those inmates housed in parish jails for the duration of their incarceration but who remain in the legal custody of DOC (parish inmates)."

Assuming the policy remains the same, if Landor were being confined as a parish inmate--a secular designation--he would not have had his head shaved. Thus, he was treated less favorably than a great many comparably situated prisoners who had secular reasons for not wanting their heads shaved. Per Tandon, that is religious discrimination, and per the force of my hypothetical example of selective denial of pork-free meals, such religious discrimination is a free exercise violation notwithstanding O'Lone and Smith, and regardless of RLUIPA. And because 42 U.S.C. § 1983 is not a Spending Clause statute, individual officer liability is permitted (subject to the limits of the Prison Litigation Reform Act and, where applicable, qualified immunity).

Now it might be objected that the parish inmates are not comparably situated to Landor, but that seems wrong in light of the analysis in Tandon. If anything, comparability seems clearer here: whatever cleanliness or security interests might justify a short-or-shaven-hair grooming policy don't differ based on the status of the prisoner, whereas in Tandon one could very plausibly think (as the dissenters thought) that spending a few minutes in a grocery store poses less of a COVID risk than gathering for hours and singing hymns in the close quarters of a home.

That leaves only one other ground for thinking the Tandon analysis might fail. Maybe Tandon's definition of religious discrimination doesn't apply in prison. Maybe, that is, just as the Court watered down free speech for prisoners in Turner and watered down free exercise as an affirmative liberty right in O'Lone, it might, in a future case, water down the concept of religious discrimination for prisoners so that instead of Tandon, only express religious discrimination of the pork-alternative-hypo sort counts.

But the Court hasn't taken that step yet. Until it does, future prisoner claimants would be wise to make Tandon claims along with whatever remains of their RLUIPA claims following Landor.