The Volokh Conspiracy

Mostly law professors | Sometimes contrarian | Often libertarian | Always independent | Est. 2002

The Volokh Conspiracy

Politics

Short Circuit: An inexhaustive weekly compendium of rulings from the federal courts of appeal

Rebellion, bullet control, and vulgarity cloaked in euphemism.

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Please enjoy the latest edition of Short Circuit, a weekly feature written by a bunch of people at the Institute for Justice.

At IJ's Center for Judicial Engagement, we've long argued that having judges who can say "no" to the executive branch are a crucial, necessary condition to freedom, prosperity, and the "rule of law." But just what does it mean to have a "rule of law"? Over at our blog, Anthony Sanders discusses the essentials.

New on the Bound By Oath podcast: For the final episode of Season 3, we survey several strands of Supreme Court precedent that make it really, really hard for Native Americans to put their property to peaceful and productive use.

  1. Gov't watchdog group brings FOIA lawsuit to force DOJ's Office of Legal Counsel to make several categories of its written opinions publicly accessible. D.C. Circuit: FOIA doesn't apply to any of the requested opinions, including those about interagency disputes, as they are neither adjudicatory nor adopted as the agency's working law. Watchdog group gets nothing. Concurrence: They should get nothing because they lack standing.
  2. New York requires ammunition sellers to conduct a background check on anyone buying ammunition. Ammunition sellers and gun owners sue and seek a preliminary injunction, alleging the law violates the Second Amendment. District court: The law is consistent with our historical traditions. Second Circuit: Actually, we don't even have to look at the history, because having to fill out some paperwork to buy bullets doesn't meaningfully constrain the right to keep and bear arms. Read More

Apparent "Fabricated Citations" in Smith v. Trump Motion Filed by One of the Defendants

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In the underlying lawsuit, Capitol Police officers are suing over injuries sustained in the January 6 riot; the defendants include President Trump and many others, including Kelly Meggs (an Oath Keepers member). Yesterday's Order to Show Cause by Judge Amit Mehta (D.D.C.) orders Meggs' counsel to "show cause … why the court should not impose sanctions and make a referral to relevant bar authorities for "knowingly mak[ing] a false statement of … law to a tribunal or fail[ing] to correct a false statement of … law previously made to the tribunal by the lawyer":

On July 11, 2025, Plaintiffs filed a motion to compel various Defendants, including Defendant Meggs, to respond to discovery requests and respond to initial disclosures. Ms. Stewart [Meggs' lawyer] filed an opposition brief on behalf of Mr. Meggs ("Opposition"). The Opposition is rife with fabricated citations to this District Court's Local Civil Rules, such as: "Civil Procedure Rule 104 (7)-(8)," "local Rule 104," "D.D.C. local Rule 104(7)," "D.D.C. Rule 8(a)," "Court's Rule 8(a)," and "L.R. 104.8." Id. at 1, 5–7. These rules do not exist. The Opposition also includes fabricated block quotations purporting to recite the text of "D.D.C. local Rule 104(7)" and "D.D.C. Rule 8(a)."

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Free Speech

"Viewpoint Diversity" Requirements as a New Fairness Doctrine: Conclusion

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I have an article titled "Viewpoint Diversity" Requirements as a New Fairness Doctrine forthcoming in several months in the George Mason Law Review, and I've serialized a draft of it here. There is still time to edit it, so I'd love to hear people's feedback. The material below omits the footnotes (except a few that I've moved into text, marked with {}s, as I normally do when I move text within quotes); if you want to see the footnotes—or read the whole draft at once—you can read this PDF. Here is my Conclusion.

Conclusion

At many times in American history, the government has sought to promote the spread of ideas in various ways and to remove what it saw as interference with the spread of ideas. Early examples included the post office's lower rates for distributing newspapers and common carrier requirements for telegraph companies. Later, many state governments acted to protect private employees' political activity from retaliation by employers.

Some state and local governments have required private shopping malls to allow leafletters and signature gatherers, or barred landlords or places of public accommodation from excluding people based on their political activity. Federal, state, and local governments also often provide some sort of public funding for election campaigns. The availability of tax exemptions to nonprofit advocacy groups (at least ones that don't engage in electioneering or substantial amounts of lobbying) likewise helps promote "the diversity of association, viewpoint, and enterprise essential to a vigorous, pluralistic society." The candidate equal time rule—"[i]f any licensee shall permit … a legally qualified candidate for any public office to use a broadcasting station, he shall afford equal opportunities to all other such candidates for that office"—survived the death of the Fairness Doctrine.

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Politics

Court Concludes Filings (from >250-Lawyer Firm) Contained AI Hallucinations

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Tovar v. American Automatic Fire Suppression Inc., decided Oct. 3 by San Diego County Superior Court Judge Carolyn M. Caietti, declined to impose sanctions on defendant's lawyers, because the plaintiff hadn't complied with certain procedural rules, but added:

Notwithstanding the denial on procedural grounds, the Court is deeply troubled by the conduct of Defense counsel. Defendants admitted to submitting authority that was miscited, non-existent or inapposite…. "Simply stated, no brief, pleading, motion, or any other paper filed in any court should contain any citations—whether provided by generative AI or any other source—that the attorney responsible for submitting the pleading has not personally read and verified." … [A] party's citation to fabricated legal authorities violate[] "a basic duty counsel owed to his client and the court" ….

One of Defendants' most recent motions contain both citations to cases that do not appear to exist and factual misrepresentations. On July 23, 2025, Defendants filed a motion to compel an independent medical examination of Plaintiff. There is a citation to a case that does not exist and a citation that does not stand for the premise asserted.

In addition, Attorney Woods' supporting declaration contained [non-AI-related] misrepresentations to the Court. [Details omitted. -EV]

Defendants also cite to a Notice of Errata filed in relation to the IME motion as having cured any false citations or misrepresentations. While the Notice of Errata removed citations to two of the cases cited, it more so "corrected" other citations to repealed statutes. It also minimized the citations to "clerical errors" that did not alter the substance of the legal argument presented. A stark contrast to the position taken by Defendants now.

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Politics

Panel on Judicial Clerkships and Internships

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Today I led a panel at the South Texas College of Law Houston about judicial clerkships and internships. I was honored to be joined by three of our former students who clerked at the District Court, Fifth Circuit, and Supreme Court of Texas. I am very proud of our recent clerk placements, including seven students going to the Fifth Circuit, about the same number going to the Supreme Court of Texas, plus a host of students going to the federal district courts.

This video will be of interest to students at all law schools, and should also be of interest to those planning to go to law school--including at South Texas. If any students are applying to South Texas, they are welcome to sit in on my class. Please email me!

 

Free Speech

"Viewpoint Diversity" Requirements as a New Fairness Doctrine: Permissible Options

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I have an article titled "Viewpoint Diversity" Requirements as a New Fairness Doctrine forthcoming in several months in the George Mason Law Review, and I wanted to serialize a draft of it here. There is still time to edit it, so I'd love to hear people's feedback. The material below omits the footnotes (except a few that I've moved into text, marked with {}s, as I normally do when I move text within quotes); if you want to see the footnotes—or read the whole draft at once—you can read this PDF. Earlier posts have largely criticized such viewpoint diversity requirements, by analogy to criticisms of the Fairness Doctrine. Here are two sections discussing possible permissible options related to viewpoint diversity and nondiscrimination, plus the Conclusion.

[IX.] The Permissible Scope of Viewpoint Diversity Mandates: Support for Specific Messages or Programs That the Government Is Promoting

So far, I have argued that viewpoint diversity mandates are inevitably viewpoint-based, and that therefore, the government can't attach them as conditions to general funding aimed at promoting accessibility of universities to students (e.g., student loans) or at funding universities' or faculty members' own research projects.

But of course, when the government is aiming to promote particular messages, it can indeed favor some viewpoints over others. As the Court noted in Rust v. Sullivan,

When Congress established a National Endowment for Democracy to encourage other countries to adopt democratic principles, it was not constitutionally required to fund a program to encourage competing lines of political philosophy such as communism and fascism.

Likewise, Congress is free to provide a grant to the National Endowment for Democracy calling for it to fund pro-democracy programs in a way that supports "viewpoint diversity." That grant condition would presumably require the Endowment to support a wide range of different viewpoints on how best to promote democracy: Perhaps the Endowment would need to make sure that grants go towards projects that promote presidential democracy systems as well as parliamentary ones, towards projects that accept local views on what is democratic enough, or towards projects that call for adopting supposedly universal human rights principles.

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Immigration

US Chamber of Commerce Files Lawsuit Challenging Trump's $100,000 H-1B Visa Fee

This is the second lawsuit challenging the policy, which is both illegal and likely to cause great harm if allowed to stand.

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Yesterday, the US Chamber of Commerce filed a lawsuit challenging Donald Trump's  imposition of a $100,000 fee on applications for H-1B visas, which are used by tech firms, research institutions, and others to hire immigrant workers  with various highly specialized skills. This is the second lawsuit against the H-1B visa fees. The earlier case , Global Nurse Force v. Trump, was filed a coalition of mostly left-leaning litigants, including education groups (e.g. - the American Association of University Professors), religious organizations, and  labor unions. It's not every day that major labor unions find themselves on the same side as America's leading organization representing businesses! But this issue has brought them together.

In a previous post, I outlined reasons why Trump's imposition of the H-1B visa fee goes beyond the statutory authority granted by Congress, and also explained how the administration's interpretation of the law would violate the nondelegation doctrine (which limits delegations of legislative power to the executive). I also summarized why the fee would inflict grave harm on the US economy, as H-1B visa holders disproportionately contribute to innovation and economic growth.

The lawsuit filed by the Chamber makes many of the same types of arguments as the Global Nurse Force plaintiffs. They too, emphasize that Trump lacks statutory authority to impose the fees, and that interpreting the relevant statutes to allow it would go against the "major questions" doctrine, and violate constitutional limits on delegation, especially given that this delegation involves the power to raise revenue. And revenue-raising is, as the Chamber notes,  "a core power reserved for Congress (see, e.g., U.S. Const. art. I § 7, cl. 1; id. § 8, cl. 1), "Congress must indicate clearly its intention to delegate to the Executive the discretionary authority to" impose "'fees' or 'taxes…'"

I think the Chamber should develop the nondelegation argument further, including making the point that Trump's position implies virtually unlimited presidential authority to restrict migration and impose conditions on entry. That violates nondelegation even aside from the revenue angle.

I hope the combination of the Chamber lawsuit and the earlier case will lead to the demise of the $100,000 fee, preferably sooner rather than later. There may be other cases challenging the fee, as well. I will likely have more to say as this litigation continues.

Free Speech

IRS Agents Who Revealed Details About Hunter Biden Investigation Lose Libel Suit Against Biden's Lawyer

The lawyer's claims that plaintiffs had violated federal law were opinions based on disclosed facts, the court concludes.

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An excerpt from the long decision in Shapley v. Lowell by Judge Richard Leon (D.D.C.) filed today:

This case arises from the multi-year criminal investigation into Hunter Biden's tax compliance. Two of the Internal Revenue Service's special agents involved, plaintiffs Gary Shapley and Joseph Ziegler, revealed details about the investigation to Congress and the media due to their concerns that the Department of Justice and the Internal Revenue Service were giving Hunter Biden preferential treatment during the course of the investigation. Plaintiffs filed this suit against one of Hunter Biden's counsel, Abbe Lowell, alleging that he sent defamatory statements to the media that accuse plaintiffs of violating federal law….

For a statement to be "actionable," it must at least express or imply a verifiably false fact about the plaintiffs. … "[W]hen a writer gives a statement of opinion that is based upon true facts that are revealed to readers … such opinions generally are not actionable so long as the opinion does not otherwise imply unstated defamatory fact." …

Starting with context, the documents in which the challenged statements appear, and the circumstances of their alleged publication, cut against these statements being actionable. The statements are not isolated accusations of wrongdoing, as presented in the Complaint, but rather reasoned—albeit aggressive—positions that Biden's attorneys took in the course of representing and advocating for their client. During a criminal investigation of then-sitting President Joe Biden's son, Government agents disclosed details about the investigation to Congress and the media. Biden's defense attorneys wrote letters to Government officials in an attempt to stop more information about their client from becoming public. The challenged statements are contained in these letters.

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AI in Court

Repeated "Nonexistent Cases" in Filing From >20-Lawyer Insurance Defense Firm

Lawyers at firms of all size, don't let this happen to you.

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From today's decision in Gittemeier v. Liberty Mutual Pers. Ins. Co. (E.D. Mo.):

Gittemeier posits that Liberty Mutual again miscited cases in its filing and referenced at least one non-existent citation, despite the Court's warning in the previous order to verify its sources before submitting future filings. Gittemeier points out that the Goodman case was again miscited in Liberty Mutual's filing after it had been miscited in the initial summary judgment memorandum. Moreover, Gittemeier asserts that the quoted section from 30 Mo. Prac., Insurance Law & Practice is not found in the cited section or in the nearby sections….

Liberty Mutual's erroneous citations constitute a serious oversight warranting consideration of sanctions pursuant to Rule 11. After Liberty Mutual cited two nonexistent cases in its initial motion for summary judgment, the Court urged "Liberty Mutual to verify its sources before submitting future filings with the Court" and indicated that this warning would be provided only once. Yet somehow, in its memorandum in support of its second motion for summary judgment, Liberty Mutual not only cited two nonexistent cases again (Goodman was miscited previously as well), but also misquoted or mischaracterized multiple cases, including Dhyne, Goodman, and Chaudri. {Liberty Mutual cited Goodman v. Liberty Mut. Fire Ins. Co., 2022 WL 4534416, at *6-7 (E.D. Mo. Sept. 28, 2022) and Chaudhri v State Auto Prop. & Cas. Ins. Co., 2022 WL 4596697 (E.D. Mo. Sept 30, 2022). These cases do not exist.} Furthermore, Liberty Mutual falsely suggested that 30 Mo. Prac., Insurance Law & Practice §§ 4:2, 4:8, and 4:9 contains comments regarding cooperation clauses and EUO [examination under oath] requirements.

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Free Speech

Everything Old Is New Again, Part MDCCCXI: The "Wire Service Defense" Before Wire Services

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American libel law has long recognized the "wire service defense"; to quote Layne v. Tribune Co. (Fla. 1933),

The mere reiteration in a daily newspaper, of an actually false, but apparently authentic news dispatch, received by a newspaper publisher from a generally recognized reliable source of daily news, such as some reputable news service agency engaged in collecting and reporting the news, cannot through publication alone be deemed per se to amount to an actionable libel by indorsement, in the absence of some showing from the nature of the article published, or otherwise, that the publisher must have acted in a negligent, reckless careless manner in reproducing it to another's injury.

The defense often arose when a newspaper publisher reprinted stories from wire services (such as the Associated Press), but also applied to reprinting from other "generally recognized reliable source[s] of daily news," such as other newspapers.

It turns out, though, that this issue had arisen long before, and ended up actually being decided in a little-known 1811 case. (It's not on Westlaw, and has been cited only once in law journals, in an article that I wrote in 2010.) The case, excerpted below, is Binns v. M'Corkle, 2 Browne Pa. Rep. 79 (Dist. Ct. 1811) (Hemphill, J.); note the suggestion near the end that "if [a publisher] should quote from a distant and respectable paper, the name and description of a person, said to have absconded on account of the commission of a crime," "the republication might arise from motives of public good" and thus be privileged:

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Academic Freedom

Against Trump's New Higher Education "Compact"

A joint statement and a solo analysis of the Compact's problems

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The Trump administration recently announced a new "Compact for Academic Excellence in Higher Education." The "deal" was initially offered to nine universities, and of those MIT and Brown have already said no. The administration is now rolling out the offer to more universities. Only a fool would take this deal.

The Compact marks a new tactic in the administration's effort to massively transform American higher education. The substantive demands remain much the same as the administration has pushed before, and it continues to rely on threats to financial vulnerabilities of universities. Now the administration promises not only to withhold federal grants from dissenting universities, but to strip them of nonprofit tax status, deny them access to international students, and prevent their students from receiving federal loans. Universities that "voluntarily" agree to the Compact will put themselves under permanent oversight of the Department of Justice, which will be empowered unilaterally to declare them noncompliant at any time and impose devastating financial penalties. It is an extraordinary bid to put essentially every university under the control of the federal executive branch. The Trump administration does not lack for boldness.

The Joint Statement

I have joined a group of five other scholars in a statement urging universities to reject this deal. The signatories are a politically diverse group known for their writing and work on free speech issues relating to American universities. They include Robert George (Princeton), Jeannie Suk Gersen (Harvard), Tom Ginsburg (Chicago), Robert Post (Yale), David Rabban (Texas), and Keith Whittington (Yale). We all speak on this in our individual capacities, but it is worth noting that two of the signatories were former leaders of the American Association of the University Professors and four are in the leadership of the Academic Freedom Alliance.

The joint statement can be found here.

From the conclusion of the statement:

Much has been gained, and much more is to be gained, by a partnership between the federal government and universities as institutions of teaching and research. Both partners need to behave responsibly. On the one side, universities must strictly comply with reasonable grant conditions, including non-discrimination requirements and civil rights laws. On the other side, governments must strictly respect the legitimate autonomy of universities and the academic freedom of their faculty and students.

Read the whole thing.

The Solo Analysis

Separately, I have my own analysis of the Compact at The Dispatch. This piece reviews the several components of the Compact, the mechanisms of enforcement, the radical changes it would make to how higher education has worked for decades in the United States, its willingness to cast aside existing legislative commitments and requirements, and the threat it poses to anything like academic freedom or independent civil institutions in the future. It is rife with unconstitutional conditions on First Amendment-protected speech but seeks to avoid any judicial scrutiny of those constitutional violations by forcing universities into a "voluntary" agreement with the federal executive branch.

From the conclusion of the piece:

There are real problems on college campuses, and the compact at least gestures toward some of those problems. Gesturing toward real problems does not make good policy, however. The compact is vague in its demands, but extraordinary in the amount of control that it wants to claim over the academic, intellectual, and political life of private and public universities. It effectively conditions the continued existence of universities on their ability to satisfy the current policy and political preferences of whomever occupies the White House at any given moment. This is not only incompatible with the existing law and Constitution; it is incompatible with any liberal conception of civil society. Universities are extremely resistant to needed reforms, and some would argue that a sledgehammer is needed to get them to see the light. Well, this is certainly a sledgehammer. If the hammer drops or opens the door to more such demands by this or future administrations, it will be an unmitigated disaster for American higher education.

Read the whole thing here.

As I write there, the Compact is a "sucker's deal." Worse yet, there is no reason to believe that the administration is a good faith partner in any such agreement, and its own terms leave the administration with essentially unfettered discretion to demand more down the road. We have seen this movie before. "I am altering the deal; pray I do not alter it any further."

Free Speech

"Viewpoint Diversity" Requirements as a New Fairness Doctrine: Tool for Goverment Control, and Magnitude of Bias

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I have an article titled "Viewpoint Diversity" Requirements as a New Fairness Doctrine forthcoming in several months in the George Mason Law Review, and I wanted to serialize a draft of it here. There is still time to edit it, so I'd love to hear people's feedback. The material below omits the footnotes (except a few that I've moved into text, marked with {}s, as I normally do when I move text within quotes); if you want to see the footnotes—or read the whole draft at once—you can read this PDF. You can see my argument about why viewpoint diversity requirements are likely to chill controversial faculty speech here. Here is a follow-up section on why such requirements are likely to also be a dangerous tool for government control, and a section discussing the argument that they are nonetheless necessary because of the magnitude of bias within the academy.

[VII.] Tool for Government Control

So far, we have discussed the likely viewpoint-based chilling effect of viewpoint diversity rules and their likely viewpoint-based implementation by government officials—much as with the Fairness Doctrine—even when the officials are acting in perfect good faith. Even officials who are trying hard to be fair-minded and open-minded will have to choose between viewpoints that need to be represented and those that need to be omitted.

But of course, human nature being what it is, some officials won't be so fair-minded and open-minded. That too was one of the objections raised to the Fairness Doctrine: "[T]he fairness doctrine provides a dangerous vehicle—which had been exercised in the past by unscrupulous officials—for the intimidation of broadcasters who criticize governmental policy." And this too is likely to play out with regard to viewpoint diversity mandates, especially in light of "the inherently subjective evaluation of program content" that viewpoint diversity mandates are likely to involve.

Say that some prominent faculty members in a university department speak out against some federal government policy. It would be easy for the government to respond by calling for a viewpoint diversity audit of the department. "Where," the government might ask, "are the members of the department who support the challenged government policy?"

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Free Speech

Let's Go Brandon!—to the Principal's Office

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From Sixth Circuit Judge John Nalbandian, joined by Judge Karen Nelson Moore, in yesterday's B.A. v. Tri County Area Schools:

Two middle schoolers in Michigan wore sweatshirts emblazoned with the phrase "Let's Go Brandon" to school. Based on the commonly understood meaning of the slogan, the school administrators determined that the sweatshirts were inappropriate for the school environment. They asked the students to remove the sweatshirts, and fearing punishment, the students complied. But they still wanted to wear the sweatshirts at school to express their disapproval of then-President Joe Biden's administration and its policies. So, through their mother, the students sued the school district and several school administrators, alleging that the school deprived them of their First Amendment rights. The district court sided with the school district, concluding that the school could reasonably prohibit the sweatshirts since they were vulgar speech. Because the school reasonably understood the slogan "Let's Go Brandon" to be vulgar, we affirm….

[S]tudents do not "shed their constitutional rights to freedom of speech or expression at the schoolhouse gate." Tinker v. Des Moines Indep. Cmty. Sch. Dist. (1969). But those retained rights "are not automatically coextensive with the rights of adults in other settings." Bethel Sch. Dist. No. 403 v. Fraser (1986). Under Tinker, schools can generally forbid or punish student speech that causes a "substantial disruption of or material interference with school activities." But the Supreme Court has recognized several exceptions to Tinker's standard. On school grounds, a school may generally prohibit (1) indecent, lewd, and vulgar speech [as in Fraser]; (2) speech that promotes illegal drug use; and (3) speech that others may reasonably perceive as bearing the imprimatur of the school. Without one of these exceptions, the Tinker standard applies and the school has the burden of showing that it reasonably believes its regulation of student speech will prevent substantial and material interference with school functions.

This case is about the vulgarity exception. And specifically, how a school may regulate political speech without vulgar words that the school nonetheless reasonably understands as having a vulgar message. To answer that, we must resolve two preliminary questions. The first is linguistic, asking whether a phrase that lacks explicitly profane words might still have a vulgar meaning. The second is doctrinal, asking whether a school administrator may prohibit student political speech that has a vulgar message. The district court answered yes to both and so held that the plaintiffs hadn't suffered any constitutional deprivation because the school administrators' actions comported with the First Amendment. For the reasons given below, we agree….

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Boerne, RFRA, and the VRA

Several justices seem ready to import the congruence and proportionality test to the 15th Amendment.

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I just finished listening to the oral argument in Callais. There are almost certainly six votes to rule in favor of Louisiana here. Justice Kavanaugh came to the argument extremely well-prepared, and seems to have mapped out all of the contours of an opinion. It seemed like he was reading from notes, and articulating different standards that could apply. He quibbled a bit with the Deputy SG's phrasing, but I think he is generally comfortable with the government's framing of the case. Chief Justice Roberts was quiet, and (as best as I can recall) only asked whether certain issues were raised in the Alabama litigation a few year ago.  The Chief should assign the majority to Justice Kavanaugh, but will probably keep it himself. Justice Barrett was also working out some of the finer nuanced doctrines of the Enforcement Power analysis. She will probably write a concurrence along those lines.

There is much to discuss, but here I want to focus on a broader question of constitutional law.

Section 5 of the Fourteenth Amendment gives Congress the power to enact "appropriate legislation" to enforce the rest of the Fourteenth Amendment. City of Boerne v. Flores Court held that there are limits to Congress's power to remedy a violation of Section 1 (such as the Due Process or Equal Protection Clauses). Specifically, the remedy must be "congruent and proportional" to the constitutional violation.

The Supreme Court has never addressed whether the "congruence and proportionality" test also applies to Section 2 of the Fifteenth Amendment. I wrote about this way back in 2013 after Shelby County.

Today, several justices seemed to suggest that the Boerne test would limit Congress's powers under the Fifteenth Amendment. At one point, Justice Barrett asked counsel for petitioners to "assume" the Boerne test applied to the Fifteenth Amendment. In past cases, when Justice Barrett asks lawyers to assume something, that almost certainly means that is her position. Indeed, given Justice Barrett's unwillingness to reverse Smith, I think she will have to go all-in on Boerne.

If the Court does adopt the Boerne test, then the VRA inquiry changes. It is not disputed that the Fifteenth Amendment, like the Fourteenth Amendment, prohibits intentional discrimination. But Section 2 of the VRA (not to be confused with Section 2 of the Fifteenth Amendment) is an "effects" based test, that does not require any showing of intentionality.

Perhaps at some point in the past, Section 2 was a "congruent and proportional" response to the state of voting rights in the United States. Maybe that was even true when Gingles v. Thornburg was decided in 1986. But times have changed. Is there still a "congruence and proportionality" in 2025? I think it is worth noting that Gingles was decided a decade before Boerne. Then again, Boerne contrasted RFRA with the VRA, which had been upheld in Katzenbach.

The application of Borne to the VRA may give the Court a hook to "sunset" that provision, and rule that forcing the states to consider race when drawing maps may no longer be appropriate. Grutter gave the use of race a 25-year sunset clock. Gingles has had an even longer run.

Justice Barrett suggested that Gingles does not need to be "modified" but instead might be "clarified." The Court did just that with another Burger Court precedent. In Groff v. DeJoy (2023), the Court completely rewrote how TWA v. Hardison had been interpreted on the ground for five decades. And that was done to save the precedent from being overruled. Gingles may meet a similar fate. And yet another Burger Court precedent will bite the dust. (In fairness to co-blogger Paul Cassell, CJ Burger only concurred in the judgment in Gingles, which was decided during his final week on the Court.)

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