The Volokh Conspiracy

Today is a day unlike any other than I can remember.

At 10:00 a.m., the Supreme Court heard oral argument in Trump v. Barbara. In this case, the Trump Administration asked the Supreme Court to rule that the Fourteenth Amendment does not grant birthright citizenship to the children of illegal aliens. Many scholars, including myself, had thought this issue had been settled for more than 150 years. But over the past year, there has been an explosion of scholarship that has presented arguments on both sides of the case. I have concluded that this issue is much closer than when I first studied it, but on balance, I think the plaintiffs have the stronger argument.

In another first, President Trump attended the oral argument. This is apparently the first time a sitting President has attended a Supreme Court case--especially one about him. President Nixon wanted to argue the Pentagon Papers case, but decided against it. Here is how Randy and I described the exchange in our 100 Cases book:

On June 23, a circuit split formed. The Second Circuit Court of Appeals, based in New York, enjoined the Times from publishing certain materials that could harm national security. But the D.C. Circuit Court of Appeals ruled for the Washington Post. On June 24, the parties filed appeals in the Supreme Court. In the Oval Office, President Nixon said, "I ought to argue that case before the Supreme Court, if it gets there." He joked that Justice "Black and the rest of them would take out after me like gangbusters, and I'd knock their goddamn brains out." On June 25, the Justices agreed to hear the case, and scheduled oral argument for June 26. Nixon would not argue the case.

According to the New York Times, Trump left after Solicitor General Sauer finished his argument. I suspect he was not pleased--in particular with the questions posed by Justices Gorsuch and Barrett. Though if Trump had stuck around, the President might have seen some tough questions posed for Cecilia Wang, counsel for the ACLU.

Today, around 6:30 p.m., the Artemis mission is scheduled to blast off for the moon.

Tonight, around 8:00 p.m., President Trump will give a primetime address on the conflict in Iran. Will he announce a ceasefire or an escalation? Tune in to find out.

What a remarkable day. As is my practice, I no longer write April Fool's Day posts.

As I write, Solicitor General has just concluded his arguments in Trump v. Barbara, the birthright citizenship case. I will avoid making any firm predictions until the case is concluded, but things do not look good for the government here.

In the meantime, I wanted to flag a question Justice Gorsuch asked. He flagged Justice John Marshall Harlan's lecture notes on Wong Kim Ark. I didn't realize that the ACLU had cited the article on Harlan's lectures that I co-authored with Brian Frye and Michael Michael McCloskey in 2013. Here is the excerpt from the brief:

Indeed, the Wong Kim Ark dissenters recognized that the majority had rejected any domicile requirement under the Clause. 169 U.S. at 705-06 (Fuller, C.J., dissenting). Chief Justice Fuller noted that under the Court's ruling, "the children of foreigners, happening to be born to them while passing through the country," are natural-born citizens. Id. at 715 (emphasis added). Justice Harlan, who joined the dissent, put the point more concretely in a subsequent lecture:

Suppose an English father and mother went down to Hot Springs to get rid of the gout, or rheumatism, and while he is there, there is a child born. Now, he goes back to England. Is that child a citizen of the United States, born to the jurisdiction thereof, by the mere accident of his birth?

Justice John Marshall Harlan: Lectures on Constitutional Law, 1897-98, Lecture 27 (May 7, 1898), in 81 Geo. Wash. L. Rev. Arguendo 12, 344 (Brian L. Frye et al., eds., 2013) (footnote omitted). Justice Harlan thought the answer should be no, but he recognized that the majority disagreed, explaining: "I was one of the minority, and of course I was wrong." Id.

I don't have the transcript yet, but Gorsuch seems to have quoted that line, directly. Justice Harlan would often joke that he was in the "minority."

Presumably, Harlan was referring to Hot Springs, Bath County, Virginia, a spa resort renowned for the curative powers of its hot springs, especially in relation to rheumatism and gout.

Here is the full passage from the article:

We had an illustration of the application of this amendment in the present term of our court. It was the case about the Chinese subject, to which I had called your attention heretofore.665 It was the case of the Chinaman born in San Francisco, twenty-odd years ago, of Chinese parents. Father and mother were living in San Francisco, the father engaged in business there, but they were subjects of the Emperor of China. And this boy was born to them in San Francisco. And the question was whether or not this Chinaman, the son of Chinese parents—residing in the United States, but nevertheless subjects of the Emperor of China—was a citizen of the United States, by reason of the fact that he was born there. The question turns upon two or three words of this amendment: "All persons born in the United States." Well, he was born here. But now come the words, "and subject to the jurisdiction thereof." Now, if that boy was within the meaning of that clause, "subject to the jurisdiction" of the United States, then he became a citizen of the United States, and of the state wherein he resided. The majority of the Court held that he was. The minority held that he was not born to the jurisdiction of the United States, as to this Constitution. He was not born subject to the political jurisdiction of the United States. Of course, he owed allegiance to our laws, as every man who comes here, but he was not born under the jurisdiction of the United States, within the meaning of this article of the Constitution. I was one of the minority, and of course I was wrong.666 Suppose an English father and mother went down to Hot Springs to get rid of the gout, or rheumatism, and while he is there, there is a child born.667 Now, he goes back to England. Is that child a citizen of the United States, born to the jurisdiction thereof, by the mere accident of his birth? My belief was never intended to embrace everybody in our citizenship if he was the child of parents who cannot under the law become naturalized in the United States. I was unable to believe that when the boy's parents could not become citizens of the United States, that it was possible for him to become a citizen of the United States. One of the results of the opposite view is that when that man goes back to China, and the Emperor should conclude to cut his head off—a custom which prevails to a very great extent among these people—we would have to prevent it. And if we could not do this, make him pay for it afterwards. Or, if they impress him into the Chinese army, we would have to protect him. Of course, I am wrong, because only the Chief Justice and myself held these views, and as the majority decided the other way, we must believe that we were wrong.

Frye, McCloskey, and I published another article analyzing the lecture notes. Here is how we described the lecture:

One of Harlan's most passionate lectures was his discussion of United States v. Wong Kim Ark329 on March 19, 1898.330 In Wong Kim Ark, the Supreme Court considered whether birth in the United States was sufficient to grant United States citizenship to a person of Chinese descent.331 The Court, in a 6–2 decision by Justice Gray, held that Wong Kim Ark, who was born in the United States to Chinese citizens, acquired American citizenship at birth by the principle of jus soli.332 Chief Justice Fuller, joined by Justice Harlan, dissented, arguing for the principle of jus sanguinis, under which a child inherits citizenship from his or her father, regardless of birthplace.333 Wong Kim Ark was argued on March 5 and 8, 1897.334 When Harlan discussed it in class on March 19, 1898, he expressed views closely reflecting the dissent he eventually joined.335 Harlan argued that Chinese-Americans could not be assimilated into the American populace, and thus were not entitled to birthright citizenship under the Fourteenth Amendment.336 The case would be decided nine days later on March 28, 1898, after which Harlan explained how he reconciled his views with those of the majority.337 This discussion illuminates Harlan's chimerical views on race, and juxtaposes his enlightened dissents in Plessy v. Ferguson338 and the Civil Rights Cases339 with his xenophobic views in Wong Kim Ark.

Josh Blackman, Brian Frye and Michael McCloskey, John Marshall Harlan: Professor of Law, 81 George Washington Law Review 1063 (2013).

Gorsuch returned to the Harlan line during Respondent's time. Cecilia Wang referenced Justice Harlan's lectures in Washington, D.C.

I undertook the project of transcribing the notes back in 2008. I was a third-year law student in Ross Davies's legal history class. In 2013, when I co-authored this article, I could not have fathomed that Wong Kim Ark might be a live issue before the Supreme Court, but here we are. I always marvel how scholarship drafted behind the veil of ignorance proves useful in controversies that were unimaginable.

In 2009, I launched FantasySCOTUS. At the time, the idea was novel: a league where people could predict the outcome of Supreme Court cases. I soon realized I had the makings of a nascent prediction market. We began to aggregate the votes and offer expert predictions on all of the pending cases before the Court. The best players would predict up to 85% of the cases accurately. By 2014, I partnered with colleagues to develop a machine learning algorithm that would predict Supreme Court cases. We called it {Marshall+}. At its peak circa 2016, the algorithm was nearly as accurate as our best users--approximately 70% accurate.

Admittedly, over time, interest in FantasySCOTUS has faded. I chalk it up to a few factors. First, the Supreme Court has become more predictable. With the new appointees, fewer votes are up for grabs in most cases. I think the novelty of predicting outcomes has somewhat worn off. Instead, the focus is not on affirm/reverse, but how the Court rules. Second, coding each case for our algorithm proved to be too time-consuming. The juice was no longer worth the squeeze. Third, AI has completely obliterated all of our work. It is now possible to ask an AI agent to predict a case, and that work will be far more accurate than what our algorithm might have generated with hours of preparation. I maintain FantasySCOTUS at this point mostly as a novelty. There are a dedicated group of players who still make predictions, and I am thankful for their commitment. But I doubt this league will ever return to its heyday.

In the early days, I was often asked if the Supreme Court Justices would check FantasySCOTUS. I had no way of knowing, but I would joke with reporters that Justice Kennedy might check the league to see which way to vote.

Now, it seems, things have come full circle.

On Monday, the Supreme Court heard oral argument in Jules v. Andre Balazs Properties. The question presented concerns arbitration. I won't even pretend to understand the facts. Rather, I was intrigued by a single question asked.

Adam Unikowsky represented the Petitioners. Adam has made headlines of late for his work on AI. His most ambitious project employed Claude to automate a Supreme Court oral argument. You should listen to it. It sounds really real. And, it seems, the Justices are aware of Adam's efforts.

During the seriatim round, Justice Alito asked Adam:

JUSTICE ALITO: Well, just out of curiosity, do you think we should ask Claude to decide this case?

The transcript notes there was "laughter." I heard the distinct and prolonged laughs of Justices Kagan and Barrett. There may have been others.

Adam swiftly replied:

MR. UNIKOWSKY: No. I --I adhere to the wise judgment of --of this Court.

I think the effect of this joke is that lawyers will now be afraid to even suggest they use AI. But it seems clear that many lawyers are using AI to generate questions that may be posed at oral argument--though they may not admit it. I give Adam credit for being transparent with his methods. Though, Adam may have gotten burned.

For whatever it is worth, Professor Scott Dodson asked Claude to generate a opinion in the case in the style of Justice Kagan.

Two months ago, Chief Justice Roberts began the Court's opinion in Bost v. Illinois State Board of Elections this way:

Under Article III of the Constitution, plaintiffs must have a "personal stake" in a case to have standing to sue. FDA v. Alliance for Hippocratic Medicine, 602 U.S. 367, 379, 144 S.Ct. 1540, 219 L.Ed.2d 121 (2024). They must, in other words, be able to answer a basic question: " 'What's it to you?' " A. Scalia, The Doctrine of Standing as an Essential Element of the Separation of Powers, 17 Suffolk U. L. Rev. 881, 882 (1983)

These sentences should be enough to reverse Judge Leon's injunction blocking the construction of the new East Wing ballroom.

I'm sure you've seen many press stories about today's opinion, but have you actually read the standing analysis? In an earlier ruling, the court relied on a purported aesthetic injury.

A member of the National Trust regularly walks near the White House, and enjoys the beauty of the architecture. But she doesn't like the new design. This distress, she claims, gives her Article III standing to challenge the construction at the White House. She has no monetary interest. Rather, she simply doesn't like how the structure appears.

Hoagland intends to continue visiting President's Park roughly once a month. Id. at 12. She asserts that construction of a ballroom of the form and scale proposed by the President would disrupt her enjoyment and use of President's Park and cause her to "suffer both professional and personal injuries, including to [her] aesthetic, cultural, and historical interests." Id. at 13-14. The President's proposed ballroom would, in Hoagland's words, "overshadow[]" the White House and "diminish [its] primacy," thereby disrupting the message that "our president lives in a house." Id. at 13. Based on her claims of aesthetic injury, Hoagland could sue in her own right. It is well-settled that the "desire to use or observe" something, "even for purely [a]esthetic purposes, is undeniably a cognizable interest for purpose of standing." Lujan, 504 U.S. at 562-63.

The plaintiff is distressed by what she might have to see. To use Justice Gorsuch's phrasing, Hogland is an "offended observer." Here is how Gorsuch described the doctrine in American Legion:

"If individuals and groups could invoke the authority of a federal court to forbid what they dislike for no more reason than they dislike it, . . . [c]ourts would start to look more like legislatures, responding to social pressures rather than remedying concrete harms . . . ."

I am very familiar with the aesthetic injury claim. It was raised in the Mifepristone litigation. Judge Ho expressly invoked it in his concurrence.

In addition to the injuries analyzed by the majority, Plaintiffs have demonstrated another basis for Article III standing: the aesthetic injury they experience in the course of their work. See, e.g., Sierra Club v. Morton, 405 U.S. 727, 734-35, 92 S.Ct. 1361, 31 L.Ed.2d 636 (1972) (recognizing aesthetic harm as "injury to a cognizable interest"); Lujan v. Defs. of Wildlife, 504 U.S. 555, 562-63, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992) ("[T]he desire to use or observe an animal species, even for purely esthetic purposes, is undeniably a cognizable interest for purpose of standing."); id. at 566, 112 S.Ct. 2130 ("[T]he person who observes or works with a particular animal threatened by a federal decision is facing perceptible harm."). It's well established that, if a plaintiff has "concrete plans" to visit an animal's habitat and view that animal, that plaintiff suffers aesthetic injury when an agency has approved a project that threatens the animal. See Lujan, 504 U.S. at 564, 112 S.Ct. 2130. . . .

Unborn babies are a source of profound joy for those who view them. Expectant parents eagerly share ultrasound photos with loved ones. Friends and family cheer at the sight of an unborn child. Doctors delight in working with their unborn patients—and experience an aesthetic injury when they are aborted.

Plaintiffs' declarations illustrate that they experience aesthetic injury from the destruction of unborn life.

In short, if naturalists can claim an aesthetic injury to see plants and animals, then pro-life doctors could claim a similar injury with regard to newborn babies.

On appeal, the Supreme Court could have considered AHM's "aesthetic" standing argument raised in Judge Ho's concurrence. But Justice Kavanaugh did not. The ground for standing was not even mentioned. Indeed, I think the Court chipped away at "offended observer" standing in Footnote 3:

The doctors also suggest that they are distressed by others' use of mifepristone and by emergency abortions. It is not clear that this alleged injury is distinct from the alleged conscience injury. But even if it is, this Court has long made clear that distress at or disagreement with the activities of others is not a basis under Article III for a plaintiff to bring a federal lawsuit challenging the legality of a government regulation allowing those activities. See, e.g., Valley Forge Christian College v. Americans United for Separation of Church and State, Inc., 454 U. S. 464, 473, 485–486 (1982); United States v. Richardson, 418 U. S. 166, 175 (1974); Sierra Club v. Morton, 405 U. S. 727, 739 (1972).

What is the relationship between Mifepristone and the Ballroom? Are we to believe that an astute art critic can claim an "aesthetic" injury for staring at slabs of marble but a doctor cannot claim an "aesthetic" injury for seeing the miracle of life? This would be yet another asymmetry in standing. Offended liberals can always get to federal court but conservatives cannot.

I do not see how a claim for "aesthetic injury" is consistent with the Court's recent standing cases--especially when the claim is based on subjective architectural sensibilities. To borrow from The Fountainhead, we can call this doctrine "Ellsworth Toohey" standing.

From Doe v. Life Time, Inc., decided today (correctly, I think) by Judge Dora Irizarry (E.D.N.Y.):

The Complaint alleges that Plaintiff attended Life Time Fitness from 2018 to 2024, and in 2023 his local gym hired Defendant Ahmed to "man the front desk in the evenings." Ahmed is alleged to be a member of the Muslim faith who "flaunts his religion." The Complaint alleges that, as an employee, Ahmed discriminated against Jewish members, such as Plaintiff [in violation of federal and state antidiscrimination law], by prohibiting Plaintiff from entering the gym after 8:00 PM on weekends, while allowing members of the Muslim faith to enter.

Plaintiff recounts a specific encounter on October 26, 2024, in which Plaintiff arrived with a guest wearing a yarmulke (a small round head covering worn by male practitioners of the Orthodox Jewish faith) and requested late entry. Ahmed is alleged to have denied entry and then admitted to selectively enforcing policies when pressed by Plaintiff. The situation escalated and Plaintiff's membership to the gym was suspended. Plaintiff alleges that his membership was reinstated the next day; however, on December 14, 2024, three Life Time employees, including Ahmed, assaulted him in the gym locker room.

Plaintiff attests that he raised Ahmed's discriminatory actions to his gym's general manager, but nothing was ever done. After lodging a number of complaints, Plaintiff alleges that the general manager banned him from the gym. Plaintiff further alleges he never was given a reason from Life Time as to why he was banned….

Read More

On the eve of the birthright citizenship case, it is useful to think back to last year. The Trump Administration could have rushed the merits to the Supreme Court, but instead only sought certiorari in the nationwide injunction issue. And to win that case, the executive branch sacrificed its own power. The Solicitor General said it would bind itself to the decisions of the Supreme Court. No decision, not Marbury, not Cooper v. Aaron, ever stipulated that point. Now a coordinate branch of government surrendered. And to what end? Was CASA such an important case that justified that unilateral disarmament?

I think the answer is no. In the year since CASA, there have been a never-ending spate of universal vacaturs against the executive branch. District Courts have certified classes on the fly. And the Supreme Court has shown no interest in clamping down this practice. And if, as expected, the Supreme Court strikes down the birthright citizenship order, all of this litigation will have been for naught. The executive branch is weaker because of this order. What was gained?

On the other side, the doomsday predictions from CASA simply have not come to fruition. Richard Re brings the receipts:

First, the CASA dissenters repeatedly suggested that relief would be practically unavailable, at least for many affected individuals, if universal relief were disallowed. . . . As it happened, the EO was swiftly enjoined and so has yet to go into effect. Moreover, that outcome was not only foreseeable but foreseen by at least some justices and commentators. . . .

Second, the CASA dissenters, especially Justice Kagan at oral argument, worried that the merits of the birthright citizenship EO would never reach the Supreme Court. . . . To some degree, this second worry was parasitic on the first one, for a lack of SCOTUS review might not be a problem if the relevant executive action were still expeditiously enjoined via class action. At any rate, the oral argument resulted in a promise from the SG that he would in fact seek certiorari on the merits, and that is of course what happened. . . .

In CASA, the dissenters raised concerns that were unusually immediate and specific. Perhaps they left enough wiggle room for plausible deniability. But to the extent that the dissenters made testable claims, those claims have not been borne out. The dissenters' doomsaying, in other words, can be viewed as both falsifiable and falsified. One might remember this example when considering other assertions in dissenting opinions.

CASA was so important last year. This year, it barely matters. Yet another instance where it is difficult to know in the moment what Supreme Court rulings will have any resonance in the longterm.

I give a lot of thought to timing on the Supreme Court. Internal deliberations are usually a black box, unless there are some leaks. All we know for sure is when a case is argued and when it is decided.

Today, the Court decided Chiles v. Salazar. This case was argued six months ago on October 7. The vote was 8-1. Justice Gorsuch wrote the majority opinion, which was about twenty-pages long. Justice Kagan wrote a short concurrence, joined by Justice Sotomayor, that was about four pages long. Justice Jackson wrote a solo dissent that spanned more than thirty pages.

Why did this case take six months? It seems pretty clear the majority opinion coalesced fairly early on. There is not much daylight between the majority and the concurrence. I have to imagine that Justice Gorsuch circulated his majority opinion fairly quickly. There are no footnotes suggesting attempts to modify or water-down the majority opinion.

What we don't know is how Justice Jackson affected the process. The majority opinion offers a few citations to Jackson's dissent, but there is no lengthy back-and-forth. I don't think there was much engagement here at all. Indeed, it is telling that Justice Kagan felt compelled to respond to Justice Jackson in a footnote.

This opinion also makes me think about Callais, which was argued on October 15. I doubt that case will be 8-1. But it may take around the same time, if not longer.

For those who care about such things, Justice Alito is the only Justice who has not yet written a majority opinion from October.