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Supreme Court

David Cole's Qualified Defense of the Supreme Court

The prominent liberal legal scholar and former ACLU leader outlines how the Court has often checked Trump, but also critiques it for going against precedent.

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US Supreme Court
The Supreme Court Justices (2023). (Pool/ABACA/Newscom)

 

Debate over the Supreme Court's performance in recent years has become highly polarized. So it's worth noting that prominent left-liberal Georgetown law professor  David Cole recently published a qualified defense of the Supreme Court's recent rulings in the New York Review. He emphasizes their crucial role in constraining abuses of power by Trump. Cole is also the former National Director of the ACLU, and thus - to understate the point - not a natural ally of the Court's conservative majority. As we shall see, he's far from an unqualified fan of their recent performance, and still takes them to task on some points. But the more positive aspect of his appraisal is still notable:

Can we rely on the courts, and most importantly the Supreme Court, to resist major assaults on the rule of law by the Trump administration? That question was front and center during the Court's recently concluded 2025–2026 term. With its six Republican appointees—three nominated by Trump—some feared that, much like the Republican-controlled Congress, the Court would reflexively back the president….

By the end of the term, however, the story was more nuanced. The Court blocked four of Trump's major initiatives: ending birthright citizenship, imposing worldwide tariffs, firing Federal Reserve governor Lisa Cook, and dispatching National Guard troops to Chicago, Portland, and other cities. In other significant cases as well, the Court rejected positions advanced by Trump. In a decision that he called "a tremendous loss," it held that federal law permits the counting of mail-in ballots posted by election day but received thereafter. And it refuted the Trump administration's assertion of constitutionally unchecked power to demand that Google turn over the cell phone location histories of unlimited numbers of Americans. The justices may not be, as Trump called them after he lost the tariffs case, "fools and lapdogs for the RINOs and the radical left Democrats," but this is not Donald Trump's Court….

These are not the decisions of a Court doing the president's bidding or voting exclusively along party lines. By contrast, had these issues been put to a vote in Congress, would a single Republican have broken ranks?

The rulings cannot be dismissed as mere token losses for Trump. Each one established important guardrails on the executive branch. The tariffs decision rejected the president's assertion of emergency powers, a step courts rarely take. Justice Samuel Alito called the birthright citizenship case "one of the most important decisions in the history of the Court." The decision blocking the firing of Cook protected the independence of the Federal Reserve, the nation's most powerful financial institution. And the National Guard decision kept troops off our streets, halting Trump's invocation of a classic authoritarian move.

Some argue that all these cases that went against Trump were so easy and clearcut that the Court deserves little or no credit for them. Cole disagrees:

Nor can the decisions be discounted on the ground that no reasonable judge could rule in Trump's favor. They all raised serious and unresolved questions. In Trump v. Barbara, the Court ruled that the Fourteenth Amendment, which extends citizenship to all persons born in the United States and "subject to the jurisdiction thereof," was intended to adopt the then-existing common law rule of birthright citizenship….

In 1898 the Court affirmed this common law understanding in United States v. Wong Kim Ark. But that case involved the child of Chinese nationals who were permanently and legally domiciled in the United States, so it did not technically involve the classes of persons to whom Trump sought to deny citizenship: children of foreign nationals here illegally and children of transient visitors….

The tariffs case also presented a close question. The majority ruled that the president's power to "regulate" imports under the International Emergency Economic Powers Act (IEEPA) does not include the power to impose tariffs, as the Constitution generally assigns the power to tax to Congress, a tariff is a type of tax, and the IEEPA does not explicitly delegate the authority to tariff to the president. But Kavanaugh wrote a thoughtful dissent for three justices that echoed an earlier decision by Judge Richard Taranto, a widely respected moderate member of the US Court of Appeals for the Federal Circuit. The Supreme Court had previously interpreted the IEEPA broadly, and President Richard Nixon had imposed tariffs under a predecessor statute. Reasonable people could differ on the legal question, yet the Court sided against the president.

 

Cole makes similar points about some of the other major cases that Trump lost.

I actually think the birthright citizenship and tariff cases were more clear than Cole suggests. While there were indeed "reasonable" arguments on both sides, the plaintiffs' arguments were much stronger than those of the administration. In the birthright citizenship case, the administration's arguments would have undermined the main purpose of the Citizenship Clause: guaranteeing citizenship to freed slaves and other Blacks. In the tariff case (which I helped litigate), there was a long list of strong arguments against the Trump's position, any one of which would have been enough to justify ruling him. I summarized many of them here. Still, both cases raised largely unprecedented issues, and in both a Supreme Court inclined to do Trump's bidding could have found at least minimally respectable rationales for doing so. The same is true of the National Guard case, and others.

Overall, I very much agree with Cole's point that the Court has been a crucial check on Trump's power grabs, even if it hasn't always constrained him as much as it should. I have made similar arguments, myself (e.g. here and here). But, in some ways, it means more coming from Cole, as he is more ideologically distant from the Court's majority than I am.

It's possible to dismiss the Court's rulings against Trump on the grounds that, even if they went against Trump, they were still in line with the interests of at least some in the Republican Party. Thus, the Court could still be considered "partisan." After all, in each of these cases, there were at least some Republicans - including influential Republican legal elites and prominent conservative legal commentators - who opposed the administration's position.

But that claim runs into the painful reality that - at this point - the GOP overwhelmingly backs Trump's policies, including on the issues at stake in these cases. If having the support of a few Republicans or conservative legal commentators is enough to make a decision partisan, the claim would be nonfalsifiable. After all, almost any plausible resolution of any major case has the support of at least a few prominent Republicans. For example, there are pro-choice Republicans like Maine Sen. Susan Collins who would have preferred to see the Court preserve abortion rights and Roe v. Wade. It doesn't follow that a decision reaffirming Roe (the opposite of what the present Court actually did) would be a partisan Republican ruling!

It is fair to say, as liberal Justice Elena Kagan recently did, that this is a conservative Court, reflecting primarily conservative jurisprudential philosophies. As she puts it, "there's a conservative court doing things that conservative jurists have long thought it appropriate to do." But, as she also pointed out, that's different from being either a Trump Court or a bunch of GOP partisans.

In the last part of Cole's article, he takes the Court to task for neglecting the principle of stare decisis, overruling some precedents and severely narrowing others. I agree with his critiques of some of these decisions (e.g. - the awful Haitian TPS immigration ruling), and differ on others. But in each of these situations, it isn't so much the doctrine of precedent that is doing the work, as our (sometimes divergent) perceptions of whether the precedent the Court overruled or narrowed was right in the first place.

Few judges, legal scholars, or commentators are genuinely willing to apply stare decisis to preserve constitutional precedents they believe to be badly wrong - and rightly so. I wrote about this in a 2019 post, that I think remains relevant today:

I simply do not believe that stare decisis will prevent either the liberal or the conservative justices from overruling constitutional precedents they believe to be badly wrong, though both are happy to wave the stare decisis flag whenever precedents they like are imperiled…

The liberal justices who appeal to stare decisis today also applaud the work of the New Deal-era and Warren courts, both of which overturned numerous longstanding constitutional precedents. Given the opportunity, they would likely happily overrule such precedents as Citizens United and the travel ban case, both much reviled on the left (the latter deservedly so, in my view)….

The Supreme Court needs to have the power to overturn flawed constitutional precedent, as this is usually the only way to correct wrong constitutional decisions, short of using the extraordinarily difficult amendment process.

If precedent were sacrosanct, the Supreme Court could not have reversed or superseded any of its most notorious past decisions…  [I]n the travel ban case, the Court repudiated Korematsu v. United States, the notorious 1944 decision that upheld the World War II-era racially-based internment of over 100,000 Japanese-Americans. Hardly anyone objected that it was somehow inappropriate for the justices to junk a 74-year-old precedent….

Few people, particularly on the left, pine for the return of Bowers v. Hardwick, the 1986 case in which a narrow majority upheld the constitutionality of anti-sodomy laws. The Court eventually overruled Bowers in Lawrence v. Texas (2003)….

Today, pretty much every…. legal commentator can name Supreme Court decisions they would like to see overruled….

The justices' highest legal obligation is not to the Court's past precedents, but the Constitution. If they are convinced that the latter conflicts with the former, they should overrule, if at all possible. There is a good case for adhering to precedent in situations where the court is uncertain whether it is correct or not. In such situations, it might be reasonable to defer to the seeming accumulated wisdom of earlier judges, especially if there was a broad cross-ideological consensus among them…. [I]t is also justifiable to maintain wrong precedent in some instances where massive reliance interests would be upset otherwise.

But none of these considerations justifies maintaining precedents that the Court believes are badly wrong, and causing more harm than good in the real world. In such scenarios, the Court has a special obligation to help undo the evil that it had a major role in creating

See also my discussion here, of overturning precedents that protect individual rights.

I am far from an unequivocal defender of the current Supreme Court majority, and I think they have gotten some issues badly wrong. Just this term, we had the TPS case, and a severely flawed Takings Clause ruling. Earlier, there were clunkers like the Trump immunity decision, Trump v. Anderson, and the travel ban case, mentioned above. But when the Court goes wrong, it's generally not because they showed too little respect for precedent.

The Court's work could use significant improvement in a number of areas. But it's also important to acknowledge its very real achievements. And to resist efforts to destroy those achievements - and judicial review generally - by measures such as court-packing.

Guns

N.Y. Judge Rejects School's Request for "Red Flag" Order Against 13-Year-Old, Including No-Knock Search Warrant

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Some excerpts from N.Y. Saratoga County trial court judge Jonathan Schopf's long decision in Anonymous School Dist. v. Anonymous a week ago:

This matter stems from the filing of a Petition for a Temporary Extreme Risk Protection Order (herein "TERPO") under … New York State's "Red Flag Law" …. Respondent is a thirteen (13) year-ol…

On June 16, 2026, a Petition was filed seeking the issuance of the Temporary Order preventing the Respondent from purchasing, possessing or attempting to purchase or possess a firearm, rifle or shotgun as well as seeking a "no knock" search warrant executable at any time of the day or night without notice of the officer's authority or purpose for an address associated with the Respondent's father and an address associated with the Respondent's mother, and the seizure of any firearms, rifles, or shotguns located therein pursuant to such warrant.

In support of this Petition, the district filed an Affidavit of L., a teacher's aide, an Affidavit of the superintendent of the school district, and a printout of the Respondent's disciplinary referral record for the current academic year. {The sole basis in the Petition for the search warrant was that on June 16, 2026: "[w]hile [Respondent] and another student were in the hallway, he said to another student: 'I can't wait to shoot up the school.' When speaking with an administrator, [Respondent] initially denied making the comment but then admitted to making the comment."}

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Free Speech

Fifth Circuit Judges' Cert. Petition in Deray Mckesson Black Lives Matter Protest Liability Case

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From Fifth Circuit Judge Don Willett, joined by Judges Carl Stewart, James Graves, Stephen Higginson, Dana Douglas, and Irma Carrillo Ramirez, dissenting on Thursday in Ford v. Mckesson from denial of rehearing en banc:

The Supreme Court has already called the constitutional issue presented here "undeniably important": whether the First Amendment tolerates a negligent-protest theory that substitutes the mere foreseeability of a stranger's violence for intent. After a decade of litigation, full discovery, and another appeal, every threshold obstacle is gone. At last, the question is cleanly presented….

Every obstacle that complicated Supreme Court review in 2020 is now gone. The state-law uncertainty that prompted the Court's vacatur has been resolved. Discovery is complete. The pleading-stage assumptions have been tested. The district court entered final summary judgment. Counterman intervened, and the panel expressly held that it changes nothing. The en banc court has now declined to intervene.

The constitutional question is therefore squarely presented and unavoidable: may a political speaker be held liable under a negligence theory for an unidentified stranger's violence without proof that the speaker authorized, directed, ratified, or intentionally incited that violence? Claiborne, Counterman, and Brandenburg answer no. Our court now answers yes….

The Court should grant review and restore the constitutional line between advocacy and violence. Political speakers may be held to account for violence they commit, authorize, direct, ratify, or intentionally incite. But they may not be conscripted as insurers of a crowd—or as substitute defendants for an unknown assailant—simply because they were visible, prominent, and nearest the microphone.

This last paragraph is addressed to the Supreme Court; Judge Willett's opinion, in keeping with frequent legal usage, uses "the Court" to refer to the Supreme Court and "the court" to refer to the Fifth Circuit itself.

And here are some excerpts from the body of the opinion:

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Free Speech

First Amendment Might Protect FTP&ATF License Plate

The Fourth Circuit considers "a question that has divided ... courts ...: whether the character combinations on personalized license plates ... are government speech or private speech."

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From today's opinion in Whateley v. Lackey, written by Fourth Circuit Judge Pamela Harris and joined by Judges Agee and Keenan:

In Virginia, drivers may personalize their license plates with their own chosen character combinations. Virginia allows them to do so for a fee, and subject to certain restrictions for vulgarity and the like. Curtis Whateley took advantage of this opportunity and applied for a personalized license plate with the characters "FTP&ATF"—by which he meant, "Fuck the Police & Alcohol, Tobacco, and Firearms." Virginia first issued the plate but then revoked it on the grounds that it was vulgar and could be understood to promote violence….

This appeal requires us to address a question that has divided district courts and state supreme courts in recent years: whether the character combinations on personalized license plates (or "vanity plates") are government speech or private speech. Does Virginia speak for itself through the character combinations on the personalized plates it issues—in which case, it is entitled to express the views of its choice? Or do Virginia's personalized plates convey the private speech of drivers like Whateley—in which case, government restrictions on that speech must pass muster under the First Amendment? We conclude that Virginia's personalized license plate messages are private speech subject to First Amendment protection….

Whateley's private speech is entitled to First Amendment protection under the public forum doctrine, but whether he will prevail under that doctrine is a different question. That analysis will turn on the nature of the forum Virginia has provided for private speech on its personalized license plates and on Virginia's reasons for recalling Whateley's "FTP&ATF" message. {Oversimplifying somewhat, in traditional and designated public forums, open to all speakers on all topics, "governments have limited leeway to restrict speech," and restrictions generally are subject to strict scrutiny. In a nonpublic forum, by contrast, speech restrictions "only need to be reasonable and viewpoint-neutral."}

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Civil Procedure

Error 888: Complaint Too Long

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From today's decision by Judge Trevor McFadden (D.D.C.) in Soffer v. George Washington Univ.:

Two former George Washington University ("GWU") students and a student organization on behalf of its members sue GWU for its treatment of Jewish students and its handling of on-campus antisemitism. Though the Complaint paints a dark picture, its length—spanning nearly two hundred pages and over one thousand paragraphs—violates basic pleading rules. The Court will thus dismiss the Complaint without prejudice and permit Plaintiffs to file an amended complaint that complies with federal pleading rules….

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Politics

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

Prosecutor professional misconduct, detention without bond, and wanton statch interpretation.

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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.

New case! Last fall, masked, heavily armed CBP agents raided IJ client Leo Feler's property in Chicago because they saw some construction workers out in front of his home. The agents didn't have a warrant (nor does any exception to the warrant requirement apply), jumped a locked gate, and caused a bunch of damage and left behind puddles of blood. On their way out, they tear gassed neighbors "for fun" (per an agent on bodycam). So we're suing under Bivens, the FTCA, Illinois tort law, and the Westfall Act, and one of these days the Supreme Court is going to say that there is in fact a way to hold federal officers accountable for violating the Constitution. Click here to learn more.

New on the Short Circuit podcast: Tim Sandefur tells us all about his new book Proclaiming Liberty: John Adams, Thomas Jefferson, and the Declaration of Independence.

  • Remember how they started restricting the "good Sudafed" because of all the meth? But then there was this other stuff called "PE" that they claimed did the same thing? Turns out it was basically snake oil and that's been known since 2016. Class action plaintiffs: Drug companies did The RICO. District court: No. Second Circuit: Mostly affirmed. If the FDA says snake oil can be sold to fight cold symptoms, then you can't blame manufacturers for repeating those lies. But remanded on the claim that it's "maximum strength."
  • Law professors and nonprofit file a slate of grievance complaints against prosecutors in New York State, then bring First Amendment lawsuit to challenge the secrecy of the disciplinary proceedings that ensue. New York: You lose under Younger abstention! And O'Shea abstention too! And your case isn't ripe! District court: Cool it dudes. The plaintiffs absolutely have the right to be here. Also, they're right on the merits. Second Circuit: Chyeah. Attorney-disciplinary proceedings have been public since 1275.

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Free Speech

Law Firm Sues Ex-Client for Libel, Judge Lays Out Firm Owner's Disciplinary Record

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From Lento Law Group PC v. Estrada, decided last week by Judge Mia Roberts Perez (E.D. Pa.):

This case involves negative online reviews posted by a client who retained Plaintiffs Lento Law Group PC and Lento Law Firm (together, "Lento Law") as counsel in two legal matters in the fall of 2024. Dissatisfied with Lento Law's communication, advice, and representation, Defendant Kris Emmanuel Estrada wrote critical reviews on multiple online platforms asserting Lento Law was unprofessional, unethical, and uncommunicative, and that it altogether provided inadequate legal services.

Lento Law holds itself out as a national law firm specializing in education matters. Lento Law Group was founded by Joseph D. Lento, who was also the sole owner of Lento Law Firm. As of July 2024, Mr. Lento was Lento Law Firm's only employee and Lento Law Group's managing attorney. Mr. Lento has been suspended from practicing law in multiple jurisdictions for a multitude of violations of the professional rules of conduct occurring both before and after the events of this case.

Nonetheless, Lento Law has sued its former client for defamation and other torts, asserting his negative online reviews have harmed its reputation and business prospects. {Lento Law has brought numerous other defamation cases, including at least ten in the Philadelphia Court of Common Pleas in 2025 alone. E.g., Lento Law Group PC v. Schaffer, Case Id. No. 251201836 (Phila. Ct. Comm. Pls., Dec. 13, 2025); Lento Law Firm LLC v. Jones, Case Id. No. 251201833 (Phila. Ct. Comm. Pls., Dec. 13, 2025); Lento Law Group PC v. Bahram, Case Id. No. 251103741 (Phila. Ct. Comm. Pls., Nov. 26, 2025); Lento Law Group PC v. Christenson, Case Id. No. 251002164 (Phila. Ct. Comm. Pls., Oct. 20, 2025); Lento Law Group PC v. Coombes, Case Id. No. 250503786 (Phila. Ct. Comm. Pls., Aug. 21, 2025); Lento Law Group PC v. Anozie, Case Id. No. 250503791 (Phila. Ct. Comm. Pls., May 30, 2025); Lento Law Group LC v. Sejour, Case Id. No. 250503782 (Phila. Ct. Comm. Pls., May 30, 2025); Lento Law Group v. Coombes, Case Id. No. 250503786 (Phila. Ct. Comm. Pls., May 30, 2025); Lento Law Group PC v. Feuerborn, Case Id. No. 250201901 (Phila. Ct. Comm. Pls., Feb. 12, 2025); Lento Law Firm v. Walker, Case Id. No. 250202270 (Phila. Ct. Comm. Pls., Feb. 17, 2025); Lento Law Firm v. Doe 1-8, Case Id. No. 231102406 (Phila. Ct. Comm. Pls., Nov. 20, 2023); Lento Law Firm v. Ibrahim, Case Id. No. 240400659 (Phila. Ct. Comm. Pls., Apr. 4, 2024); Lento Law Firm v. Pandey, Case Id. No. 231100674 (Phila. Ct. Comm. Pls., Nov. 4, 2023); Lento Law Firm v. Myers, Case Id. No. 230900741 (Phila. Ct. Comm. Pls., Sept. 8, 2023).} Estrada moves to dismiss, arguing, inter alia, the statements contained within his online reviews of Lento Law cannot sustain a defamation claim because they are not capable of defamatory meaning. The Court agrees. The online reviews are either admittedly true, statements of opinion, or otherwise not capable of the defamatory meaning Lento Law ascribes to them. For these reasons, and the reasons discussed herein, Lento Law's claims must be dismissed.

Moreover, because Lento Law's claims are based on Estrada's protected public expression and Lento Law has failed to state a claim, Estrada is immune under Pennsylvania's Uniform Public Expression Protection Act and is entitled to his attorneys' fees, court costs, and expenses of litigation….

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Politics

"We Do Not Know Why Attorney Cole Feels Compelled to Rush out Obviously Flawed Filings, but This Must Stop" + $15K Sanction

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A key paragraph from Tuesday's opinion in Scott v. Ill. Hum. Rts. Comm'n, decided by Justice Rena Van Tine, joined by Justices David Ellis and Debra Walker:

In his response, attorney Cole says that he "want[s] to completely avoid legalese and speak directly to this Court." We will speak directly to him: this is unacceptable. Attorney Cole's response should have included scrupulously accurate and precise citations. Instead, it is yet another sloppy filing that misstates the law and creates more work for this court. We do not know why attorney Cole feels compelled to rush out obviously flawed filings, but this must stop. This type of lawyering is harming attorney Cole's clients, his own professional reputation, and this court's workflow….

And more details:

[P]etitioner misquotes inapplicable statutes and fabricates statutory language…. Petitioner's briefs also contain false case citations…. Finally, petitioner cites cases that do not support the propositions of law for which petitioner cites them. [Details omitted. -EV] …

Citations of fictitious legal authority do not automatically justify striking a brief and dismissing an appeal. Accordingly, we deny respondents' request to strike petitioner's brief and dismiss this appeal. However, we must address petitioner's attorney's pattern of presenting multiple fabricated quotes of statutory language and case citations….

On June 30, 2026, we ordered petitioner's attorney Mason Cole to file a response explaining the false quotations and citations in his briefs by July 14, 2026. Attorney Cole filed his response on July 2, 2026, 12 days early. His response concedes that all the quotations and citations set out above are false for the reasons we have explained. Attorney Cole states that he "frequently use[s] a premier corporate subscription of ChatGPT" to "synthesize complex matters," including this case.

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Free Speech

Retaliation Lawsuit Against Google by Ex-Employee Who Engaged in Anti-Israel Protests Can Go Forward in Part, Dismissed in Part

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Some excerpts from Judge Jesse Furman (S.D.N.Y.) Wednesday in Skaf v. Google LLC:

Skaf, an Arab woman, was employed by Google from January 12, 2009, to April 17, 2024….

On October 7, 2023, Hamas and its affiliates in the Gaza Strip launched a terrorist attack on Israel, prompting Israel to attack Hamas in turn. In the wake of these events, Skaf was an outspoken critic of Google's involvement with Israel and, the Complaint alleges, was "increasingly subjected to anti-Arab bias." But Skaf's criticisms of Google for its involvement with Israel long predated the events on and after October 7, 2023.

In May 2021, Google won the bid for Israel's "Project Nimbus, a contract to provide cloud computing infrastructure, artificial intelligence and other technology services to the Israeli government and its military, including and [sic] Israeli military efforts in the occupied territories." At or around the time, Skaf "raised concerns" about whether Project Nimbus adhered to Google's "AI Principles"—which provided, among other things, that Google would not design or deploy artificial intelligence technologies "whose principal purpose or implementation is to cause or directly facilitate injury to people" or "whose purpose contravenes widely accepted principles of international law and human rights." "[I]n response, Google informally flagged" Skaf, but it did not "officially reprimand[ ]" her. In October 2021, Skaf signed a "drop Nimbus petition."

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A Response To National Review's Editorial on Justice Barrett

"On the Supreme Court’s interim and certiorari dockets, Justice Barrett consistently stands apart from Justices Thomas and Alito when liberal lower courts run amok on hot-button social issues."

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Earlier this month, National Review published an editorial defending Justice Barrett, titled "Injustice Toward Barrett." The editors graciously invited me to write a response, which was published today. It is titled Counting All of Justice Barrett's Votes. Here is the introduction:

Of President Trump's three Supreme Court appointees, Justice Amy Coney Barrett has been subject to the most severe criticism. She's earned it. Most of the defenses of Barrett, including in these pages, highlight the important conservative majority opinions she has joined. It's true that she joins Justices Thomas and Alito, the Court's standard-bearer conservatives, in nearly 90 percent of the merits cases. But that voting record is not something that should have ever been in doubt. President Trump knew better than to appoint another moderate like Justice Sandra Day O'Connor, let alone a liberal like Justice David Souter.

Barrett is unquestionably a judicial conservative. Still, a complete assessment of Justice Barrett requires looking beyond the merits docket. On the Supreme Court's interim and certiorari dockets, Justice Barrett consistently stands apart from Justices Thomas and Alito when liberal lower courts run amok on hot-button social issues. Conservatives should not blind ourselves to where Barrett has consistently fallen short. All you have to do is count all her votes.

I walk through nearly three dozen cases on the interim and certiorari dockets where Justices Thomas and Alito were on one side, and Barrett was on the other.  Here is a snippet:

During the pandemic, Justice Barrett's first concurrence upheld California's ban on singing in church. Barrett was silent about challenges to state vaccine mandates brought by religious health-care workers. Barrett reversed a lower court ruling in favor of Navy Seals who objected to the military's vaccine mandate. Barrett stood by while the Biden administration pressured social media companies to deplatform conservatives. (Barrett would ultimately write the majority opinion finding that none of the conservatives actually suffered any injuries.) Barrett did not join the conservatives in support of a Florida law that prohibited restaurants from showing "adult live performances" to children. Barrett voted to block a Texas regulation of social media companies. Barrett refused to block a Biden-administration policy that required emergency room doctors to perform abortions. In this last case, Justice Alito wrote that his colleagues "simply lost the will to decide the easy but emotional and highly politicized question." Alito added that Barrett, among others, did "not want to tackle this case" and instead "ducked."

There's more. Barrett ruled that Texas could not install razor wire in the Rio Grande River to stem an influx of migrants. Barrett did not join the conservatives who reversed the Biden administration's decision to cut Oklahoma's Title X funding after it banned abortion. Barrett ruled that the Trump administration must pay nearly $2 billion in foreign aid. Barrett ruled that the Trump administration had to pay certain DEI grants. Barrett denied relief to South Carolina, which sought to limit bathroom use in schools based on biological sex. Barrett would not have allowed President Trump to deploy the National Guard to Illinois to assist in immigration enforcement. Justice Barrett greenlighted the shipment of mifepristone to states that ban abortion. . . .

Since Barrett joined the Court in 2020, there have been about a dozen contentious cases where Justices Thomas and Alito, plus either Justice Gorsuch or Kavanaugh, voted to review a case, and where it is fairly clear that Justice Barrett voted no. Given the Court's shrinking docket, each of these cases would have yielded a landmark decision. Justice Barrett likely turned away religious liberty petitions involving a Christian florist who refused to make arrangements for same-sex weddings, a Catholic diocese that refused to fund abortions for its employees, and an Indian group that tried to stop the destruction of its sacred site. Justice Barrett punted on pandemic-era cases involving a challenge to a state vaccine mandate and the case of a religious health-care worker who was fired for refusing the Covid-19 vaccine.

Justice Barrett did not signal a vote to grant petitions from a Catholic hospital that was forced to perform a hysterectomy on a transgender patient, a Christian counselor who was barred from counseling children to be comfortable in their own bodies, and parents who challenged a school's policy to encourage students to transition without parental knowledge. In this last case, Justice Alito warned that "some federal courts are succumbing to the temptation" to "avoid[] some particularly contentious constitutional questions." This message seems to be tailored to Barrett as well.

These thirty-odd cases are not minor. They are the sort of bread-and-butter issues that conservatives care most about. And Barrett's voting record was consistent.

I close on a note of optimism:

Fortunately, as Justice Barrett has just crossed the five-year threshold on the Court, there is still much room left for improvement on the interim and certiorari docket. Critics and supporters alike can just read all her opinions and count all her votes.

The votes are the votes are the votes. We can argue about many things, but at the end of the day, each Justice has one vote which she can use or not use.

Politics

Cooking Up A Blue Plate Special

A few miscellaneous points about one of the most unusual opinions of the term.

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I have an essay on Slaughter and Cook coming out in an online symposium from Law & Liberty. I found Cook to be one of the Chief's most unusual blue plate specials. It was so out of character from the Chief's usual writing style. Moreover, it is so strange to see the Chief respond to Justice Thomas's dissent, all in service of deciding an unnecessary constitutional law question. As I noted before, I think something happened behind the scenes.

Here are a few miscellaneous points that didn't fit into my (already-too-long) essay.

First, Chief Justice Roberts casually announced a principle of judicial supremacy using novel terminology:

Indeed, as a matter of vertical stare decisis, the lower courts have no choice but to follow our lead. When we define a term or establish a background rule, we need not repeat ourselves—once is enough.

The term "vertical stare decisis" has been used in several concurrences and dissents--Justice Kavanaugh has several of them. But the term has never appeared in a majority opinion to refer to the Supreme Court's supremacy. (I found one reference in a case involving vertical stare decisis between a district court and a circuit court.) Nothing in the Constitution requires lower courts to "follow our lead." Vasan Kesavan recently wrote a book-length law review article on the topic. But the Chief Justice pronounced that lower courts have no choice but to bend the knee. If only the Warren Court could have been so concise in Cooper v. Aaron in establishing the principle of judicial supremacy. Still, I don't think this line has gotten nearly enough attention. And it was certainly ignored by the federal judges in Boston and elsewhere who thought the Court's TPS ruling was optional.

Second, there was an important threshold question: did Cook have a cause of action to challenge the President's removal. Justice Thomas argued at some length that the federal courts lacked the authority to provide a remedy to Governor Cook. Justice Thomas points out that the majority fails to "identify[] a right of action . . . that overcomes sovereign immunity." Thomas observed the majority did not identify an "equitable remedy" from common law.

Chief Justice Roberts briefly replied in a footnote that Cook could sue "in equity." 

As a final procedural roadblock, Justice THOMAS contends that Cook may not herself "enforce the terms of the Federal Reserve Act," for "[n]o plaintiff … can sue without a right of action" that "come[s] from Congress." Post, at ––––. That is mistaken. We have often held that plaintiffs may sue "in equity" without a congressionally-provided cause of action " 'to prevent an injurious act by a public officer.' " Armstrong v. Exceptional Child Center, Inc., 575 U.S. 320, 327, 135 S.Ct. 1378, 191 L.Ed.2d 471 (2015) (quoting Carroll v. Safford, 3 How. 441, 463, 11 L.Ed. 671 (1845)); see also W. Baude, J. Goldsmith, J. Manning, J. Pfander, & A. Tyler, Hart and Wechsler's The Federal Courts and the Federal System 1348–1350 (8th ed. 2025) (noting "the availability of Ex parte Young-style litigation to challenge the legality of federal official action"). We see no reason why Cook may not pursue such a challenge here.

This throwaway line allowed Cook to proceed, but will have collateral consequences in countless other areas of the law where private litigants seek to challenge federal actions. Armstrong does not support what Cook did in this case, but the Chief Justice unfortunately breathed new life into that precedent.

Third, in Cook, Chief Justice Roberts ruled that President Trump did not provide Lisa Cook with the appropriate process before firing her. The Court did not spell out exactly what Trump should have done, but stated simply that the President's social media postings announcing the firing were not enough.  The Court could have stopped there. Instead, the Court opted to declare emphatically that the Federal Reserve was independent, and the President could not remove the Commissioner at will.

How the Chief Justice took this tack is unusual. Generally, once Roberts has five votes, he feels no obligation to respond to dissents. For example in Trump v. Barbara, the birthright citizenship case, Justices Thomas and Alito wrote nearly 150 pages of dissents. Roberts spends at most about 5 pages responding to them. Yet in Cook, Roberts responds nearly point-by-point to Justice Thomas, including the dissenter's argument that the purported independence of the Federal Reserve is unconstitutional in light of Slaughter, a decision that Roberts himself wrote. Again, the government did not contest the Fed's independence.

Roberts still engaged in a novel constitutional analysis, upholding the Federal Reserve's constitutionality. In a few breezy paragraphs, he drew an analogy between the Fed and the First and Second Banks of the United States, enacted during the Washington and Madison administrations, respectively. Roberts acknowledged there were differences between the institutions, as the Federal Reserve is "more powerful than its predecessors, managing a vastly more complex economy in a vastly more complex world."

But Roberts makes a glaring pivot that undermines any pretense of originalism. Roberts wrote "We see no reason, however, why our central bank ought to be 'trapped in amber' any more than any other aspect of our constitutional scheme." Here, Roberts cited his own opinion in United States v. Rahimi, which rolled back protections of the Second Amendment, which lacked a clear historical tradition. He also cited Noel Canning, a case he dissented in. All that is needed, Roberts writes, "is that the Federal Reserve remains "consistent with the principles that underpin" the First and Second Banks—namely, that monetary policy should not be subject to political interference." Finally, Roberts invoked Justice Frankfurter, who was no originalist; We thus look to history not as an end in itself, but (as we often do) to give "essential content to undefined provisions in the frame of our government."

Of course, there is the greatest inconsistency. How to reconcile Slaughter and Cook? Justice Thomas observed that Slaughter held that the President can remove a subordinate at "'will,' without cause, without notice, and without a hearing, so long as they exercise any executive power." Justice Barrett, in dissent, opined that the constitutionality of the removal restriction for Federal Reserve Governors is "is in a league of its own" yet is "entirely outside the scope of this case."

Yet, even with the Court's decision to reaffirm the Federal Reserve's independence, Roberts left open in a footnote whether Congress could delegate "additional regulatory powers that are attenuated from monetary policy," thus leaving the status of the agency in some "limbo."

Fourth, there was an unstated fear lurking in the background: if the President could conjure up dubious causes to fire a member of the Federal Reserve, the board's independence could be skirted. The Chief Justice suggested that the courts could scrutinize if the stated rationale provided for firing the Governor was in fact cover for an impermissible motivation. Such a "pretext," Roberts wrote, would be "corrosive of the independence that Congress sought to preserve." Here, Roberts cited his own ruling from Department of Commerce v. New York (2019)--quite possibly his worst decision of all time--which suggested the Trump Administration offered a pretextual reason for adding a question about citizenship to the census forms.

The upshot could not be clearer: Roberts has long been skeptical of the reasons offered by Trump, and would second-guess the elected president when he is suspicious. Yet, in an attempt to hold Trump accountable, Roberts has given the lower courts a green light to ferret out "pretext" in all manner of presidential decisions. As Adrian Vermeule observed, Roberts cooked up a mess.

Especially striking, as I will discuss at the end, is that Cook very arguably contains the Court's strongest assertion to date of a loose, unstructured judicial competence to review presidential findings and conclusion for "pretext" - an assertion that is potentially destabilizing in the extreme, and whose dangers the Court probably ought to consider more fully.

But of course, the Chief Justice blew right past this concern because the Federal Reserve is just too big to fail and orange man bad.

Fifth, Justice Thomas notes all of the firsts. The Court "upholds an injunction against the President's removal of an executive officer for the first time in the Constitution's 237-year history." No court ever "held that any federal statute implicitly requires notice and a hearing when it provides for a term of years limited by removal for cause."

Sixth, observers measure how partisan a Justice is based on how close to the "middle" they vote--not too conservative, not too liberal, Justice right. Justice Clarence Thomas is often assailed as the most ideological Justice. Nonsense. Thomas has an actual judicial philosophy that he steadfastly follows. Likewise, Justice Jackson on the other end has an actual judicial philosophy that she steadfastly follows. The most partisan Justices are those at the middle, who cast their votes going to the left or the right based on their read of the situation at the moment.

Here's looking at you, Chief.

Some More or Less Tentative Thoughts on Substack

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I appreciate the emails from readers about my Substack post. I do not read the comments, so if you left something there, and actually want me to see it, email me! Then again, I suspect a fair share of comments are written with full knowledge that I will never see it. So be it.

After reflecting on the responses, I will offer some more or less tentative thoughts.

First, why did I write my post? I could have simply launched a Substack, as others have done, without any explanation. I have several reasons. At the highest level, writing helps me think things through. If I can't state my thesis in a coherent written form, then my thesis doesn't work. Moreover, once I write something down, I've committed myself to it. "Locked in" as they say. But on a deeper level, I feel a kinship with my readers, even though I don't know them. I am fully aware of how many people read my posts. Indeed, it is a strange sensation when I meet people in public who recognize me from the blog. Once I was in an Uber and the driver figured out who I was and told me he watched all of my YouTube videos. We chatted the entire ride about Supreme Court cases. I invited him to my lecture the next day sent him a copy of my most recent book. On the Fourth of July, I visited the National Constitution Center (where else would I go?) and a reader spotted me and asked for a selfie. We later corresponded about career advice. I owe this audience I've built some explanation before I change how content is delivered.

Second, another comment was that I should not be motivated by money. This is something of a sensitive point, but is worth addressing. I went straight from clerking to academia. Other than working as a summer associate, I never earned a paycheck in private practice. I never collected those cushy clerkship bonuses. Plus, as readers will recall, I resigned from a position last year, and with that resignation, a paycheck immediately vanished. I have not taken a vow of poverty, and am not seeking anyone's pity. I have a blessed life with an amazing career that I would not trade for anything. Still, virtually all academics who forego careers in legal practice have to find opportunities for outside income. Some teach additional classes, even as adjuncts at other law schools. Others do consulting or part-time litigation with law firms. I am fortunate to be on the speaking circuit, which pays generous honoraria. Still, as time passes, the toils of traveling across the country grow. Many academics do get paid for their writing. Law schools often will provide writing stipends, or bonuses for articles placed in top journals. Law review symposiums often provide honoraria for participation. And so on. My goal, at least, is to be transparent.

Third, a reader suggested that my influence might decrease if I initially posted my material behind a partial paywall. I've given this issue quite a bit of thought. Most of my posts are written for a general audience, and have very little impact. But my most impactful audiences are written for very specific audiences. I would wager that the specific audiences that impact policy are the sorts of people who would not mind paying a nominal fee each month. Moreover, a Substack would allow me to build an audience of people who may not otherwise visit the Volokh Conspiracy. One of the greatest virtues of this blog is that there are a wide range of authors who post on a wide range of topics. But some readers may not prefer this format with all those views. Indeed, I've heard that there is apparently a filter to remove all of the "Josh Blackman" posts on VC. An independent site would let me speak to readers who want to hear my views. Commenters who hate my work would feel no obligation to read at all. Again, I ran a solo blog for more than a decade on JoshBlackman.com. I'm sure most of those readers came over to the Volokh Conspiracy, but some may not have.

Fourth, a reader said a 24-hour delay was not long enough. If that was the only gap, he would see no reason to subscribe, and just postpone his reading for a day. One alternate idea I had would be to post all of the week's content on the Volokh Conspiracy on Friday afternoon, similar to how the Supreme Court used to post all of the oral argument for the week on Friday afternoon. This would let readers who are unable or unwilling to pay the fee to catch up with all of my work over the weekend. My observant readers could event print stuff out for non-electronic reading. This would also eliminate the administrative burden of trying to figure out when posts would run. I could condense everything into a "week in review" format.

Fifth, a longtime reader raised what I think is the biggest risk with creating a subscription model: I may be tempted, even subconsciously, to alter my work to attract a bigger audience. This concern is serious. Getting clicks can be addictive. Indeed, one of the reasons I have limited my part-time legal practice to pro or "low" bono work is so that I never feel obligated to take or keep a case I don't believe in. Relatedly, this model would create an incentive to always create new content. As things stand now, I can write five posts in a day and then nothing for two weeks. But if there is an expectation to release a newsletter each week, I would feel obligated to write a newsletter each week. I don't know that I have a solid response to this concern. I can say, "Well, if it doesn't work out, I'll go back to the old model." But I am aware that a dependency on a source of income is hard to break. (Again, see my resignation from Heritage.) The best response I can offer is that my nearly two decades of work has steeled me to always pursue the truth. Indeed, a name I came up with for a Subtack reflects this mantra: "Unpopular Opinions: Always authentic. Often controversial. Never afraid."

I welcome more thoughts and comments. I continue to work through this idea.

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