The Volokh Conspiracy

Back in August 2025, I speculated about why the Court granted certiorari in Chiles v. Salazar, yet denied review two years early in Tingely v. Ferguson, an identical case from the Ninth Circuit. I queried, "Perhaps the climate of the day on transgender issues, in the wake of Skrmetti, make this issue more palatable?"

On Tuesday, the Court decided Chiles. The 8-1 vote was quite lopsided. Only Justice Jackson was in dissent. She articulated a very cramped conception of free speech in the commercial context. Justices Kagan and Sotomayor joined the majority opinion in full. They even wrote that Jackson "reimagin[ed]—and in that way collaps[ed]—the well-settled distinction between viewpoint-based and other content-based speech restrictions." I think Kagan and Sotomayor were correct. Indeed, it was very significant they felt compelled to respond forcefully to Justice Jackson. There have been press reports of how Justice Kagan and Sotomayor are unhappy with Justice Jackson. This opinion may represent those tensions boiling over.

Given that this case was so straightforward, why didn't the Court grant Tingley in 2023. The legal issues are the same. There has been no intervening free speech precedent.

I would posit that the legal landscape for transgender cases has changed since 2023. President Trump's executive order from January 2025, rejecting the entire concept of gender identity, reflects a broader societal shift. In the span of about a year, the Court will have decided Skrmetti, Mahmoud, Chiles, Mirabelli, and the Title IX case. While Srkmetti and Mahmoud split 6-3, I think the Title IX case may also be lopsided. Based on the oral argument, Justice Kagan seemed sympathetic to the view that Title IX bars biological males in female sports.

The legal landscape for transgender cases has shifted since 2023. Most Americans, and even legal elites, see a distinction between gay and lesbian rights and transgender rights. You can support gay marriage but oppose providing puberty blockers to minors. You can support gay troop leaders but oppose drag queen storytime. You can oppose electro-shock therapy for gay teens and also oppose public schools secretly transitioning teens without telling parents. You can oppose firing a person because they're gay but favor excluding biological males from female spas. And so on.

I've never fully understood why LGB was merged with T. Sexual orientation and gender identity are such different concepts. For gays and lesbian people, the mantra is "we were born this way, so accept us as we are" But for transgender people, the message is the opposite: "we were not born this way, so accept us as we tell you we are."

I think the schism between LGB and T is now inevitable. At some point, gay rights groups might re-evaluate their priorities.

I have finished editing Chiles v. Salazar for the Barnett/Blackman supplement. This is a fascinating case. Based on the lopsided 8-1 vote, my initial take was that this case didn't add much to the doctrine. But on further reflection, I think it is a very good teaching tool. Justice Gorsuch's majority opinion ably summarizes doctrine with regard to both content discrimination and viewpoint discrimination. Moreover, I've always found Holder v. HLP to be a difficult decision to teach. Gorsuch summarizes HLP and applies it to a much more relatable context. On the flip side, Justice Jackson continues the path charted by Justice Breyer of narrowly reading free speech doctrine in the commercial context. Methinks KBJ suffers from Lochnerphobia. Finally, Chiles pairs nicely as a thematic matter with Skrmetti, Mahmoud, and the Title IX case.

Chiles may be worth adding to the casebook, and dropping out some of the older-ish cases.

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.