As promised, government services contractor Gordon-Darby Inc. has renewed its attempt to force the state of New Hampshire to revive its vehicle emissions inspection program. On July 22, the firm filed a new lawsuit challenging the state's decision to end the program and seeking a federal court injunction to force the state to re-start it--thus giving Gordon-Darby the opportunity to pursue another lucrative contact providing emission inspection testing. As before, Gordon-Darby's suit betrays a profound misunderstanding of both the Clean Air Act and the constitutional limits on the federal government's ability to compel state action.
The central claim in the suit is that New Hampshire is violating the Clean Air Act because it is required to have a vehicle emissions inspection program as part of its State Implementation Plan. What the suit overlooks, however, is that the Act does not authorize injunctions to compel state implementation of the Act. To the contrary (and as one of the plaintiffs' supporting exhibits makes explicit), if a state is failing to meet its SIP obligations, the remedies are for the EPA to impose sanctions, which can include the imposition of a Federal Implementation Plan (FIP)--implemented and enforced by the federal government--and the loss of federal funds (including, potentially, highway funds). Yet that is not what the plaintiffs want here (which is why they are suing New Hampshire instead of the EPA). Rather, as they make explicit in their complaint, the purpose of the suit is to "compel New Hampshire state officials" to implement the desired program.
The Clean Air Act has never provided for the sort of enforcement that Gordon-Darby seeks, and with good reason. As the Supreme Court has made clear in New York v. United States, Printz v. United States, and NCAA v. Murphy, the federal government lacks the authority to compel a state to adopt, administer, or implement a desired regulatory program. Further, as Murphy made explicit, this anti-commandeering principle applies to attempting to prevent a state from repealing an existing law, as the New Hampshire legislature did here.
As it happens, the theory advanced by the plaintiffs was briefly embraced by the EPA in the early 1970s, as the Clean Air Act was first being implemented. Concerned that states were not doing enough to reduce air pollution, the EPA sought to force states to adopt specific emissions control measures, including the adoption of vehicle emission inspection programs! Three of four federal circuit courts rejected the EPA's arguments, however. The Supreme Court granted certiorari, at the federal government's request, only to dismiss the case after the Department of Justice conceded (in a footnote) that the EPA's regulations could not be lawfully enforced. Even though the Supreme Court would not articulate an anti-commandeering rule for another fifteen years, DOJ recognized the constitutional problem with trying to turn state officials into agents of the federal government. Now that the anti-commandeering doctrine is explicit, there should be even less room to debate Gordon-Darby's audacious legal claim.
This time around Gordon-Darby is joined by an individual plaintiff, Marilyn Jonas, who claims her asthma is exacerbated by air pollution. The addition of an individual plaintiff who can claim tangible harm from air pollution increases that may result from termination of the emissions inspection program may help Gordon-Darby avoid dismissal on standing grounds, but it does not change the statutory or constitutional analysis.
When Gordon-Darby first brought litigation seeking to keep the emissions inspection program in place, New Hampshire failed to raise commandeering arguments in its defense, preferring various procedural and jurisdictional arguments that the district court unpersuasive. As the case has been assigned to the same judge, we will see whether history repeats itself in that respect here.
When the government regulates conduct, it does not always do so directly. Increasingly, the government regulates conduct indirectly—by pressuring some intermediary to do the direct regulatory work for it. This form of indirect regulation has raised considerable concern in the context of speech regulation. Scholars and activists have sounded alarm bells that this form of indirect speech regulation, typically referred to as "jawboning," often violates the First Amendment because it allows the government to censor expression on the cheap. Indeed, during its 2024 term, the Supreme Court heard two different First Amendment jawboning cases. While one case, Murthy v. Missouri, was dismissed on standing grounds, the Court reaffirmed, in NRA v. Vullo, that coercive jawboning of protected expression violates the First Amendment.
Despite jawboning cases taking up a substantial portion of the Court's docket during its 2024 term, little scholarly discussion about jawboning can be found. The scholarly discussion of jawboning that does exist tends to converge on a standard picture—that jawboning is an inherent threat to freedom of expression and that it is, therefore, necessarily normatively undesirable. Thus, while scholars have identified possible perils of jawboning, practically no attention has been paid to the promises.
This Article rejects the standard picture. In a nutshell, this Article argues that we ought to be more ambivalent about jawboning, or, in other words, that whether jawboning is normatively desirable turns on a fine-grained contextual analysis that's glossed over by the standard picture.
This morning I filed an amicus brief in Suncor Energy (U.S.A.) Inc. v. County Commissioners of Boulder County. In this case, likely to be argued in October, the Supreme Court will consider, among other things, whether the Clean Air Act or the Constitution preempt state-law claims seeking relief for injuries allegedly caused by climate change.
Grok
As my prior blogging on the subject has indicated, I find the preemption claims to be without merit. (I have no opinion on the procedural jurisdictional issue, but recommend the briefs by Profs. Derek Muller and Ben Johnson for an idea of the issues there.) Accordingly, my amicus brief focuses on the preemption claims. Here is the summary of my argument:
From last Monday's decision by Magistrate Judge Mark Dinsmore (S.D. Ind.) in Kimberlin v. Metro. School Dist. of Wash. Township Schools refusing to allow Brett Kimberlin to add an extra claim to his pending lawsuit (see here for more on the original claims):
[Plaintiff] claims Defendants failed to adequately respond to a letter he sent Dr. Woodson in 2024 accusing a now-deceased schoolteacher of sexually abusing him while he was a middle school student in the 1960s. The teacher's employment with the school ended in 1969, and Plaintiff left the state of Indiana in 1978. Plaintiff currently resides in the state of Maryland, and he does not allege to have any present affiliation with the School District, aside from sending his letter to Dr. Woodson in 2024.
The complaint alleges that rather than investigate his claims, as is required by the School District's own policies, Dr. Woodson and others engaged in an effort to dismiss and cover up his allegations. Based on these allegations, the complaint asserts claims against Defendants under Title IX and the Fourteenth Amendment Due Process Clause and Equal Protection Clause….
[T]he proposed amended complaint asserts an additional claim against Dr. Woodson for negligence. The negligence claim alleges that Dr. Woodson failed to comply with Indiana's mandatory reporting statutes, which require school officials and others to immediately report allegations of child abuse to law enforcement. It also alleges that Dr. Woodson failed to follow the School District's own policies with respect to allegations of child abuse and that she tried to cover up Plaintiff's allegations….
Law students around the country will be starting classes over the next few weeks. Back in 2018, I wrote a post offering advice to entering students, which I updated in 2019, 2022, 2023, 2024, and last year. I tried to focus on points that I rarely, if ever, see made in other pieces of this type. I think my original suggestions remain relevant today. So I reprint my advice from earlier posts largely unaltered, with the addition of incremental edits and updates:
1. Think carefully about what kind of law you want to practice.
Law is a profession with relatively high income and social status. Yet studies repeatedly show that many lawyers are deeply unhappy, a higher percentage than in most other professions. One reason for this is that many of them hate the work they do. It doesn't necessarily have to be that way. There are lots of different types of legal careers out there, and it's likely that one of them will be a good fit for you. A person who would be miserable working for a large "Biglaw" firm might be happy as a public interest lawyer or a family law practitioner, and so on. But to take advantage of this diversity, you need to start considering what type of legal career best fits your needs and interests.
There are many ways to find out about potential options. But one place to start is to talk to the career services office at your school, which should have information about a range of possibilities. Many also often have databases of alumni working in various types of legal careers. Talking to these people can give you a sense of what life as a practitioner in Field X is really like. Internet resources - including AI - are also a good way to start looking at options in a range of different fields, though it's important to remember this online information isn't always accurate.
This advice applies not just to what you do in school, narrowly defined, but what you do in the summer, as well. Law students typically get summer jobs at firms or other potential future employers. Apply widely, and look for organizations that might be good employers, or at least introduce you to areas of law that might be crucial for your future career.
Regardless, don't just "go with the flow" in terms of choosing what kind of legal career you want to pursue. The jobs that many of your classmates want may be terrible for you (and vice versa). Keep in mind, also, that you likely have a wider range of options now than you will in five or ten years, when it may be much harder to switch to a very different field from the one you have been working in since graduation.
2. Get to know as many of your classmates and professors as you reasonably can.
Law is a "people" business. Connections are extremely important. No matter how brilliant a legal thinker you may be, it's hard to get ahead as a lawyer purely by working alone at your desk - even with the help of AI and other modern tech. Many of your law school classmates could turn out to be useful connections down the road. This is obviously true at big-name national schools whose alumni routinely become judges, powerful government officials, and partners at major firms. But it's also true at schools whose reputation is more regional or local in nature. If you plan to make a career in that area yourself, many of your classmates could turn out to be useful contacts.
The same holds true for professors, many of whom have extensive connections in their respective fields. They are sometimes harder to get to know than students. But the effort is often worth it, anyway. And many of them are actually more than eager to talk about their work.
Even in an age of widespread social media and other online connections, in-person interaction is essential, and often difficult to fully replicate in other ways. Try it and see!
This is one front on which I didn't do very well when I was in law school, myself. Nonetheless, I still suggest you do as I say, not as I actually did. You will be better off if you learn from my mistakes than if you repeat them.
3. Think about whether what you plan to do is right and just.
Law presents more serious moral dilemmas than many other professions. What lawyers do can often cost innocent people their liberty, their property, or even their lives. It can also save all three. Lawyers have played key roles in almost every major advance for liberty and justice in American history, including the establishment of the Constitution, the antislavery movement, the civil rights movement and many others. But they have also been among the major perpetrators of most of the great injustices in our history, as well.
Robert Cover's classic book Justice Accused - a work that made a big impression on me when I was a law student - describes how some of the greatest judges and legal minds of antebellum America became complicit in the perpetuation of slavery. While we have made great progress since that time, the legal system is not as far removed from the days of the Fugitive Slave Acts as we might like to think. There are still grave injustices in the system, and lawyers whose work has the effect of perpetuating and exacerbating them. We even still have lawyers who do such things as come up with dubious rationales for deporting literal escaped slaves back to places where they are likely to face further oppression. The present administration is coming up with even more dubious rationales for doing things like using the Alien Enemies Act of 1798 (previously used only in wartime) to deport people who have not broken any laws to imprisonment, without any due process. The latter is just one of several dramatic examples of how we are now engaged in a struggle over the future of justice and the rule of law in this country. And, yes, left-wing government policies perpetrate plenty of injustices, as well.
Law school is the right time to start working to ensure that the career you pursue is at least morally defensible. You don't necessarily have a moral obligation to devote your career to doing good. But you should at least avoid exacerbating evil. And it's easier to do that if you think carefully about the issues involved now (when you still have a wide range of options), than if you wait until you are already enmeshed in a job that involves perpetrating injustice. At that point, it may be too late - both for you and (even more importantly) for the people who may be harmed.
4. Legal knowledge isn't as different from other kinds of knowledge as you might think.
Students often ask me how best to study for law school classes. My answer is that there isn't one way that's best for everyone. You probably know what works for you far better than I do.
In law school, you are likely to be bombarded with all sorts of complex methods of studying and outlining cases. Advocates of each will often tell you theirs is the One True Path to law school success. Some students really do find these methods useful.
But I would urge you to consider the possibility that you can study for law school classes by using…. much the same methods as you used to study other subjects in the past. If you were successful in social science and humanities classes as an undergraduate, the methods that worked there are likely to carry over.
I know because that's largely what I did as a law student myself. I did the reading, identified key points, and didn't bother with complicated outlines or spend money on study guides. If I did badly in a class, it wasn't for lack of more complex study methods (usually, I either got lazy or just had a bad day on the final exam). And I've seen plenty of other people succeed with similar approaches. You can save a lot of time and aggravation (and some money) that way. And that time, energy, and money can be better devoted to other purposes - including advancing your studies and your career in other ways!
Ultimately, when reading a legal decision (or any assignment), you need to 1) identify the key issues, and 2) understand why they are important. With rare exceptions, the case in question was likely included in the reading because it highlights some rule, standard, or issue that has a broader significance. If you know what that is and why it matters, much of your work is done. The same goes for most other kinds of assigned reading: they are probably there because the professor thinks they elucidate some broadly important point. Figure out what it is, and you will be in good shape.
These days, there is much discussion about the extent to which students should rely on AI to help them study. I don't have any definitive answer to that question. But, ideally, AI can augment your reading, writing, and analytical skills, but doesn't fully replace them. You should also be wary of its tendencies to hallucinate information. In addition to outright hallucinations, I often find that AI descriptions of legal and political issues feature more subtle, but still significant, distortions and errors. Use its output, but verify for accuracy. And, as with other study aids, the use of AI to study law need not be much different than its proper use for other subjects.
I don't think I need to dwell on how recent events have reinforced the significance of Point 3 above. Suffice to say there are many recent examples of lawyers facilitating both good and evil. Even if you don't maximize the former, you should at least avoid contributing to the latter.
On April 26, 2024, Plaintiffs participated in a pro-Palestine student protest. As relevant here, in the days leading up to the protest, "Defendants engaged in extensive communication and preparation … externally with … affiliates of political organizations such as the Anti-Defamation League [("ADL")] … all with the goal of preventing or squashing any public demonstrations against the use of public assets to fund the genocide in Gaza or affiliation with pro-Zionist entities that might take place at [Arizona State University ("ASU")] or any other public Arizona university." One such communication took place four days before the protest on April 22, [2024], wherein the CEO of the ADL, Jonathan Greenblatt, "explicitly called for ASU to prepare and coordinate with law enforcement in order to impose clear and immediate consequences on students protesting Zionism and its murderous effects in Gaza."
Several hours into the protest, some of the Plaintiffs were forcibly removed, some were arrested, and some were injured. The next day, Plaintiffs were suspended, banned from ASU property, and prohibited from communicating with ASU faculty. Plaintiffs are now suing Defendants for violating their First Amendment right to free speech and discovery efforts are underway.
As relevant here, [ASU President] Dr. Crow has produced 662 pages of communications between ASU and ADL, including emails between Mr. Greenblatt and Dr. Crow. Plaintiffs detail some of those communications in their response brief including, for example, an April 11, 2024 email predating the protests in which Mr. Greenblatt announced the ADL's implementation of "Campus Antisemitism Report Cards" and informed Dr. Crow that ASU earned a "C" grade.
Professor Ramsi Woodcock, currently suspended from his teaching duties at the University of Kentucky School of Law, has sued to block former U.S. District Judge Greg Van Tatenhove from serving as the law school's dean.
In his view, hiring a judge rather than a tenured professor to lead the school precludes the law faculty from expressing to the outside world that their scholarship is the product of a peer-reviewed search for truth. This abridges the faculty's collective right to associate around a shared message, Woodcock maintains, even though the University has not barred him or his colleagues from speaking out about the appointment or its effect on their work. Nor do Woodcock's allegations (as clarified during a TRO hearing) suggest that the University has prevented the faculty from writing, submitting, or publishing articles or other scholarship—or indeed from imposing or threatening any sort of sanction if they do. Yet to avoid sending a message the faculty disapproves of, Woodcock has asked the federal court to override the University's appointment, bar Van Tatenhove from serving, and "appoint the Faculty Executive Committee … to the position of dean." …
[T]he Court held a hearing on Monday, July 20, denying the request for a temporary restraining order on three principal grounds:
Woodcock hadn't established his right to bring a freedom-of-association claim based on the putative message of the entire law-school faculty.
Assuming the law faculty is an expressive association properly represented by Woodcock, he failed to show that the faculty had collectively articulated any message associated with its scholarship that has been skewed by the hiring of a new dean.
Assuming such a collective message existed, Woodcock hadn't shown a likelihood that the appointment of a new dean had abridged the faculty's ability to express any such message regarding its scholarship or membership.
From the 36K-word decision in Laffery v. Pertl, by Wisconsin Court of Appeals Judge Maria Lazar, joined in part by Judges Lisa Neubauer and Mark Gundrum:
Appellants and foster parents, Brian and Katie Lafferty appeal the circuit court's order on cross-motions for summary judgment executed in favor of respondents Jeff Pertl and Julie Driscoll as well as the court's decision and order denying the Laffertys' motion for a protective order. The Laffertys have been seeking to exercise their state and federal constitutional rights for five years while the Wisconsin Department of Children and Families (DCF) and Washington County Human Services Department (the County) have dithered, moved the goal posts, and changed the rules of the game every step along the way.
The Laffertys' current appeal challenges several regulations … regarding the renewal of their foster home license, which they contend are facially unconstitutional. In 2020, Washington County began to require compliance with additional restrictions before a license could be renewed, including: (1) a storage requirement that mandated firearms be stored, in a location not readily accessible to children, locked and unloaded in the home and in a separate location from ammunition; (2) a carry ban that prohibited a foster parent with a conceal carry license from carrying a weapon in the presence of foster children; and (3) a disclosure requirement that mandated foster parents must list all firearms currently (and some formerly) owned, and to identify their locations and the separate location of ammunition. The Laffertys assert that the circuit court erroneously granted summary judgment against them on procedural grounds, and that the various rules and regulations imposed upon them by the County and/or the DCF violate their federal and state constitutional Second Amendment rights.
Karim Khan, the Chief Prosecutor of the International Criminal Court from 2021 until his removal in 2026, ultimately lost his position after an investigation concluded that he had engaged in serious sexual misconduct toward a female subordinate. Khan denied the allegations, insisting they were false and politically motivated. Nevertheless, following an extensive investigation by the ICC's oversight bodies, he was first suspended and then dismissed by an overwhelming vote of the Court's member states—the first sitting ICC prosecutor ever removed from office.
The scandal also cast a cloud over Khan's handling of the ICC's investigation into Israel. According to The Wall Street Journal, after learning in May 2024 that the allegations against him were about to become public, Khan, stunning his own staff, abruptly canceled plans to continue gathering evidence in Israel and Gaza and instead quickly announced that he would seek arrest warrants for Israeli Prime Minister Benjamin Netanyahu and Defense Minister Yoav Gallant, along with Hamas leaders. Whether or not the timing reflected an effort to divert attention from his personal scandal, it undeniably deprived the investigation of additional fact-finding that Khan himself had apparently considered necessary only days earlier. The warrants were later issued by the ICC and remain in effect despite Khan's removal because they are orders of the Court, not of the individual prosecutor.
Anti-Israel activists such as Zohran Mamdani will no doubt continue to invoke those warrants as proof that Netanyahu is a "wanted war criminal." But even putting aside the troubling circumstances surrounding Khan's decision to seek them, the warrants suffer from a separate and fundamental legitimacy problem.
As my colleague and co-blogger Eugene Kontorovich observed in 2024, Khan's decision-making process was compromised by his reliance on a handpicked group of advisers and outside experts who had already spent years publicly accusing Israel of war crimes and advocating legal action against it. Rather than assembling a balanced panel representing a range of views on the difficult legal questions presented by the conflict, Khan chose individuals whose public records left little doubt where they stood. To say the least, this was hardly a process designed to inspire confidence in the ICC's impartiality.
As Kontorovich notes, the most striking example was Kevin Jon Heller of the University of Copenhagen, whom Khan publicly thanked for his assistance when announcing the charges. Heller had endorsed the anti-Israel BDS movement, described Israel as systematically denying Palestinians basic rights, called Israel "the Donald Trump of repressive states," and in 2020 referred to Benjamin Netanyahu and Donald Trump as "two criminals conspiring to commit criminal acts against Palestine." He frequently relied on anti-Israel NGOs while dismissing pro-Israel organizations as traffickers in "fake law and propaganda." Nor were these isolated remarks. For example, in 2015, Heller declared that "my political sympathies are very much with Palestine" and said that he did not doubt Israel had committed various war crimes.
Kontorovich shows that the broader panel reflected the same pattern. Baroness Helena Kennedy had long urged ICC investigations of Israel, accused Israel of violating international law in Gaza, and publicly demanded that "enough is enough." Danny Friedman had already argued that Israel's pre-10/7 siege operations amounted to war crimes. Amal Clooney likewise had a well-established record of criticizing Israeli policy, while even the panel's Israeli member, former judge Theodor Meron, was better known for criticizing Israel's conduct than for defending it.
Missing entirely was anyone who had publicly questioned the ICC's jurisdiction over the conflict, challenged the legal theories underlying the proposed charges, or expressed skepticism that Israeli officials had committed international crimes. A panel assembled in that fashion could scarcely be expected to provide the independent, objective review that the gravity of seeking arrest warrants against the leaders of a democratic country at war.
To "protect children from obscenity," [Arkansas] Act 372's first section criminalizes "furnishing a harmful item to a minor …." A person commits this offense "if, knowing the character of the item involved, the person knowingly … [f]urnishes, presents, provides, makes available, gives, lends, shows, advertises, or distributes to a minor an item that is harmful to minors." Section 1 defines "[h]armful to minors" as
that quality of any description, exhibition, presentation, or representation, in whatever form, of nudity, sexual conduct, sexual excitement, or sadomasochistic abuse, when the material or performance, taken as a whole, has the following characteristics:
(A) The average person eighteen (18) years of age or older applying contemporary community standards would find that the material or performance has a predominant tendency to appeal to a prurient interest in sex to minors;
(B) The average person eighteen (18) years of age or older applying contemporary community standards would find that the material or performance depicts or describes nudity, sexual conduct, sexual excitement, or sadomasochistic abuse in a manner that is patently offensive to prevailing standards in the adult community with respect to what is suitable for minors; and
(C) The material or performance lacks serious literary, scientific, medical, artistic, or political value for minors.
Arkansas can punish violations of § 1 with up to a year of imprisonment.
To "increase accountability for public-library curation decisions," § 5 requires county and municipal libraries to adopt two written, publicly available policies. The first policy must "establish guidelines for the selection, relocation, and retention of physical materials that are available to the public." And the second policy must allow people who are "affected by the material" to "challenge the appropriateness of material available in the county or municipal library" and must lay out certain procedures the library will follow, "at a minimum," when someone lodges such a challenge….
Rhode Island property targeted for condemnation to prevent construction of affordable housing on the site. (PLF).
Last year, I wrote about SCLS Realty v. Town of Johnston, a case where property owners challenged a Rhode Island town's plan to use eminent domain as a tool for blocking a housing project opposed by local NIMBYs. A few days, ago a federal district court invalidated the use of eminent domain there. But not on the "public use" grounds discussed in my 2025 post. Rather, the Court ruled that the Town was never delegated the authority to use eminent domain for this kind of purpose in the first place. In Rhode Island (as in other states) eminent domain is a power of the state government, and localities can only wield it in so far as the state legislature authorizes them to do so.
Robert Thomas of the Pacific Legal Foundation (the public interest law firm that represented the property owners) has a helpful and more detailed summary of the court's ruling at the Inverse Condemnation blog.
NOTE: PLF is also my wife's employer. But she has no involvement in this case and does not work on property rights issues.
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.
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 against 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 some of the cases weren't that difficult, and 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.
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."}
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:
