The Volokh Conspiracy

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

When applying Fourth Amendment doctrine, to what extent can race and ethnicity be considered? The Supreme Court denied cert on Monday in United States v. Carter, a case on this question—specifically, on whether the Fourth Amendment test for whether a person is "seized" factors in the person's race. There's an interesting connection between this issue and last fall's debate over the role of race in immigration stops, raised in Noem v. Vasquez Perdomo. I thought it might be worth flagging the potential connection, and to ask about ways to distinguish how the law approaches them.

Here's the context. Carter asked the Court to resolve a longstanding open question in Fourth Amendment law: When applying the Fourth Amendment test for when a person is seized—whether a reasonable person in that situation would feel free to terminate the encounter and leave—does the suspect's race matter? There's a split among lower courts. Some courts say that there is one reasonable person standard for people of any and all races. Other courts say that people of different races tend to have different experiences with the police, and that those different experiences can can lead to a different sense of when they are free to leave. Under the first approach, race is irrelevant; under the second approach, race is relevant.

Justice Alito dissented from the denial of certiorari, joined by Justice Thomas. Justice Alito's dissent raised the question of whether a broader commitment to a color-blind Constitution answered the question in Carter:

We have said that our "'Constitution is color-blind.'" Students for Fair Admission, Inc. v. President and Fellows of Harvard College, 600 U. S. 181, 230 (2023). It "almost never" allows government actors to treat persons differently based on their race. Louisiana v. Callais, 608 U. S. ___, ___ (2026) (slip op., at 17). And we have rejected the proposition that the Constitution permits an individual to be treated differently based on a "perception that members of the same racial group—regardless of their age, education, economic status, or the community in which they live—think alike." Shaw v. Reno, 509 U. S. 630, 647 (1993). It is dangerous to allow an individual to be treated differently based on statistics, studies, or expert testimony that purports to show that members of the racial or ethnic group to which he belongs are more likely to act in a certain way than are members of other groups. Here, the special treatment helped the individual; in other situations it will not. See Buck v. Davis, 580 U. S. 100, 119 (2017).

Perhaps the [lower court's] test has legitimate justifications. In any event, it is important, and it warrants this Court's review. I therefore respectfully dissent from the denial of certiorari.

I don't take Justice Alito to have answered the question of whether a commitment to a color-blind Constitution requires saying race is irrelevant to the seizure analysis, as he was just flagging the question as important and cert-worthy (which seems right to me). Still, Justice Alito's opinion suggests at least that it might do so. And that view has surfaced in some of the lower court caselaw, such as Judge William Pryor's opinion in United States v. Knights, 989 F.3d 1281, 1289 (11th Cir. 2021).

Which brings me to my question: If you believe that a commitment to a color-blind Constitution answers the question in Carter, does it also answer whether race can be used as a basis for cause in making a stop for immigration violations, one of the big questions debated last fall when the Court was considering in Noem v. Vasquez-Perdomo?

As you may recall from Noem, one of the issues involved in reviewing that injunction was the use of race and ethnicity to temporarily stop people for immigration violations, which was a major question in light of ICE enforcement activities. That wasn't a new issue in Fourth Amendment law, to be clear. Back in 1975, in United States v. Brignoni Ponce, the Court had held that a person's perceived Mexican ancestry was relevant to whether to stop them for a possible immigration violation but not enough cause on its own. Brignoni Ponce concluded: "The likelihood that any given person of Mexican ancestry is an alien is high enough to make Mexican appearance a relevant factor, but standing alone it does not justify stopping all Mexican-Americans to ask if they are aliens."

In Noem, last fall, that holding was relied on in parts of Justice Kavanaugh's concurrence explaining his vote in favor of the stay of the district court's injunction. That led some to treat Justice Kavanaugh's opinion as the source of that approach, although I think it goes back to 1975 and Justice Powell's opinion for the Court in Brignoni Ponce (which was joined by Justices Marshall and Brennan, among others). And although this isn't a post specifically about Justices Alito and Thomas, it's perhaps worth flagging (given their dissent on Monday in Carter) that we can't be sure that they agreed with Justice Kavanaugh's reliance on Brignoni Ponce for the stay in Noem, but that it seems at least plausible to surmise that they did.

The broad question I want to flag is whether there is a principled basis for saying that the color-blind Constitution forbids use of race in the Fourth Amendment seizure test in Carter, but that it allows use of race in Fourth Amendment doctrine in determining if there is cause to seize someone in a case like Noem. And consider the flip side of it, too: Is there a principled basis for saying that the color-blind Constitution allows use of race in the Fourth Amendment seizure test, but that it forbids use of race in Fourth Amendment doctrine in determining if there is cause to seize someone? More broadly, does the answer to whether the doctrine can account for race, and derive different answers based on race, have to be the same in these two doctrinal contexts?

Landor v. Louisiana Department of Corrections and Public Safety is an unexpectedly significant case. I thought this was going to be another unanimous religious liberty case like Holt v. Hobbs or Tanzin v. Tanvir, where the conservatives and liberals unite to rule for a non-Christian plaintiff. (Ramirez v. Collier was 8-1, with only Thomas in dissent.) My prediction about Landor was very wrong. The final vote was 6-3. Justice Gorsuch wrote the majority opinion for the six conservatives, ruling against the Rastafarian whose dreads were cut off. Justice Jackson wrote the dissent for the three liberals, finding that RLUIPA permits monetary damages against the prison guards.

As I read through opinion, and thought about the assignments so far, I speculated that something changed. I think Justice Jackson may have been assigned the majority opinion, with Justice Gorsuch in dissent, and the vote flipped at some point after the transgender sports cases were argued. Here is my evidence.

First, in the November sitting, nine cases were argued. Justice Gorsuch had two majority opinions (Landor and Rico), while Justice Jackson had none. Justice Barrett had two related cases (Fernandez and Rutherford), while Justice Kavanaugh had none. I can see the Chief Justice giving Justice Jackson the majority opinion to signal how the Court is unified on a religious liberty case. Moreover, Justice Gorsuch has seven majority opinions for the term, more than anyone else.

Second, all of the other November cases were decided at least a month ago. Justice Gorsuch's majority opinion in only 18 pages, compared to Justice Jackson's 33 page dissent. There were no other separate writings. A majority opinion of this length should have been ready some time ago, not the penultimate week in June. Something has been in the works.

Third, Justice Jackson's dissent gives off a majority opinion vibe. She has a lot of detailed historical research that may not have been needed in a dissent. It is also, as noted above, nearly twice as long as the majority opinion. Jackson also responds to the majority opinion in footnotes. That seems backwards, as usually the majority opinion comes first. These opinions, I think, were written outside the usual sequence.

Fourth, Justice Gorsuch's majority opinion connects RLUIPA with the pending Tile IX case:

On Mr. Landor's theory, Congress could require coaches at universities that receive federal funds to permit transgender athletes to play women's sports—or face personal liability in suits for damages.

Justice Jackson points out that this line relates to West Virginia, which was argued in January.

The majority warns that, if RLUIPA's individual-capacity damages provision is constitutional, Congress could subject college coaches to liability if they refuse "to permit transgender athletes to play women's sports," or make doctors personally liable if they "administe[r] certain vaccines to children." Ante, at 13. What the majority intends by these examples is not clear. Congress could of course impose these conditions on the colleges and medical practices themselves, assuming they receive federal funds and the laws are otherwise constitutional and not coercive.[FN11]

[FN11] 11A Title IX case currently pending before us asks whether Congress imposed the majority's first "hypothetical" condition on federally funded educational institutions. See West Virginia v. B. P. J., No. 24–43.

I wonder if something is brewing in the Title IX case that helped flip Landor? Maybe Justice Gorsuch recognized that allowing damages under RLUIPA could allow the transgender athletes another way to sue coaches. My guess is that sometime after January, the majority flipped. That chronology would make sense of the timing for an end-of-June drop.

Fifth, I can see how Gorsuch persuaded several of his colleagues to jump ship based on the merits. One of the most consistent projects of the Roberts Court is to constrain causes of action. Just this term, the Court clawed back on causes of action in Exxon and Saba, plus there is a Bivens case on the docket for next term. Viewed in that context, Landor makes sense: Congress should make explicit to prison officials that they are subject to monetary damages. Moreover, for the first time since NFIB, the Court has imposed limits on Congress's spending power and the Necessary and Proper Clause. Last week in Hemani, Justice Thomas wrote that "It has now been 26 years since a party has received relief in this Court based on a Commerce Clause challenge." Yet only a few days later, a party has received relief based on the Spending Clause and the Necessary and Proper Clause. I can see how Justices Barrett and Kavanaugh could find this enterprise worth pursuing. Why did the Chief jump ship? Maybe he is still feeling some pangs of regret about NFIB. (I am still not over the case). Justice Jackson jabs the Chief hard on this point:

Taking this wisdom to heart, the Court usually exhibits a well-founded "reticence to invalidate the acts of the Nation's elected leaders." National Federation of Independent Business v. Sebelius, 567 U. S. 519, 537–538 (2012) (opinion of ROBERTS, C. J.). In my view, an ill-formed analogy to contract law is a regrettable basis on which to turn reticence into enthusiasm.

I will have a lot more to say about Landor. This might be the most important enumerated powers case since NFIB.

Yesterday, in Make the Road New York v. Mullin, a divided panel of the U.S. Court of Appeals for the D.C. Circuit vacated a district court's stay blocking the Department of Homeland Security from applying "expedited removal" processes more broadly. Judge Walker wrote the opinion for the court. Judge Rao concurred in part and concurred in the judgment. Judge Wilkins concurred in part and dissented in part. Given the subject matter of this case, and the panel's composition, I suspect Make the Road will seek en banc review, and that there's a strong chance such a petition will be granted, as the full D.C. Circuit is significantly more liberal than this panel.

Judge Walker's offered this summary at the start of his opinion:

Thirty years ago, Congress created a new process for deporting illegal aliens. It is called "expedited removal." Unlike other statutorily required procedures that can take years to complete, expedited removal often takes just a few days.

At issue here is the provision allowing the Secretary of Homeland Security to designate certain aliens already in the country for expedited removal. Congress excluded many people from that provision. Any aliens admitted or paroled are excluded, even if they are here illegally. So too is anyone who can prove he has lived here — legally or illegally — for at least two straight years.

6/24/2013: Fisher v. University of Texas at Austin I is decided.

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Today was a busy day at the Court. The Justices handed down five opinions, though none were major. I've read Cisco, Exxon, and Pung. I'll finish the other two later. Here, I'd like to venture authorship predictions for the outstanding cases. These guesses are worth what you paid for them. (And unlike an increasing number of tenured law professors, I do not charge a subscription fee for my blog posts.)

Let's go sitting-by-sitting.

Ten cases were argued in the October sitting and all ten were decided. Justice Jackson had two opinions, and the other Justices each had one.

Nine cases were argued in the November sitting and all nine were decided. Justices Kavanaugh and Jackson had none. Justices Gorsuch and Barrett each had two.

Eight cases were argued in the December sitting. Five of those cases were already decided, and Hamm v. Smith was DIG'd. Two cases remain outstanding: Trump v. Slaughter and NRSC v. FEC. So far, Justices Thomas, Kagan, Gorsuch, Barrett, and Jackson have written for December. The Chief Justice and Justices Alito, Sotomayor, and Kavanaugh have not yet written. In May, I speculated that Justice Alito lost the majority opinion in Hamm. I predict that Chief Justice Roberts has Slaughter and Justice Kavanaugh has NRSC. I do not think Justice Sotomayor has an opinion from the sitting.

Seven cases were argued in the January sitting. Three of those cases were authored by Justices Thomas, Sotomayor, and Jackson. Four cases remain outstanding, and they are all huge. First, I am reasonably confident Chief Justice Roberts will write Cook. This is the sort of case he will certainly keep for himself. But now that Jerome Powell is no longer Chairman of the Fed, Cook seems must less hot. I suspect one Justice will write a single opinion for both Little v. Hecox and W.V. v. B.P.J. My best guess is Coach Kavanaugh, who has a special interest in female athletics, or Justice Barrett, who was a direct beneficiary of Title IX. The one wildcard will be if Justice Kagan, who was sympathetic to traditional view of Title IX, finds a way to write some narrow majority opinion that convinced the Chief. Kagan only has five majority opinions for the term, while Sotomayor and Jackson both have six. Kagan is due for a big one. Justice Gorusch wrote Hemani, but I don't think he also writes Wolford. Gorsuch is already at seven for the term. My guess is that whoever doesn't write the transgender sports cases will write Wolford.

Seven cases were argued in February. All seven cases were already decided. Chief Justice Roberts and Justice Jackson did not write from that sitting.

Eight cases were argued in March. Five were already decided. So far, Chief Justice Roberts, and Justices Thomas, Alito, and Barrett have not written for March. Once again, I think Chief Justice Roberts will keep Trump v. Barbara for himself. This case is too important to give up. Watson v. RNC considers whether late-arriving ballots can be counted. If the Court affirms the Fifth Circuit, I think Justice Alito has the opinion; if the Court reverses the Fifth Circuit, Justice Barrett will have the opinion. Mullin v. Al Otro Lado concerns aliens who are detained on the Mexico-side of the border and seek asylum. I suspect Barrett or Alito--whoever does not write Watson--will have Watson.

Nine cases were argued in April, and six were already released. Justice Alito, Kagan, and Kavanaugh have not yet written for April. The three outstanding cases are: Monsanto, Chatrie, and Mullin v. Doe. These assignments are a bit tricky to make since I am not sure how these cases will turn out. When Monsanto was argued, I thought it would be tough for the chemical company to count to five. Alito and Kavanaugh are solid votes for preemption. If they have the majority, then Roberts and/or Barrett voted for preemption. But if not, Kagan has the majority opinion. Chartrie is a Fourth Amendment case about geofences. I could see Kagan or Kavanaugh getting this case as well. And Doe concerns suspension of Temporary Protected Status for Haitians, Syrians, and other groups. I could see Kagan or Kavanaugh getting this one. Then again, the Haitian plaintiffs have asked the Court to DIG this case, so someone may have lost a majority opinion. I think a DIG is unlikely. The SG replied that the newfound documents do not concern the issue at play in this case. Moreover, these documents are not blockbusters like the submissions in the 2020 census case. The records seem to show (shockingly!) that political appointees make policy decisions. This basic point may upset those in the Deep State, but reflects a reality of governance. See Slaughter.

Let's see what Thursday brings.

In a previous post, I outlined some of the many reasons why today's Supreme Court decision in Pung v. Isabella County, allowing below-market value compensation for tax foreclosure takings is wrong. The Takings Clause of the Fifth Amendment requires "just compensation" and giving owners far less than the property's fair market value doesn't measure up. Here, I add an additional point: The problem with fair market value compensation is not that it is too much, but that - all too often - it is actually too little. This isn't just my idiosyncratic view. It's a common criticism of current takings doctrine by scholars across the political spectrum.

I noted that critique in the amicus brief I filed in Pung on behalf of myself, the Cato Institute, and a group of property and takings scholars, and covered it in more detail in Chapter 8 of my book my book The Grasping Hand: Kelo v. City of New London and the Limits of Eminent Domain. Here's a summary from a 2021 nonacademic article I wrote on the subject:

The Fifth Amendment specifically mandates that owners receive "just compensation," which the Supreme Court has long interpreted as the "fair market value" of the property. In reality, however, studies show that most owners get less than that, especially less affluent owners. That is true of both takings by state and local governments and takings conducted by federal government, such as those for President Trump's border wall. Under administrations of both parties, the Department of Homeland Security has a history of low-balling property owners.

Even full fair market value is often not enough to fully compensate owners for their losses. Many people value their property above what they could get for it on the market. Consider, for example, homeowners and small businesses who have been in the same location for years, and have longstanding relationships with friends, neighbors and customers in the area. Nonprofit institutions such as churches and other houses of worship also often have great value that goes beyond the market price of the land they sit on. Such "subjective value" is often left uncompensated when property gets condemned, even if the owners get the full market value of the land. That's true even in some cases in which the government takes only part of the owner's property, as when it seizes land to build a road or a border barrier that cuts through the owner's lot, thereby impairing his or her use of the rest of the property.

As I note in the article and elsewhere, figuring out how much more compensation governments should pay beyond fair market value is often a difficult task. In many situations, it may be so difficult that fair market value is the least bad available option. In addition, there are dangers of overcompensation, as well as undercompensation. If you pay too much, you might even get situations where - perversely - property owners actually lobby to get their property condemned.

Nonetheless, fair market value compensation is often actually far too little; and standard compensation processes often fail to get property owners even the value that the fair market value test is supposed to require. That state of affairs makes the Supreme Court's decision in Pung even more indefensible.

According to reports, Kannon Shanmugam dropped out of arguing T.M. v. University of Maryland Medical System Corporation to focus on arguing Cisco Systems v. Doe. As things turned out, Elizabeth Prelogar subbed in for T.M., but lost the pro bono case. And Kannon won, big league. Cisco will be pleased.

Cisco is a major case that effectively slams the door shut on possible liability under the Alien Torts Statute. Businesses will no longer need to decide between providing lucrative settlements or rolling the dice on devastating litigation. But even more importantly, this ruling sends a clear signal to lower courts, including the Ninth Circuit: Bivens is on borrowed time. The Court stated the issue plainly:

While our cases at one time permitted courts to provide redress if Congress remained silent, "we have since rejected the practice of fashioningrights of action as we see fit," FS Credit Opportunities Corp. v. Saba Capital Master Fund, Ltd. (2026). That is so because "[h]ome-grown causes of action are difficult to reconcile with 'the Constitution's separation of legislative and judicial power.'"

Fittingly, yesterday the Court granted Nielsen v. Watanabe, a Bivens case from, you guessed it, the Ninth Circuit. Cisco may have closed the door. Nielsen will hermetically seal the door across the board.

Let's start with the vote count, which is a bit quirky. Justice Barrett's majority opinion has six solid votes. There is no daylight between the Court's conservatives on this issue. Justice Sotomayor wrote a full-throated dissent. Justice Jackson wrote separately, joined by Justice Kagan. I am a bit confused with how to score Jackson's vote. The syllabus said Jackson "filed an opinion concurring in part and dissenting in part." But the separate writing begins "concurring in judgment in part and dissenting in part." I remain confused how a Justice can concur in "part" of a judgment. The Court issues a single judgment: affirm or reverse. Those judgments cannot be split into parts. The choice is binary: affirm or reverse. Still, a search reveals that is fairly common for a Justice to concur in part of a judgment.

In Cisco, Jackson agreed to reverse and remand the case to the Ninth Circuit because Cisco was not liable under the Torture Victim Protection Act. She wrote:

I therefore concur only in the judgment as to the majority's TVPA holding.

But Jackson would not have remanded the case under the Alien Tort Statute, since she agrees with Justice Sotomayor.

I agree with JUSTICE SOTOMAYOR's discussion of the Alien Tort Statute.

No matter how you slice it, Jackson voted to reverse and remand the case back to the Ninth Circuit. That is a reversal. Jackson should have said something to the effect of "concurring in part, dissenting in part, and concurring in judgment." Jackson's labeling strikes me as an effort to create some confusion over how she actually votes. There were some similar attempts to obfuscate the labelling in San Francisco v. EPA and Department of State v. Munoz.

Onto the merits. This is the sort of opinion where Justice Barrett can shine. It might be her best writing since CASA last term. Professor Barrett clearly thought about implied causes of action before she joined the bench. Moreover, unlike with Employment Division v. Smith, Barrett is proud to say how much she agrees with Justice Scalia. Now Barrett can elevate separate writings from Scalia, as well as Thomas, Gorsuch, and Kavanaugh to majority status. Justice Sotomayor expresses her palpable frustration with this sub silentio overruling of Sosa v. Alvarez-Machain (2004).

The Court nonetheless closes the courthouse doors not just to respondents, but to virtually every future litigant seeking redress for a violation of international law under the ATS. It thus overrules Sosa, without even acknowledging that it is doing so. Today's decision marks yet anotherlow point in this Court's esteem for its precedents. . . . . The majority instead turns down a different road, one paved not with the opinions of the Court, which are the law, but with the opinions of individual Justices, which are not. . . . These five opinions, however, are not, and never have been, the law.

The vote in Sosa was 6-3. Justice Souter kept Justices O'Connor and Kennedy on board by writing a narrow opinion that at least left the door opinion to recognizing new causes of action in the future. My general rule of thumb is that a precedent loses stare decisis value when all members of the Court's majority have left the Court. Since Justice Breyer's departure, the remaining Sosa majority was reduced to a null set. Perhaps the doctrine may be extended if a Justice's clerk becomes a Justice, as is the case for Justices Gorsuch, Kavanaugh, Barrett, and Jackson. But, as they say, stare decisis is not an inexorable command.

Barrett also uses some nice turns of phrase. She refers to "judicial creativity," a term I have used before. And she smacks down the dissent's lack of "judicial humility":

The dissent is confident about the ability of federal courts to "improve foreign relations" and make judgments that are "'consonant with U. S. foreign policy interests.'" Post, at 16 (opinion of SOTOMAYOR, J.). The Constitution's allocation of power, however, requires greater judicial humility.

Justice Sotomayor tries to return the volley, but she doesn't clear the net:

The majority urges "judicial humility" when it comes to matters of foreign affairs. Ante, at 9, n. 1. True judicial humility, however, is following precedent and respecting the wisdom of the jurists who precede us.

Ah yes, the "jurists of wisdom," including Justices O'Connor, Kennedy, and Souter who wrote Casey. That argument is not going to work. The entire notion of creating new causes of action is the antithesis to humility. These "jurists of wisdom" are injecting the judiciary into foreign disputes. It can never be humility to defer to judicial arrogance.

Today, the Supreme Court issued a terrible Takings Clause decision in Pung v. Isabella County. It's the worst Supreme Court takings decision in a long time, and perpetuates the Court's tradition of issuing awful property rights decisions on June 23 (which is the anniversary of Kelo v. City of New London). The ruling is unanimous, albeit with a concurring opinion by Justice Thomas, joined by Gorsuch, which is really more of a dissent.

Isabella County, Michigan seized the late Timothy Pung's house because he supposedly failed to pay some $2200 in taxes and fees (his estate claims he didn't actually owe anything). They then sold the property at auction for about $76,000; the County kept the $2200 it thought was owed and transferred the remaining funds (about $73,800) to Pung's estate. But the County had earlier appraised the value of the property at $194,400 and the winner of the auction resold the home for $195,000. That's strong evidence the auction price undercompensated the Pungs, and the County failed to pay the "just compensation" required by the Takings Clause of the Fifth Amendment.

In Tyler v. Hennepin County (2023), the Supreme Court unanimously ruled that "home equity theft" (the use of tax foreclosure auctions to take more than the owner owed) is a taking, and emphasized "[t]he principle that a government may not take more from a taxpayer than she owes." Nonetheless, today, in an opinion by Justice Samuel Alito, the Supreme Court ruled that owners whose property is taken by tax foreclosure are only entitled to the difference between the auction price and what they owed in delinquent taxes. This goes against the longstanding principle that "fair market value" is the standard for just compensation, and that the compensation is based on what the owner lost, not what the government gained.

Justice Alito cites two major justifications for the decision: that longstanding precedent supports it, and that a contrary ruling "would impose unprecedented burdens on jurisdictions that wish to collect unpaid taxes and might well make tax sales impractical" because local governments might end up suffering a "net loss" from foreclosure auction sales that sold for significantly less than fair market value.

Both of these arguments are badly flawed. None of the precedents Alito cites actually holds that fair market value compensation isn't required. None of them even addresses that issue. They all simply state that, under the Takings Clause or (in some cases) various federal and state statutes, the owner of the property is entitled to the surplus value obtained at the foreclosure auction beyond what he or she owed in delinquent taxes. They do not consider whether, in some cases, the Takings Clause actually requires more than that.

The only case cited by Alito that rejects fair market value compensation at all is BFP v. Resolution Trust Corp. (1994). But that ruling is not about the Takings Clause (which isn't even mentioned in the Court's opinion). It construes the meaning of "reasonably equivalent value" under the federal Bankruptcy Code. Significantly, BFP doesn't even involve a tax foreclosure, but one for an unpaid mortgage. Such a foreclosure likely doesn't qualify as a taking at all, because it is the creditor, not the government, that has the right to foreclose in such cases.

Justice Alito largely ignores the vast body of precedent indicating that "fair market value" is the usual standard for "just compensation" and that the proper measure is what the owner has lost, not what the government gains. For details, see the amicus brief I submitted on behalf of the Cato Institute, and a group of property and takings scholars, including myself.

He does claim that fair market value is generally the standard only in "eminent-domain cases." But there is no justification for this arbitrary limitation. Indeed, Knick v. Township of Scott (2019), the case he cites for this proposition, is actually a regulatory takings case where the government did not initiate any eminent domain proceedings, because it claimed there was no taking at all.

Yet another error in the majority opinion is its perpetuation of the myth that the Supreme Court incorporated the Takings Clause against the states in 1897. In reality, as discussed in Chapter 2 of my book The Grasping Hand: Kelo v. City of New London and the Limits of Eminent Domain, the Court did not incorporate the Clause at that time, and only later retroactively claimed that it had done so. This matters for the present case because tax foreclosures are almost always conducted by state and local governments. The lack of incorporation in the 19th and early 20th centuries helps explain why there were no Fifth Amendment Takings Clause decisions requiring fair market value compensation at that time.

Justice Alito notes (correctly) that precedent holds that fair market value need not be the standard '[W]hen market value has been too difficult to find, or when its application would result in manifest injustice to owner or public." Tax foreclosure sales rarely, if ever, fall in the former category, given that local governments that impose property taxes regularly appraise property in their jurisdiction (as happened in the Pung case itself).

Alito contends requiring fair market value compensation would be unjust because a delinquent property owner could potentially sell for fair market value before a foreclosure occurs, and because requiring fair market value compensation might render tax foreclosure auctions "impractical." Both theories are wrong.

A property owner facing foreclosure may not have the time or means needed to sell for fair market value. Moreover, there is often uncertainty about whether the foreclosure will actually occur, or whether a deal with the government can be worked out. Regardless, the fact that the owner might have been able to sell the property before the government takes it in no way vitiates the government's constitutional obligation to pay full compensation.

As detailed in our amicus brief (pg. 18), and others, states have a variety of options for structuring foreclosure auctions in ways that avoid the problem of net losses. For example, they can simply mandate a minimum auction bid equal to fair market value, or close to it.

If states cannot find a way to structure tax foreclosure auctions without often suffering net losses, that's a sign that those auctions are unjust and unconstitutional, and they should find some other way to deal with property tax delinquencies - or find some other way to fund local government. As Justice Thomas points out in his concurring opinion:

The County [claims that] if it is not able to take people's homes and sell them at auction in the manner that it did here, it will not be able to efficiently collect taxes. It argues that a fair-market-value rule would impede "the government's ability" to foreclose on homes in order to collect delinquent taxes…

In my view, that is the point of the Takings Clause, which necessarily prioritizes homeowners' property rights over the government's interest in efficiency and public necessity. "William Blackstone wrote that 'the law of the land . . . postpone[s] even public necessity to the sacred and inviolable rights of private property.' " Kelo, 545 U. S., at 505 (THOMAS, J., dissenting) (quoting 1 Blackstone 134–135). Whatever utilitarian desire the State may have for a tax-collection system that effectively confiscates citizens' homes based on small tax debts, citizens such as the Pungs have an antecedent and higher right to those homes.

Exactly so.

Speaking of Thomas's concurring opinion (joined on most points by Justice Gorsuch), it is really more of a dissent. Justice Thomas agrees with the majority that tax foreclosures need not always require fair market value compensation. But he also emphasizes that "Just compensation generally requires paying fair market value. Regardless of when exactly the history of tax foreclosure sales can justify a departure from that rule, my initial impression is that it cannot do so in this case." He goes on to point out that foreclosure auction rules historically required the government to first try to seize personal property to pay off a delinquent tax debt, and then - if that fails - try to settle the debt by taking only part of the owner's land, instead of all of it. He also emphasizes the vast discrepancy between the assessed market value of the Pung property and what the estate received from the proceeds of the foreclosure auction. He concludes that "[w]hat Isabella County did to the Pungs was wrong, and, on my initial view, likely unconstitutional."

Given these points, it seems like Thomas (and Gorsuch) believe the Pung estate deserves to prevail in this case, not the County. They should have just dissented. They nonetheless concur in judgment, possibly because the majority opinion does not rule for the County outright, but rather vacates the lower court decision and remands for further proceedings.

In addition to rejecting the Pung estate's Takings Clause argument, the Court also rejects the argument that foreclosure violated the Excessive Fines Clause of the Eighth Amendment. The Court does not decide the issue of whether the foreclosure procedure was sufficiently "fair" (a question much-discussed during oral argument). That will, presumably, be considered on remand.

But, regardless of what might happen in this specific case after remand, today's decision is a terrible mistake that is likely to perpetuate abusive and unconstitutional tax foreclosure auctions. As noted in our amicus brief, such abuses are particularly likely to victimize elderly, disabled, minority, and legally unsophisticated property owners.

NOTE: The Pung estate is represented by the Pacific Legal Foundation, a public interest law firm which is also my wife's employer. She, however, is not one of the attorneys on the case. The estate is also represented by other attorneys.

6/23/1987: South Dakota v. Dole is decided.

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Today, in In re Grand Jury Subpoenas, the US District Court for the District of Minnesota invalidated several federal grand jury subpoenas issued against Minnesota state and local government officials, including Governor Tim Walz, and Minneapolis Mayor Jacob Frey. Federal District Judge Patrick Schiltz (a Republican George W. Bush appointee) ruled that the subpoenas were part of an unconstitutional effort to coerce Minnesota state and local government's into giving up their immigration sanctuary policies - which limit assistance to federal efforts to deport migrants. It was part of a broader effort at coercion arising from "Operation Metro Surge," which deployed some 3000-4000 federal agents to Minnesota, in part to pressure state and local officials.

Here's an excerpt from the ruling:

On January 20, 2026, six federal grand-jury subpoenas were served on the record custodians for (1) the Minnesota Governor's office; (2) the Minneapolis Mayor's office;
(3) the St. Paul Mayor's office; (4) the Minnesota Attorney General's office; (5) the
Ramsey County Board of Commissioners; and (6) the Hennepin County Board of
Commissioners. Broadly speaking, the subpoenas require the production of records
relating to enforcement of federal immigration laws going back to January 1, 2025.

This matter is before the Court on six motions to quash the subpoenas….

A subpoena may be quashed if its "dominant" purpose is improper, even if it was issued partly for valid reasons. United States v. Wadlington, 233 F.3d 1067, 1074 (8th Cir. 2000)….

The moving parties argue that the subpoenas should be quashed for a number of
reasons. The Court need address only one of those reasons: the moving parties'
contention that the subpoenas were issued as part of an unconstitutional effort to coerce
Minnesota officials into assisting the federal government with enforcing civil
immigration laws and to harass and retaliate against them for failing to do so. The
Court agrees with the moving parties….

Under the Tenth Amendment's "anti-commandeering" rule, the federal government may not" command the States' officers, or those of their political subdivisions, to administer or enforce a federal regulatory program." Printz v. United States, 521 U.S. 898, 935 (1997)…. Nor may the federal government coerce or retaliate against states or political subdivisions who decline to help the federal government enforce federal laws. See Nat'l Fed'n of Indep. Bus. v. Sebelius, 567 U.S. 519,578, 581 (2012) (plurality opinion) (explaining that the federal government may not "indirectly coerce[] a State to adopt a federal regulatory system as its own" and finding that the threat of withholding existing Medicaid funds to induce states to accept the Medicaid expansion was an impermissible "gun to the head")…. This is as true in the context of immigration enforcement as it is in the context of other federal regulatory programs….

Initiating a criminal investigation in order to harass political opponents or to coerce them into taking official action-particularly official action that the federal government cannot directly require those political opponents to take-is a blatantly unlawful and unethical use the grand-jury process…. The only question, then, is whether the challenged subpoenas were issued for one of these forbidden purposes.

The Court has no doubt that they were. On the one hand, the evidence that the challenged subpoenas were issued for unlawful reasons is overwhelming. On the other hand, the Department has struggled-without success-to identify a single plausible investigatory justification for the subpoenas….

The rest of the opinion recounts extensive evidence indicating that commandeering was a major motive for the federal government's actions, and explains why there was no legitimate purpose for them.

I agree with Judge Schiltz's reasoning. In previous articles in Lawfare and the Brennan Center State Court Report, I have explained why other aspects of Operation Metro Surge - the use of paramilitary violence and numerous illegal tactics against state and governments and protestors - also violate constitutional constraints on commandeering. And I have long emphasized these rules protect conservative "gun sanctuaries" no less than liberal immigration sanctuaries. If the federal government can sue armed coercion and bogus subpoenas to pressure states and localities into abandoning policies the White House doesn't like, it would severely undermine our system of constitutional federalism.

Ironically, the anti-commandeering doctrine was first developed and articulated in a series of Supreme Court decisions written and supported primarily by conservative justices like Antonin Scalia and Samuel Alito. Since then, it has become a key bulwark protecting liberal sanctuary cities and states. This is one of many ways in which judicial enforcement of structural limits on federal power is valuable to people across the political spectrum.

This decision is likely to be appealed. Hopefully, appellate judges will affirm the district court's sound ruling.

From FIRE (the Foundation for Individual Rights and Expression) today:

In a win for press freedom rights and free expression, the city of San Francisco and state of California have agreed to settle a lawsuit over the public's ability to discuss sealed arrest records.

The settlement, entered by the court last week, ensures that journalists and advocates who reported on a tech CEO's sealed arrest records will not face monetary civil penalties. But the law — which is so flimsy that state and city officials did not even try to defend it — remains on the books, and the Foundation for Individual Rights and Expression and the First Amendment Coalition are calling on California's legislature to rescind it.

"California had no business passing an unconstitutional law that banned the press and public from reporting on matters of public concern," said FAC Director David Loy. "While the defendants in this case properly declined to defend it, it should be taken off the books to prevent others from weaponizing it in the future."

In the fall of 2024, the San Francisco City Attorney's Office sent three letters demanding that journalist Jack Poulson and Substack remove reporting on a sealed report documenting the arrest of a tech CEO, Maury Blackman. When those efforts stalled, Blackman sued Poulson and Substack in a separate lawsuit, which he is now appealing. (FIRE filed a friend-of-the-court brief in that action.)

The city cited California Penal Code § 851.92(c), which prohibits anyone from publishing a sealed arrest report or sharing any information "relating to" the report, under threat of a $1,500 civil penalty. This means that anyone who has a copy of a report or simply knows about an arrest — whether they learned of it from a source or were themselves a victim or witness — is legally banned from sharing what they know if a court seals the report.

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When ChatGPT first hit the mainstream in 2022, I realized that law school assessments would need to change. At the time, I asked my ConLaw students what they thought about oral exams, like in ancient times. Their immediate reaction was one of absolute panic and dread. At the time, I didn't pursue the matter further. My exams were proctored in class, and used locked-down laptops, so I didn't think it was feasible for students to use AI during the proctoring.

Four years later, things have changed. I've watched many YouTube videos of how students expertly cheat on exams using AI. They place vaseline or some other agent in front of their webcam, take pictures of the question with their phones or smart glasses, and provide perfect answers. The situation is even worse with any sort of take-home work. The temptation for students to provide perfect answers every time is too high. Indeed, a student who doesn't use AI is putting herself at a disadvantage.

Some professors have responded to this trend by embracing AI. They encourage their students to use it "responsibly" (whatever that means) and to show their prompts and other searches. I, for one, remain an AI luddite. I assure all of my readers that every word I write comes from my brain, without the use of generative AI. Generally, I write a post straight through without pauses, and then go back to clean it up. (My typos are proof that I don't use AI.) Unfortunately, Google now pushes AI to the top of every query, though I always click through the links and check primary sources. I never trust the Gemini summary.

I would highly recommend a memo prepared by Dean Bobby Chesney at the University of Texas. Chesney relays a number of issues his faculty has considered concerning AI. In particular, Chesney writes that "we've also seen a surge of interest in assessments involving class participation and live presentations (even oral exams in some cases)."

I have come to much the same conclusion. My tentative plan for ConLaw in the spring is to switch to an oral, in-person midterm.

Taking a step back, I have long struggled with how to use midterms effectively. The most useful aspect of a midterm is to provide an early intervention--feedback for students who need help. But by the time the midterm is graded, it is often too late in the semester to correct course. (I do not give multiple choice questions in ConLaw, though that format would make it far easier to grade quickly.) When I started teaching, I would proctor the midterm right before spring break, and then spend the entire spring break grading midterms, and return them when we got back. Needless to say, with family commitments, that is no longer an option. The other problem with midterms is that some students have not yet hit their stride by the seventh week. Indeed, there was not always a clear correlation between grades on the midterm and grades on the final.

All of these concerns remain. Still, in light of the threat to assessments posed by AI, I will need to redouble my efforts. Here is my working approach: halfway through the semester, I will proctor an individualized, oral midterm in my office. Each session will last approximately five minutes. If I do ten sessions per hour, with breaks, I can wrap up the entire process in a single day. There is an advantage to doing everything in a short period of time to reduce the risk of students talking to each other. At my law school, 1Ls do not have classes on Friday, so that timing would work well. In the first instance, I would randomly assign students to slots throughout the day. If they have an actual, documented conflict, they can reschedule. And there will be two weeks of advance notice, which should help reduced potential conflicts.

I will need to give some more thought about how to handle timing for accommodated students. As most professors know, the number of students who have testing accommodations has skyrocketed in recent years. Often accommodations are provided for students who are not able to write with a pen or type with a keyboard--so-called "scribing." But the oral exam eliminates that need. Students would only need to listen and speak.

Students would not be allowed any materials or devices during the sessions. I'll leave a basket (maybe a Farraday box) outside my office to deposit all tech. Some smart glasses can be disguised as regular glasses. I hope this doesn't become an issue.

I would also record and digitally transcribe the entire session, should any disputes arise later. The midterm would not be worth a large portion of the grade. I think all law schools permit professors to vary grades a small amount based on participation. I would make that participation score turn on the performance of the in-person midterm. (I've never figured out how to accurately and consistently record class participation over the course of a semester, so I don't try.)

The substance of the midterm will simulate a final exam, but on a reduced scale. I will circulate five fact patterns to the student in advance. That way students can prepare and will not be surprised. The questions will not be a full-blown fact pattern like the final, but a single paragraph that has embedded a few related ConLaw issues. I will tell students that during the oral midterm, they will pick one of the questions at random, maybe by drawing an index card from a deck.

Students will then have to give a one minute prepared remark answering the prompt--basically the opening statement a lawyer would give during an oral argument. At that point, I can ask a series of follow-up questions to probe different aspects of the answer. I might ask them about a case they mentioned, or ask why they didn't mention a particular case. This would be the sort of Socratic Dialogue I do in class every week. Indeed, I imagine I would use the same questions I pose in class, so there will be fewer surprises.

At the end of the session, I would provide feedback on the spot. I imagine the grade will be a number between 1 and 5, or 1 and 10. I can then point out where they gained and lost points. This feedback would be immediate and personalized. Students usually receive grades on midterms weeks or even a month later, long after they've forgotten what the question was.

Students would be instructed to not talk with their classmates about the exam. I am skeptical of how closely this instruction will be followed. The upshot of providing the questions in advance is that students can work together, or with their Chatbot, to prepare answers. But all of that preparation goes out the window once I start asking followup questions.

Using an oral midterm is sort of an interim solution. The ultimate move would be to make the final exam an in-person oral exam. A challenge is anonymity. While final exams require anonymity, it is less important for midterms. Professors are expected to go over a student's midterm to provide one-on-one feedback. But perhaps as so much of the work students submit is no longer their own, but instead created by AI, eliminating the cloak of anonymity may be the final way to determine what a person actually knows.

As I said above this plan is tentative. (Then again, a blog post I wrote years ago concerning "tentative" thoughts is still being cited as my definitive view.) I welcome thoughts and comments from other professors who have considered these issues.

Today is the 85th anniversary of Operation Barbarossa, the German attack on the Soviet Union, in 1941. Virtually all my then-living relatives were caught up in the war in one way or another. But none more immediately than my grandfather Nathan Firun, who was 17 at the time. This is a shortened version of his story of that time, which he recounted to me in 2011. He hated talking about his experiences in World War II, and only after much effort did I persuade him to tell this story:

Nathan was a graduate of a special military high school in Leningrad, trained as an artillerist. Soon after the fighting began, he enlisted in a "militia" unit of (mostly) untrained civilians. The men were issued Canadian-made rifles left over from World War I, with only five bullets per rifle. When they asked to use one bullet each to test-fire the rifles to make sure they worked, permission was denied, because there were too few bullets to go around. The unit was employed digging trenches behind the lines.

Sometime later, they were required to turn in their weapons, so they could be sent to a unit at the front, where there were men with no weapons at all. Nathan said this was the first moment when he realized the war must be going badly for the Soviet side.

In late August, they were informed their position had been flanked by the Germans, and the men were required to disperse and make their way back to Soviet lines in small groups. After some harrowing adventures, Nathan did indeed evade the Germans and found a Soviet unit. The other soldier with him was not so lucky. He entered a village they passed on their way, and was never seen again. Nathan never knew what happened to him. Perhaps he got killed or was captured by the Germans.

When he returned to Soviet lines, Nathan was detained by the NKVD (the secret police agency later known as the KGB) for the "crime" of "betraying" the USSR by being caught behind enemy lines. He and a large group of other soldiers in similar straits were herded into a barbed-wire enclosure, and would very likely have ended up in a special punishment battalion (or, worse, a Gulag).

Fortunately, an NKVD lieutenant noticed that Nathan had a shoulder patch indicating that he was an artillerist. He came up to Nathan and asked if he really was one and knew how to operate artillery. Nathan said "yes." The NKVD officer then said that they had two antitank guns that had just been brought up and needed to be set up and used to counter an imminent German attack. He told Nathan to gather ten other men from among the "traitors" and undertake the task.

"Where are the shells for the guns?" Nathan asked.

"You're asking me where the shells are?", said the NKVD man, "Go find some yourself!"

Nathan did as he was told, and set up and operated the guns (with the help of several other men released from detention for that task). After some effort, they did indeed find the necessary shells.

The NKVD officer almost certainly knew that Nathan and the other soldiers who had been cut off behind enemy lines weren't actually "traitors." Else he wouldn't have trusted them with artillery pieces. The NKVD was implementing Stalin's awful orders, regardless of how insane and unjust they might be.

In the ensuing engagement, the Germans were repelled, and Nathan was wounded. He ended up in a hospital back in Leningrad, even as the city came under siege. At that point, it became clear that one else in the city knew he had been detained by the NKVD for being caught behind enemy lines. In the chaos of those days, Soviet record-keeping was even more shoddy than usual, and apparently no one had bothered to make any official record of my Nathan's 'crime'. Nathan's father (my great-grandfather), Boris Firun, told him he should keep this story secret, and never tell anyone.

Boris had been detained by the NKVD himself several times in the 1930s, and knew whereof he spoke. One time, he had been arrested for attending a speech by Stalin's rival Leon Trotsky. Even though, at the time of the speech, Trotsky was still a high-ranking Communist Party leader in good standing, the NKVD later pursued anyone who had gone to hear him. Boris managed to persuade them he had not actually gone to the event (though in fact he had).

My grandfather did indeed keep the story secret through almost four years of additional fighting. He eventually commanded an antitank gun battery and won numerous decorations. He did not reveal these events to anyone until he told me the story 70 years later.

There were about 100 men in Nathan's class at the military high school. Only about five to ten survived the war.

Nathan Firun passed away in 2021, at the age of 97. We miss him greatly.

The Supreme Court is likely to decide Trump v. Barbara, the birthright citizenship case, sometime this week or next week. Here is a compendium of links to my many writings about this issue. I have omitted a few that merely link to writings of mine published elsewhere. Except where otherwise noted, all are posts that originally appeared right here at the Volokh Conspiracy blog:

"Birthright Citizenship and the Constitution," Oct. 30, 2018. My very first piece about this issue, written during Trump's first term, when the question first became prominent.

"Legacy Preferences, Citizenship, Migration, and the Implications of a Constitutional Ban on Hereditary Privilege," July 12, 2023. This piece expresses some of the reasons for my ambivalence towards birthright citizenship, given that it is a kind of system of hereditary privilege.

"Birthright Citizenship and Undocumented Immigrants," Just Security, Nov. 25, 2024. An early critique of the then-anticipated Trump second term birthright citizenship policy.

"More on Birthright Citizenship and Undocumented Immigrants," Jan. 7, 2025.

"Trump's Birthright Citizenship Order is Even Worse than Expected - and Even More Blatantly Unconstitutional," Jan. 21, 2025. My initial critique of Trump's birthright citizenship executive order - which was even worse than I expected.

"Federal Court Issues Temporary Restraining Order Blocking "Blatantly Unconstitutional" Trump Birthright Citizenship Order," Jan. 23, 2025. Analysis of the first judicial decision against Trump's order.

"Two Federal Courts Issue Injunctions Against Trump's Birthright Citizenship Executive Order," Feb. 8, 2025.

"Birthright Citizenship - A Response to Barnett and Wurman," Feb. 15, 2025. My critique of a prominent defense of the constitutionality of Trump's order, by Randy Barnett and Ilan Wurman.

"More on Birthright Citizenship and Undocumented Immigrants - Rejoinder to Barnett and Wurman," Feb. 18, 2025. My rejoinder to Barnett and Wurman's response to their critics.

"Trump Administration Asks Supreme Court to Lift Universal Injunctions Against its Birthright Citizenship Order," Mar. 14, 2025.

"A Simple Defense of Nationwide Injunctions," May 16, 2025. The birthright citizenship litigation is an excellent demonstration of why we need nationwide injunctions.

"A Bad Decision on Nationwide Injunctions," June 27, 2025. My critique of Trump v. CASA, Inc., the Supreme Court decision striking down nationwide injunctions in the birthright citizenship litigation. I also note possible alternative ways to secure universal remedies.

"Federal Court Issues Class Action Injunction Against Trump's Birthright Citizenship Executive Order [Updated]," July 10, 2025. Class actions are one possible way to get around Trump v. CASA, Inc.

"Appeals Court Rules Trump's Birthright Citizenship Order is Unconstitutional and Upholds Nationwide Injunction Against it," July 24, 2025. Analysis of important Ninth Circuit decision against the birthright citizenship order.

"Courts are Checking Trump More Effectively than Many Think," Sept. 22, 2025. The birthright citizenship litigation is one key example of this broader phenomenon.

"First Circuit Rules Trump's Birthright Citizenship Executive Order is Unconstitutional," Oct. 4, 2025. Analysis of another decision against the the birthright citizenship order.

"Slavery and Birthright Citizenship," Mar. 2. 2016. Why the Trump administration's position on birthright citizenship is incompatible with the main purpose of the Citizenship Clause of the Fourteenth Amendment.

"Slavery and Birthright Citizenship," Lawfare, Mar. 16, 2026. My most comprehensive explanation of why the Trump administration's position on birthright citizenship is incompatible with the main purpose of the Citizenship Clause of the Fourteenth Amendment: Giving citizenship to freed slaves and other Blacks. Much expanded version of the earlier VC post of the same title.

"Justice Barrett, Slavery, and Birthright Citizenship," Apr. 1, 2026. Analysis of a key moment in the Supreme Court oral argument in Trump v. Barbara.

"Birthright Citizenship as a Second-Best Policy," Apr. 4, 2026. While I oppose Trump's efforts to deny birthright citizenship children of undocumented immigrants on both legal and moral grounds, I do not believe birthright citizenship is actually the ideal policy. It is a second-best option, at best.

Employment Division v. Smith was decided in 1990. Three years later, RFRA was enacted. Amy Coney began law school at Notre Dame in 1994. City of Boerne v. Flores was decided in 1997. In Flores, Justice Scalia offered a full-throated defense of his Smith opinion. In 1997, Coney also graduated from law school. In OT 1998, she clerked for Justice Scalia. In a 2008 article in the Notre Dame Law Review, Professor Barrett discussed Smith, RFRA, and Boerne.

In Employment Division v. Smith, 494 U.S. 872 (1990), the Supreme Court held that the Free Exercise Clause did not bar the application of neutral, generally applicable laws to religious practices. See id. at 885. RFRA, which attempted to restore the pre-Smith understanding that state actors cannot burden the free exercise of religion in the absence of a compelling interest, was a "direct response" to this decision. See Boerne, 521 U.S. at 512. The Court held RFRA unconstitutional on the ground that Section 5 of the Fourteenth Amendment does not grant Congress the power to define what the Constitution requires, as opposed to the power to remedy violations of it. See id. at 519.

Amy Coney Barrett, Introduction, 83 Notre Dame L. Rev. 1147, 1172 (2008)

In 1991, during Judge Thomas's confirmation hearing, Senator Patrick leahy asked Thomas if he ever "stated whether you felt that [Roe v. Wade] was properly decided or not?" Thomas replied that he did not "recollect[] commenting one way or the other" on Roe v. Wade during law school or in the two decades afterwards. I don't think Barrett could have said the same thing if he was asked about Smith during her confirmation hearing. Barrett clearly thought about Smith. Still, as best as I can tell, Professor Barrett never publicly wrote whether she thought Smith was rightly decided or not. She wasn't a Free Exercise Clause scholar, so that omission is not suprising.

This background brings me to Fulton v. City of Philadelphia (2021). In that case, there were three votes to overrule Smith. But Justice Barrett, joined by Justice Kavanaugh, declined to take that step. Justice Barrett raised a host of questions that might need to be answered were Smith to be overruled. I've yet to meet a single religious liberty litigator who actually thinks Barrett's decision to not overrule Smith was due to those questions.

Rather, the far more likely scenario is that she thought Justice Scalia was right in 2021. She likely came to that conclusion in the 1990s as a student when Smith and Boerne was decided, or while serving as a law clerk for Justice Scalia in 1998, or while serving on the Notre Dame Law faculty. Again, to this day, Barrett's close friend Professor Rick Garnett feels compelled to defend Smith even when there is no credible attack against it.

Now, onto Hunter v. United States. Justice Barrett favorably cited her law review articles to support her judicial belief that the Supreme Court lacks a supervisory power. It's possible that Justice Barrett's views on Smith were wiped away, tabula rasa, upon her confirmation. But I would wager, Justice Barrett's views on Smith were set some time ago and aren't going to change.

From Wednesday's report and recommendation by Magistrate Judge David Fannin (W.D. Tex.) in Flash v. Jeff Davis County, a summary of the allegations in plaintiff's Complaint (recall that, at this point. these are just allegations):

David Flash … is an independent journalist who covers regional events and public affairs in West Texas. In September 2023, Flash's news outlet, the Big Bend Times, published investigative news stories centered around the conduct of multiple County officials. The stories accused the officials of misusing county resources and questionable law enforcement practices.

Flash faced backlash after the stories were published. Defendant Lisa Dennison, an employee for the County Attorney's Office, confronted him and told him he was under investigation. A few months later, an anonymous poster released Flash's mugshots—which were private under a Texas Government Code Chapter 411 non-disclosure order—and characterized him as "not a trusted media source." He later discovered Dennison had been the one who had obtained his mugshots.

Defendant Glen Eisen, Dennison's supervisor, was apparently aware that Dennison had misappropriated Flash's mugshots but did not take disciplinary action. As Flash was beginning to face backlash in Fall 2023, Defendant King Merritt filed a police report detailing an incident with Flash at the County Attorney's Office between Eisen and Flash. Eisen had asked Merritt to arrest Flash for "causing problems at the Jeff Davis County Attorney's Office." Merritt attempted to detain Flash, but Flash left before he could do so and no further action was taken.

On October 20, 2023, Flash returned to the County Courthouse. Defendant Mary Ann Luedecke, a justice of the peace for the County, attempted to detain him after he photographed a sign outside her office. Two days later, Luedecke sent out an alert to regional law enforcement agencies that labeled Flash as a "First Amendment auditor." Luedecke and Eisen also called the District Attorney's Office to warn them that a "First Amendment auditor" was "on the loose."

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