Usually the Supreme Court issues an order list the day after the last opinions are handed down. Today we got the so-called "mop-up" order list a few hours after Barbara dropped. I guess the Justices really wanted to get out of dodge before Independence Day. We should never forget who is really in charge.
First, the Court GVR'd Petersen v. Doe. This case, which concerns the Arizona Save Woman's Sports Act, has been stuck in purgatory for nearly two years. John Sauer, while still in private practice, filed the cert petition in October 2024. Briefing concluded in January 2025. The case was then held until June 23, 2025 for Skrmetti. Then, the case was held until today, June 30, 2026, for B.J.P. And the Court GVR'd the case in light of B.J.P. I can't recall when a petition was held for two terms for two separate merits cases, only to be GVR'd. I am just going to go out on a limb and predict the Ninth Circuit will find a way to distinguish B.J.P. and this case will be stuck in another two years of litigation. A preliminary injunction was granted in July 2023. This case likely will not make it back to the Court until 2028 at the earliest. Justice delayed is nevermind. Speaking of delays…
Second, the Court (finally) granted cert in a pair of cases concerning bans on AR-15s. These cases have been hanging around for a long time. Cutberto Viramontes v. Cook County, a case from Illinois, was initially filed in August 2025. It was relisted 21 times. Per John Elwood it was reslisted "after the Dec. 5, Dec. 12, Jan. 9, Jan. 16, Jan. 23, Feb. 20, Feb. 27, Mar. 6, Mar. 20, Mar. 27, Apr. 2, Apr. 17, Apr. 24, May 1, May 14, May 21, May 28, June 4, June 11, June 18, and June 25 conferences." I can't recall a case that was granted this many times after a relist. (I think there were some cases relisted more followed by a GVR or denial.) Perhaps Wolford was holding this case up? Well, I'm glad we finally get a grant here. Justices Thomas and Scalia dissented on an AR-15 case more than a decade ago. Glad the Justices finally got around to this pressing issue, as millions of Americans had their Second Amendment rights infringed. Good thing we figured out whether marijuana users get to bear arms first! As I'll explain in a new piece, the Second Amendment jurisprudence has had only a marginal effect on gun owners in blue states. This case will actually make a difference. Relatedly, the Court denied cert in NRA v. Glass, which challenges Florida's ban on firearms for 18-20 year olds. (The Florida AG has argued this statute is unconstitutional, so this case is not the best vehicle.)
Third, the Court denied a stay in Perlmutter. The SG's "emergency" application has been pending since November 2025. I suspect the Chief hopes that Slaughter makes this case go away. I'm sure the D.C. Circuit will find a way to distinguish the Library of Congress and the Copyright Office as outside the executive branch.
Fourth, the Court CVSG'd Roybal v. Griffith, which involves sex-based housing and strip searches of transgender prisoners. As the petition notes, the Tenth Circuit ruled that prisons cannot "house a biologically male inmate with unaltered male anatomy alongside male inmates if the inmate expresses a female identity." The court further held that "absent emergencies, male officers cannot search biologically male inmates who self-identify as female." This case strikes me as far easier than B.J.P. I wonder if any female prisoner rights groups file in support of the government here--they should. Moreover, this case might give the Court another shot at revisiting Johnson v. California, which keeps getting cited in the context of affirmative action cases.
Fifth, the Court a pro se petition in Grand v. University Heights. This case presents a recurring issue for Jewish people where the government restricts small congregations to worship in a private home. My organization, the Jewish Coalition for Religious Liberty, filed an amicus brief. Here is how we framed the issue:
This Petition presents a simple but consequential question: may government officials circumvent RLUIPA by burdening religious exercise through denial by delay—via serial continuances, shifting demands, and procedural limbo—while insisting that nothing is ripe for judicial review because they have not yet said "no" in a final vote? The decision below effectively blesses that Kafkaesque regime, allowing officials to block religious use of property and then wield the absence of a formal denial to keep federal courts from hearing the merits at all. That rule is especially dangerous for Muslims, Jews, and other minority faith communities, which have long faced disproportionate resistance in zoning processes that appear neutral on paper but operate as instruments of exclusion in practice. In that setting, delay amounts to more than mere administrative inconvenience. It means missed worship, mounting costs, and the practical denial of the right to use one's own property for religious exercise.
This case may not be high-profile, but could be a significant victory for religious liberty.
The dissent cited Randy's Trump Is Right on Birthright Citizenship and an annotated transcript of John Marshall Harlan's 1897-98 Lectures on Constitutional Law, edited by Brian Frye, Michael McCloskey, and Josh.
Today, I did two TV interviews about the Supreme Court's ruling in the birthright citizenship. They may be of interest to some of our readers. So I am posting links to the videos here.
The first is an appearance on C-SPAN's Washington Journal lasting for over an hour. In addition to the C-SPAN interviewer, I was joined by Zach Shemtob of SCOTUSblog. We began about 15-20 minutes before the Supreme Court started issuing its decisions today, and continued for over an hour in all; in the first part of the show, we talked about some of the issues in the cases, even before they came down. In addition to birthright citizenship, we also discussed and took caller questions about the other three cases decided today (two on transgender athletes, and one on the First Amendment and campaign finance). I thank Zach for his excellent insights.
I am not able to embed the video in this post, for some reason. But it is available at this link.
NOTE: Late in this segment, Zach mentions the NPR report that Justice Alito had announced his retirement. The report turned out to be incorrect, and NPR has retracted it.
I also did a much shorter interview, almost entirely focused on the birthright citizenship case for the Fox 10 TV station in Phoenix, Arizona. I embed the video below. My segment runs from about 5:15 to 13:45:
Today the Supreme Court decided Trump v. Barbara, the birthright citizenship case. A 6-3 majority struck down Donald Trump's executive order denying birthright citizenship status to children of undocumented immigrants born in the United States, and those born to non-citizen parents here on temporary visas. I think the Court got this extremely important decision right. In so doing, they saved hundreds of thousands of people from being subject to deportation - often to a lifetime of poverty and oppression.
The dissenting opinions by Justices Clarence Thomas and Samuel Alito mishandle key points. Most notably, they overlook the reality that their positions would have denied birthright citizenship to large numbers of freed slaves and other Blacks, thus negating the central purpose of the Citizenship Clause of the 14th Amendment.
The Citizenship Clause states that "[a]ll persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside." The Trump administration claims that children of undocumented immigrants and temporary visa-holders are not "subject to the jurisdiction." For many decades, the dominant interpretation of this phrase was that "subject to the jurisdiction" covers all children of parents who are required to obey US law. For example, they can be prosecuted if they commit a crime.
The majority opinion written by Chief Justice John Roberts rightly endorses this approach. It traces this rule back to British traditions of birthright citizenship later adopted by the US:
In 1868, as today, "jurisdiction" (in the context of a sovereign) refers to the "[p]ower of governing or legislating." N. Webster, An American Dictionary of the English Language 732 (C. Goodrich & N. Porter eds. 1865)…. To be "subject to" the jurisdiction of the United States, then, is to "liv[e] under" its "dominion," J. Worcester, Dictionary of the English Language 1435 (1860), a meaning reinforced by the Clause's territorial focus on those born "in" the United States. The Citizenship Clause uses jurisdiction in its ordinary sense—referring to the power of the United States to govern those within its territory….
The scope of that power was well settled in 1868, largely by "the celebrated case" of Schooner Exchange v. McFaddon, 7 Cranch 116…. Expounding on "general principles," Chief Justice Marshall explained that "jurisdiction" referred to "the full and complete power of a nation within its own territories." 7 Cranch, at 136. That "absolute" power was "susceptible of no limitation not imposed" by the nation itself. Ibid. All sovereigns, however, were understood to have impliedly waived their jurisdiction in "certain peculiar circumstances"—in essence, where exercising jurisdiction would "degrade the dignity" of "foreign sovereigns." Id., at 136–137. As in the context of jus soli, those peculiar circumstances arose most frequently in the case of "foreign ministers." See id., at 138–139. "[E]very sovereign would hazard his own dignity," after all, if his officials abroad were made to "owe temporary and local allegiance to a foreign prince." Id., at 139….
The ordinary legal meaning of the text of the Clause thus neatly captures the common law rule, with its broad reach and narrow exceptions. The same groups included (and excluded) by jus soli were included (and excluded) by the conventional understanding of jurisdiction. Excluded by both were the children of foreign ministers and members of 19th- century Indian tribes over whom the United States had ceded a part of its territorial jurisdiction to preserve its relationship with a foreign sovereign (or quasi-sovereign).
No such intersovereign concerns apply to children born of parents unlawfully or temporarily present in the United States….
As the Court points out, this approach was reinforced by the Supreme Court's ruling United States v. Wong Kim Ark (1898), which held that birthright citizenship applies to allchildren of noncitizens born in the United States, with the exceptions of children of foreign diplomats, those born on foreign "public ships" in U.S. territorial waters (which remain under the sovereign authority of their home governments), Native Americans born under the rule of tribal governments, and children of soldiers in invading armies occupying U.S. territory.
I think this is basically right. And it is reinforced by the main purpose of the Citizenship Clause of the Fourteenth Amendment: granting citizenship to then-recently freed slaves and other Blacks. The 1857 Dred Scott decision had ruled that Black people (even those who were not slaves) could never be citizens of the United States. The Citizenship Clause was intended to reverse this terrible decision. As I explained in a Lawfare article, every argument offered by the Trump Administration and its supporters would also have denied citizenship to large numbers of freed slaves, their children, and other Black people.
In a lengthy dissent partly joined by Justice Gorsuch, Justice Clarence Thomas argues that "subject to the jurisdiction" excludes children people who are not "domiciled" in the United States, and undocumented immigrants and temporary visa holders do not have such domiciles. But, as Thomas himself recognizes, the main purpose of the Citizenship Clause was "ensuring that all black Americans, both the newly freed slaves and those who were free before the war, would be treated as citizens of the United States and of the States in which they lived." His domicile theory is at odds with that objective.
As explained in my Lawfare article, many thousands of slaves were brought into the United States illegally after the US banned the slave trade in 1808. If illegal entry is enough to vitiate domicile, these people and their descendants would not - under Thomas's approach - be entitled to birthright citizenship. In the article, I point out this and other related flaws in the domicile theory:
If "domicile" simply means living in the United States, then both slaves and illegal migrants obviously qualify. If it means living in the U.S. legally, then undocumented migrants can be excluded. But the same goes for slaves brought in illegally. And… there were many such illegally transported slaves.
Moreover, to the extent that the Supreme Court has held that "domicile" matters for jurisdiction, it also requires that any legal change of domicile must be voluntary. For example, in a 1989 case involving a conflict between state and tribal jurisdiction over the adoption of Native American children, the Court ruled that "[o]ne acquires a 'domicile of origin' at birth, and that domicile continues until a new one (a 'domicile of choice') is acquired." Nineteenth century jurists held similar views. For example, in the 1890 case of Penfield v. Chesapeake O. & S.W. R. Co., the Supreme Court held that "No length of residence, without the intention of remaining, constitutes domicile" in a case where state jurisdiction over a case turned on residency…. Most, if not all, slaves forcibly brought to the U.S. obviously had no "intention of remaining" but would have preferred to be returned to their original homes. On this theory, undocumented migrants actually have a stronger claim to domicile than slaves did, since the former come voluntarily and generally have every intention of remaining indefinitely.
In sum, either children of undocumented migrants and temporary visa holders satisfy any relevant domicile requirement, or that requirement would exclude all or most slaves and their descendants.
In his separate dissent, Justice Gorsuch raises an additional criticism of Thomas' theory (which explains why he joins Thomas only as to the status of children of temporary visitors):
Perhaps Wong Kim Ark does not squarely foreclose the government's position. After all, that case addressed a child born to parents who lawfully resided in this country. Still, I wonder: Is a child born here to parents who have long chosen to make this Nation their permanent home not a citizen under the Fourteenth Amendment solely because his parents' presence violates statutory law? If those parents are not domiciled here, then where are they domiciled? And if the answer is nowhere, how can we reconcile that conclusion with this Court's longstanding recognition that every person is domiciled somewhere?
This is correct. But worth nothing that slaves, of course, did not choose to make their homes in the US at all.
In a separate dissent, Justice Alito argues that the Citizenship Clause "confers citizenship on only those children who, at birth, owe allegiance solely to this country." Children of illegal migrants and temporary visa-holders, he contends, may owe allegiance to their parents' countries of origin. As I explained in my article, this theory, too, would deny birthright citizenship to freed slaves:
If, as this theory assumes, people owe allegiance to the government of the country they are born in, it obviously applies to virtually all freed slaves as well, even those brought into the U.S. legally.
Africans captured and sold to slave traders owed "allegiance" to the rulers of their homelands just as much as illegal migrants or temporary visa-holders do. Indeed, the former likely had stronger ties of allegiance than the latter, since captured slaves—unlike migrants—had no desire to leave their homelands and live under the rule of the U.S. government instead.
Contrary to racist stereotypes, many West African rulers of the 18th and 19th centuries had considerably developed states…. And even more primitive tribal rulers could still claim allegiance from their subjects, as the U.S. government recognized in the case of Native American tribal governments.
This is part of the reason why children born on Native American reservations run by such governments are among the few categories of people born in the United States who were not historically understood to be given birthright citizenship by the Citizenship Clause….
The Trump administration and some of its amici, such as Ilan Wurman, combine the "allegiance" argument with the idea that illegal migrants are not under U.S. jurisdiction because they are not under the "protection" of the U.S. government. Randy Barnett and Wurman have argued that birthright citizenship applies only to the children of people who have entered into a "social compact" and an "allegiance-for-protection" exchange with the U.S. government.
But, as I pointed out in an earlier critique of the Barnett-Wurman argument, slaves obviously were not part of any social compact under which they traded allegiance for protection. Far from protecting them, state and federal governments facilitated their brutal oppression at the hands of their masters. Indeed, illegal migrants and temporary visa holders actually get far more protection from the U.S. government than slaves did. While undocumented immigrants are subject to deportation, U.S. authorities still, at least to some extent, protect them against enslavement, forced labor, and assault. Temporary visa holders get still more protection, as they can seek protection from law enforcement without fear of getting deported.
In a concurring opinion, Justice Kavanaugh argues that the Trump executive order is illegal under a federal law enacted in 1940, but not under the Fourteenth Amendment. He contends that illegal migration was a problem largely unknown in 1868, and that the Citizenship Clause should not be understood in a way that precludes addressing this supposedly "new and different circumstance." But, as already noted, illegal entry of slaves was not a novel issue at all, and the Citizenship Clause was intended to cover such people. Moreover, even if there were few federal immigration restrictions prior to 1868, many state governments did have such restrictions, and it is notable that the Citizenship Clause grants state citizenship as well as the federal kind. Illegal entry was no obstacle to the latter, and the same logic applies to the former.
Kavanaugh also states that the "only apparent principle unifying the four disparate exceptions listed by the Court in Wong Kim Ark—especially in light of the exception for tribal American Indians—is that the parents in all of those varied circumstances were not U. S. citizens and were citizens of other nations, whether tribal or foreign." He claims this unifying principle also covers children of undocumented immigrants and temporary visa holders. In reality, these four exceptions are also unified by their exemption from many or all US laws. In addition, as already noted, any theory under which the latter two categories could be added to the list of exceptions would also cover numerous freed slaves and other Blacks.
In a concurring opinion, Justice Ketanji Brown Jackson rightly emphasizes the links between the Citizenship Clause and Black Americans lengthy struggle for freedom and equal rights. She explains how the Citizenship clause is based on a "universalist approach" to liberty and equality, as opposed to one limited to a specific group.
I think she is generally right on this, and there are many eloquent quotes and notable historical points in her opinion. But it is worth noting that the Citizenship Clause itself does not fully live up to these universalist aspirations. As I explained in a post on why birthright citizenship is a "second-best" policy, the Fourteenth Amendment makes citizenship dependent on morally arbitrary circumstances of location of birth, which is not entirely dissimilar to the rules based on race and ancestry that Jackson and nineteenth century advocates of racial equality rightly condemned. A fully universalistic policy would eliminate such distinctions entirely.
That said, the moral limitations of the Citizenship Clause do not vitiate its legal validity. And today's decision is vastly preferable to one that would have upheld Trump's executive order, thereby subjecting hundreds of thousands of people to deportation.
UPDATE: For those interested, I have posted a compendium of all my writings on the birthright citizenship issue here.
With the birthright citizenship opinion handed down, I thought we were done for the term. But at 10:51 ET, NPR posts a story with Nina Totenberg's byline: "Justice Samuel Alito, who wrote the opinion overturning Roe v. Wade, retires."
The story had no actual details about the retirement, but included a lengthy profile of Justice Alito. It seems this piece was pre-written just in case of a retirement.
About 15 minutes later, the story was taken down. (I preserved a PDF.) There is now an Editors Note;
Editors Note: Earlier today we erroneously published a story saying that Supreme Court Justice Samuel Alito was retiring. He has not announced his retirement and we have retracted the story.
Why was it published? Did someone make a mistake an erroneously click "submit." Or did Nina Totenberg green-light the story? I think NPR should provide an explanation of what happened here. These sorts of announcements can move markets and have a huge impact before they are corrected.
This mess-up brings to mind the faulty reporting about NFIB v. Sebelius in 2012.
Update: Mediaite has more details on the retraction.
I correctly predicted that Coach Kavanaugh would have the transgender sports cases and the Chief would write birthright citizenship. I was wrong about Alito authoring NRSC, but that means he did not write anything in December, which gives weight to my theory that Alito lost the majority opinion in Hamm v. Smith.
I will have much more to say about today's cases, and yesterday's cases, and last week's cases, in due course.
Donald Trump and FTC Commissioner Rebecca Slaughter.
In today's decision in Trump v. Slaughter, the Supreme Court ruled that laws protecting the heads of "independent" executive agencies from firing are unconstitutional, because they infringe on the president's constitutional removal authority. In my last post, I noted that the exact scope of this principle is unclear, given the exception the Court carved out for members of the Federal Reserve Board in Trump v. Cook, also issued today. But let's assume that, after Slaughter, protection against removal really is unconstitutional for the heads of all or nearly all previously "independent" federal agencies. If so, I would suggest that that renders the very existence of at least some of these agencies subject to legal challenge on the grounds that the removal protection provisions are not "severable" from the rest.
In his concurring opinion in Slaughter, Justice Neil Gorsuch rightly highlights that Congress might not have created many of the independent agencies in the first place (or at least not given them as much power) if they had known their leadership would be subject to the complete control of the president:
Today, independent agencies do not just exercise executive law-enforcement powers. Congress has also delegated to them vast legislative and judicial powers, effectively allowing these agencies to make laws and decide disputes under them. And, after today's decision, the President can effectively exercise all those powers too.
It's a development that raises important questions, not least these: Would Congress have delegated so much power, including legislative and judicial power, to independent agencies had it known that the President would come to control them? How will Congress respond now—if realistically it can? And what, if anything, will this Court do about it?
Gorsuch goes on to argue that this problem necessitates stronger judicial enforcement of constitutional nondelegation rules and the related "major questions" doctrine. I agree that these two doctrines are important and valuable constraints on executive power, and that courts should enforce them more aggressively. But the end of agency head protection against removal doesn't by itself trigger stronger judicial review under these doctrines. Whether a claimed delegation runs afoul of nondelegation and major questions constraints depends on the scope and nature of the power delegated, not on whether it is granted to an agency or to the president, and not on the extent to which the agency heads are insulated from removal.
By contrast, the invalidation of removal protection does matter under the Supreme Court's "severability" precedent, which addresses the question of what to in situations where one part of a law has been invalidated as unconstitutional, but others have not. In such cases, does the rest of the law fall too, or does it remain in place.
The relevant precedent here is far from a model of clarity. But, as a general rule, it turns on how significant the invalidated provision is to the overall statutory scheme, and whether Congress would have enacted the law without the unconstitutional element. Much of that precedent is summarized in an amicus brief I filed along with a cross-ideological group of other legal scholars in California v. Texas (2021), the Obamacare severability case.
The right answer will likely vary from agency to agency. But I suspect that Justice Gorsuch is right to think that at least some of these agencies would not have been created in their current form if not for the expectation that their leaders would be insulated from removal by the White House. If so, now that these protections against removal have been invalidated, their existence can be challenged as "inseverable" from the unconstitutional anti-removal provision.
If the ensuing litigation results in the invalidation of the agencies, Congress could, of course, try to recreate them with new legislation. But the new agencies might not be granted as much power as their predecessors.
I will not here attempt to canvas the relevant agencies or the gauge the prospects of inseverability lawsuits challenging each one. As already noted, the legal viability of a challenge may vary from case to case. In addition, courts may be reluctant to invalidate some agencies because of accumulated reliance interests or because of their economic and political significance. But I urge public interest groups, industries, consumers, and others affected by these agencies' regulatory powers to give serious consideration to challenging them on this basis.
NOTE: For those keeping score, the position I tentatively advocate here is totally consistent with what I advocated in the Obamacare severability litigation referenced above. In various writings and amicus briefs during the course of that litigation, I argued that what was left of the Obamacare "individual mandate" after Congress largely neutered it in 2017 (by abolishing the penalty for noncompliance) was too insignificant to render it inseverable from the rest of the Affordable Care Act. By contrast, protection of agency heads from removal is a far more important part of the statutes establishing at least some of the regulatory agencies to which it applied until ruled unconstitutional in Slaughter.
I have a regular routine for Supreme Court decision days. On one monitor, I have the SCOTUSBlog liveblog. On a second monitor, I have the SupremeCourt.gov opinions page open. I keep Adobe Acrobat ready on a third screen. And the fourth screen is the FantasySCOTUS database, where I immediately score the cases.
Usually SCOTUSBlog announces the case name and the authoring justice a few moments before the PDF link pops up on the website. (Circa 2010, the PDF links were simply the [docketnumber.pdf], so I was able to access some PDFs early by anticipating what cases came down; that practice was changed after I wrote about it.) When a Justice announces a dissent from the bench, we have to wait some time until the next opinion is released.
Today, the release sequence was predictable, until it wasn't.
At 10:01, SCOTUSBlog announced the majority opinion in Watson. Justice Barrett tends to offer long-ish summaries. At 10:09 SCOTUSBlog announced Justice Kagan's opinion in Chartie. At 10:15, Amy Howe announced: "We have Slaughter and Cook, both from Roberts." Both PDFs were posted at that time. I assumed that Roberts announced from the bench that he wrote the majority opinion in both cases, which is why the files were posted online. But we learn from Mark Walsh's indispensable reporting that the sequence was different:
Roberts announces that "I have the opinion of the court in two related cases." This could be the transgender sports cases, but he quickly adds, "I will start with Trump v. Slaughter."
Even though Roberts had not yet begun announcing the opinion in Cook, that opinion was still posted online immediately, and was distributed to the press room as a bundle.
At this moment, reporters in the Press Room are being handed copies of both Slaughter, about President Donald Trump's attempt to remove a member of the Federal Trade Commission, and Trump v. Cook, about his efforts to remove a member of the Federal Reserve Board of Governors. In fact, the two lengthy opinions have rubber bands around them.
I cannot recall an instance where a Justice announces two related cases, and both PDFs are posted simultaneously.
For example, on May 28, Justice Barrett had the majority opinion in two related cases, Rutherford v. United States and Fernandez v. UnitedStates. SCOTUSBlog announced Fernandez at 9:02 and posted the PDF at that time. The Fernandez dissent referenced Rutherford, which, as a commenter pointed out, "currently does not exist." At 9:09, SCOTUSBlog announced the judgment in Rutheford, and the PDF came a minute later. This is the usual routine for as long as I can remember.
Indeed, Mark Walsh said that between Roberts's majority and Sotomayor's seventeen page dissent, approximately twenty-seven minutes would elapse.
But it will be quite a while before we get to Cook. . . .
Roberts, who has kept his reading glasses on during the dissent, offers no off-the-cuff retorts or rebuttals. He says, "I will now turn to the opinion in Number 25A312, Trump versus Cook."
It is 10:42, and the rest of the world, including the Press Room, the president, the markets, and the nation, have known the outcome of this case for a good half hour before most of us in the courtroom do (given it was already posted on the court's website and reported on in places such as SCOTUSblog).
Mark is wise to reference markets. A friend wrote, "Roberts was so spooked out about spooking out the stock market that he kept Cook for himself and then apparently had it released to the public before it was even announced in court." I believe it.
The Chief wanted to avoid nearly thirty minutes of suspense, while Sotomayor read her dissent, concerning the fate of the Federal Reserve. He remembers well the uncertainty that unfolded during the Obamacare handdown. The markets could have reacted negatively without knowing the fate of Cook. So the Chief Justice (likely) ordered the Court to post the PDFs and release the bundled opinions together. And of course, the Chief will hold birthright citizenship for the last moments of the term to signal to the public how nonpartisan the Court is.
I have finished reading the Slaughter majority, and will have a lot to say in due course. Here, I'll just offer an initial thought. The Chief Justice is very critical of the Humphrey's Executor majority, and suggests it was something of a political ruling to clap back at President Roosevelt. Roberts uses that background, at least in part, to justify overruling the decision. I wonder if Roberts had even a moment of cognitive dissonance. Virtually every major ruling he issued--even the timing of Slaughter itself--is based on Roberts's crude sense of politics. How will Roberts's political precedents be viewed once he is off the bench? I would wager they'll be treated with the same dignity that Humphrey's Executor was afforded. Whatever mishigas the Chief was trying to do with Trump will be forgotten, as well the ill-fated effort by the New Deal Court to thwart FDR. Roberts's opinions cannot compare with a ruling like Justice Scalia's Morrison dissent, which stood the test of time and prevailed.
Today, the Supreme Court ruled that Slaughter gets slaughtered, but that Cook won't get cooked! In Trump v. Slaughter, a 6-3 Court divided along ideological lines ruled that the president generally has absolute power to remove the heads of executive branch agencies, even when Congress has enacted laws limiting that authority. At least as a general rule, those laws are - according to the Court - unconstitutional infringements on the president's executive power. Thus, Trump can give Democratic Federal Trade Commission member Rebecca Slaughter the axe.
By contrast, in Trump v. Cook, a 5-4 majority (including two of the justices who were also in the majority in Slaughter), ruled that Trump does not have unlimited power to fire members of the Federal Reserve Board. The Court ruled that the law allowing him to remove them only "for cause" is constitutional, and that "for cause" is a fairly high standard, compatible with maintaining the Fed's "independence." Moreover, if the president tries for fire board members for cause, he has to give them substantial due process. This doesn't definitively save Federal Reserve Board of Governors member Lisa Cook's job (Trump claims he can fire her due to accusations of mortgage fraud). But it certainly gives her and her colleagues strong protection against removal, and makes it clear that the president cannot simply fire them whenever he wants.
Elsewhere, I have outlined my reservations about unitary executive theory, which focus in large part on its application to agencies that wield powers the federal government was not supposed to have in the first place. I also agree with most of prominent originalist legal scholar Larry Solum's critique of the Court's opinions in Slaughter and Cook. Even if they are right about the bottom line in one or both cases, the majority's reasoning is far from air-tight.
Here, I focus on the question of whether the two rulings are compatible with each other. It seems to me highly likely, though not certain, that the answer is "no." In addition, the tension between the two makes it possible that the Federal Reserve won't be the only exception to the rule in Slaughter. When it comes to presidential removal power, some federal agencies are more equal than others, and it is not entirely clear which ones are which.
In her dissent in Cook, Justice Amy Coney Barrett writes that "the Court's holding is in serious tension with Trump v. Slaughter, which we also decide today." She adds that, under the majority's approach it is not clear whether "the Federal Reserve [is] unique, or might history sanction other exceptions too?" Although I don't necessarily agree with all the other points she makes in her dissent, she seems right about this aspect!
Chief Justice John Roberts' majority opinion in Cook, explains the Federal Reserve Board's exception status as follows:
Justice Thomas [in his dissent] declares the statute "unconstitutional," an infringement on the President's power to "remove his subordinates at will,…"
We disagree, as did "the founders of our Government and framers of our Constitution" when they "were actively participating in public affairs." Myers v. United States, 272 U. S. 52, 175 (1926). They knew from experience (and Hamilton reminded them) of the calamities that could arise from even the "suspicion" of political manipulation of monetary policy. Report on a National Bank 331. So when they established the First Bank of the United States, they guaranteed its independence from Presidential control. Their successors did the same for the Second Bank. That enabled both banks to serve as the "great regulating wheel" of the early American financial system…. The Federal Reserve follows in this lineage….
It is true, of course, that this tradition has not stood still; as Justice Thomas notes, the Federal Reserve is more powerful than its predecessors, managing a vastly more complex economy in a vastly more complex world…. We see no reason, however, why our central bank ought to be "trapped in amber" any more than any other aspect of our constitutional scheme…. What matters is that the Federal Reserve remains "consistent with the principles that underpin" the First and Second Banks—namely, that monetary policy should not be subject to political interference…
This is far from satisfying. If the issue is simply that central bank independence is a longstanding tradition, the same is true of many other independent agencies, some of which - as the dissenters in Slaughter point out - have existed for a century or more. I certainly agree - as do monetary economists across the political spectrum - that central bank independence is important for ensuring the stability of the monetary system and curbing inflation. But that is a policy consideration of a kind that is not normally supposed to influence originalist legal interpretation. Moreover, there are policy arguments (occasionally perhaps even strong ones) for the independence of various other regulatory agencies.
If the claim is that the Federal Reserve is different because it has important non-regulatory functions, the same is true of many other agencies, too - including the FTC (at issue in Slaughter). As Justice Gorsuch notes in his concurring opinion in Slaughter, "Congress has also delegated to them vast legislative and judicial powers, effectively allowing these agencies to make laws and decide disputes under them. And, after today's decision, the President can effectively exercise all those powers too." Moreover, the Slaughter majority emphasizes that "the President may remove his subordinates at will," at least when it comes to officials who wield any significant executive power at all. As the Cook dissenters point out, members of the Federal Reserve Board exercise various executive powers, such as regulating banks.
If majority's position rests on specifically on the importance of continuity with the First and Second Banks of the United States, it is somewhat strange that this particular continuity gets such exalted status. It is especially strange in light of the fact that many of the Founders - including James Madison, Thomas Jefferson, and Edmund Randolph (the first Attorney General) believed that the Bank of the United States was unconstitutional. That doesn't strike me as the kind of consensus that should lead originalists to elevate this institution's pedigree over that of others.
As Larry Solum notes, the Cook majority's approach to the Fed has much in common with the "history and tradition" test the Supreme Court has been using in Second Amendment cases, since the 2022 Bruen decision. In both cases, the Court looks to historical analogues to assess the constitutionality of modern laws and policies. I would add that the criticisms I and others have raised against the Bruen test apply here too. While I favor strong protection for Second Amendment rights, the Bruen test is often amorphous, subjective, and too far removed from the actual text and original meaning. The same is true of the Court's use of similar reasoning in Cook.
All of this raises the prospect that it may be premature to declare the demise of all independent agencies other than the Fed. Perhaps the latter is not a unique exception, but one that can set a precedent for others. Justice Barrett raises this possibility in her Cook dissent. In his majority opinion in Slaughter, Chief Justice Roberts notes that "we have left open the possibility that some functions traditionally handled outside the Executive Branch may not be encompassed by Myers's general rule [that the president must be able to fire subordinates]." He also emphasizes that the Court does not "determine the fate of officials not before us."
Cynics will say that what really matters here is that the justices know that central bank independence has enormous real-world significance to the stability of the economy, whereas they (or at least the conservatives) assign less value to the independence of other agencies. But I suspect at least some of the justices take the "history and tradition" approach seriously, and therefore will make at least some good faith effort to apply it elsewhere - just as they have tried to do in Second Amendment cases, including the 2024 Rahimi decision, where all but one conservative justice (Thomas) voted to uphold a gun control law. But even if the distinction is driven by policy concerns, it's possible the Court will find other agencies where such concerns loom large enough in the minds of a majority to make another exception to the rule.
For these reasons, I think today's decisions may not be as clear and definitive as they might seem. As is often the case, future rulings may shed more light on things. Perhaps the Court will give us a better explanation of why the Fed is different in a way that applies to few if any other agencies. Perhaps they will elucidate the exception in a way that encompasses a good many other agencies, too. There may be other possibilities, as well. We shall see.
The Question Presented from the petition, which the Court just granted:
The "interest of parents in the care, custody, and control of their children[] is perhaps the oldest of the fundamental liberty interests recognized by this Court." Troxel v. Granville (2000). But that right is mere rhetoric if federal judges bar parents from court via a miserly interpretation of standing doctrine—a question, as three Justices recently recognized, that is of "great and growing national importance." Lee v. Poudre Sch. Dist. R-1 (Alito, J., statement).
It is certainly important to Petitioners, who are parents of gender-confused children (including one child who previously ran away) and who do not wish to affirm that confusion. They challenged Washington laws designed to give runaway minors "gender-affirming treatment" without parental notice or consent. But despite their being the challenged laws' target, and despite their alleging specific current harms and a substantial risk of specific future harms to their ability to parent, the Ninth Circuit held that Petitioners lacked Article III standing.
The question presented is:
Whether parents have standing to challenge a law or policy that deliberately displaces their decision-making role as to "gender transitions" of their children, and in so doing creates present and likely future impediments to their ability to parent their children as they deem best for them.
And from the State's response, which urged the Court not to grant review:
The Chief Justice wrote the majority opinion in both Cook and Slaughter. There was't much of a surprise here. Yet, I still cannot believe I lived to see the day that Humphrey's Executor was overruled. Somewhere, Justice Scalia is smiling.
I predicted that Justice Kagan would write Chartie. Justice Alito still seems upset about Carpenter.
I also predicted that Justice Barrett would write Watson, though I wasn't sure how she would vote. It turned out she voted opposite the conservatives.
Back in June 2022, I think I was the first person to write about the so-called 3-3-3 Court, though other have picked that term up. Yet, that framing didn't hold very long, if it ever did. This term has fractured that idea.
There are four remaining cases.
The Chief Justice clearly has birthright citizenship. He will save it for the last hand-down of the term, so he can rule against the President and signal to the world how non-political the Court is just in time for Independence Day.
I have long thought Justice Alito would write NRSC v. FEC. From the December sitting, only Alito and Sotomayor have not yet written. I think it extremely unlikely Sotomayor has this majority opinion.
Given that the Chief wrote Cook, I think it is unlikely that he also wrote both transgender athletics cases from January. They could go to Gorsuch, Kavanaugh, or Barrett. However, Gorsuch and Barrett both already have seven opinions for the term. I doubt they have these two huge cases. Justice Kavanaugh only has four opinions for the term, so I think he gets them both, bringing his total to six. The wildcard is that Kagan hasn't written for January, and has only six for the term. If Kagan swung right, maybe the Chief assigned her the case. I'm doubtful. Coach Kavanaugh has the sports cases.
Today the Supreme Court issued its long awaited decisions in Trump v. Slaughter and Trump v. Cook, two cases concerning the ability of the President to remove agency officials. The Chief Justice wrote for the Court in both cases, and the results in each case were what was generally expected.
In Slaughter the Court overruled Humphrey's Executor, and held that the heads of agencies exercising significant executive power must be removable at-will by the President. This means the President can remove members of the Federal Trade Commission and other multi-member agencies previously considered to be "independent agencies." The vote was 6-3 along ideological lines. Justice Sotomayor wrote the dissent.
In Cook, the Court denied President Trump's application for a stay preventing him from removing Cook from the Board of the Federal Reserve for cause. In the process, the Court rejected the argument that the President's allegation of cause was unreviewable and concluded that the statutory requirements for removal were not satisfied. Even though the underlying constitutional question was not presented to the Court, it went on to hold that the for-cause protections for members of the Federal Reserve are constitutional. Tjhe Court split 5-4. The Chief was joined by Justices Sotomayor, Kagan, Kavanaugh, and Jackson. Justices Thomas, Alito and Barrett each authored dissents (with Gorsuch joining Justice Alito). Justice Thomas was alone in arguing that the removal protections for the Federal Reserve are unconstitutional.
From today's dissent from the denial of certiorari in Dershowitz v. CNN, Inc., written by Justice Thomas, joined by Justice Gorsuch:
Alan Dershowitz sued respondent, a major news network, alleging that it defamed him. Because Dershowitz is a "public person," our precedents required him to prove not only the elements of common-law defamation, but also that the network acted with "actual malice." See Gertz v. Robert Welch, Inc. (1974). Predictably, Dershowitz did not prevail under that exacting standard, which this Court created in New York Times Co. v. Sullivan. Dershowitz now asks this Court to overrule Sullivan and related precedents.
The "actual malice" standard for public figures "bears 'no relation to the text, history, or structure of the Constitution.'" Berisha v. Lawson (2021) (Thomas, J., dissenting from denial of certiorari); see also Gertz (White, J., dissenting); case below (Lagoa, J., concurring). Instead, the founding generation believed that, if anything, public figures had stronger claims for damages when they were defamed. See McKee v. Cosby (Thomas, J., concurring in denial of certiorari). I and others have thus called for reconsideration of the actual-malice standard for public figures. See, e.g., Berisha (Gorsuch, J., dissenting from denial of certiorari); Tah v. Global Witness Publishing, Inc. (D.C. Cir. 2021) (Silberman, J., dissenting); Gertz (White, J., dissenting). I would have granted certiorari to do so in this case.
As I noted this morning, on Wednesday the Ninth Circuit allowed a religious discrimination claim against Alaska Airlines to go forward. The plaintiffs (Marli Brown and Lacey Smith) were Christian flight attendants who were fired for objecting on a company-run intranet to the company's statement in favor of a federal ban on sexual orientation and gender identity discrimination. (The case is Brown v. Alaska Airlines, Inc., written by Judge Daniel Bress and joined by Judge Kenneth Lee and, in large part, by Judge Morgan Christen.)
But the plaintiffs also sued their union, the AFA (the Association of Flight Attendants-CWA AFL-CIO), for religious discrimination. And the panel also unanimously allowed that claim to go forward. First, a bit of the factual allegations:
While drafting the company's response [to the two plaintiffs' posts], Andy Schneider, Alaska's Senior Vice President of People, coordinated with AFA Master Executive Council President Jeffrey Peterson. The AFA Master Executive Council is the main governing body for AFA's membership at Alaska. As Master Executive Council President, Peterson was the executive officer in charge of administering the collective bargaining agreement between Alaska and AFA. Peterson had substantial communications with Alaska about plaintiffs' posts on Alaska's World as the company was contemplating its response and disciplinary actions against the plaintiffs….
Peterson, the AFA Master Executive Council President, separately sent an email to his AFA colleagues expressing dismay about Smith's post. Referencing Smith, he wrote, "Employees get to be bigots in their private lives and to express their bigoted and misinformed opinions while not at work—as horrifying as that may be." He added that "the post is reprehensible and there should be repercussions." Peterson also told others at AFA that "this will be an ongoing and evolving conversation with management over the next couple weeks."
Peterson separately texted "I hate her" (referring to Smith) to a friend who was an Alaska pilot. He also texted Toni Monroe, an Alaska employee, that Smith's post was "bullshit" and that "Mngmt needs to send [Smith's] bigoted ass packing for a variety of reasons." Still, Peterson informed his AFA colleagues that the union would "represent [Smith] through the grievance process fairly, in good faith, and without discrimination." …
That same day, Peterson flagged Brown's comment to Alaska management in a text chain that included Alaska's Carmen Williams and Michaela Littman, the Managing Director of Flight Operations. Peterson texted these Alaska executives to "[c]heck out Marli Brown's post on [Alaska's World] re: Equality Act. Definitely lighting up social media tonight, as if Lacey [Smith] wasn't enough." Peterson then lamented, "I wish fewer people would struggle so much with unifying their faith with inclusivity." Peterson later confirmed that it was unusual for him to get involved with Alaska's internal response to disciplinary incidents.
ENRD at the Department of Justice is getting a new name. According to an op-ed in theWall Street Journal by ENRD's Principal Deputy Assistant Attorney General Adam Gustafson, the Environment and Natural Resources Division will be renamed the Energy and Natural Resources Division.
From the op-ed:
Over the past two decades, the division has played a central role in the responsible production and use of energy, driven by technological advances from the shale revolution to AI. To recognize this evolution, we will now rename it the Energy and Natural Resources Division.
The division's charge to steward America's environment responsibly is unchanged. The environment is our nation's greatest natural resource, and the new name captures that priority. We're proud of the results we've achieved over the past 17 months against air and water pollution, lead poisoning, ozone depletion and radioactive waste. Our achievements include last week's landmark multistate settlement to address forever chemical pollution and a $100 million penalty secured at trial for industrial air pollution near Detroit. The division continues to enforce environmental laws, punish fraudsters and smugglers, honor our nation's treaty and trust obligations to tribes, and defend federal agencies' efforts to protect and develop responsibly our wildlife and natural resources.
At the same time, we will fight to ensure that the U.S. remains energy dominant for the next 250 years.
This is hardly the first name change for ENRD. It was founded as the Public Lands Division in 1909. It became the Lands Division in 193, and then the Land and Natural Resources Division in 1965. It did not become the Environment and Natural Resources Division until 1990. In each case, the change was made by order of the Attorney General.
