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The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent | Est. 2002
Justice Barrett Is "Not Afraid"
A revealing interview with the Supreme Court's "Steel Magnolia."
Justice Amy Coney Barrett has been giving lots of interviews summer and fall as she promotes her best-selling book, Listening to the Law: Reflections on the Court and Constitution. Many of these interviews cover what is now well-trodden ground. Reading them all gets repetitive.
An exception is this recent interview by Jan Crawford of CBS News which digs a little more deeply into Justice Barrett's perspective about how she approaches her work on the Court (and much else).
Among the topics they discuss is how Justice Barrett feels about being protested, criticized, and potentially threatened. From the interview:
For Barrett, protesters have become routine, another logistical wrinkle in her everyday life, much like the ones who regularly gather at her home outside Washington, D.C., where she lives with her husband and younger children. What surprises her, she told me in a wide-ranging interview in her chambers late last month, is how she can let it roll off her back.
"If I had imagined before I was on the Court, how I would react to knowing that I was being protested, that would have seemed like a big deal, like, 'oh, my gosh, I'm being protested,'" she says. "But now I have the ability to be like, 'Oh, okay, well, are the entrances blocked?' I just feel very businesslike about it. It doesn't matter to me. It doesn't disrupt my emotions." . . .
As Crawford notes, criticism of the Court has led to threats on the justices themselves. The individual who sought to kill Justice Kavanaugh was just sentenced (to a paltry eight years), and there appears to have been a threat to several justices at this past weekend's "Red Mass."
I asked Barrett if she is ever afraid. Her response was immediate and emphatic: "I'm not afraid."
"You can't live your life in fear," she continued. "And I think people who threaten — the goal is to cause fear. And I'm not afraid. I'm not going to reward threats with their intended reaction."
That kind of mental discipline and self control, even in the face of threats and extreme criticism, reflects an outlook that has guided the 53-year-old Barrett much of her life.
Given the threats justices face in our current moment, criticism from commentators would seem to be small potatoes.
Her critics aren't convinced, but Barrett seems unfazed by the attacks on her judgment or her character. In our conversation, and in multiple interviews with those who know her, she comes across as someone with a strong sense of self and an equally clear view on the right way to interpret the Constitution. Unlike some justices, she says she doesn't monitor what journalists and law professors and politicians say about the Court. She has seen them get it wrong. It doesn't matter to her.
"If I could have, especially as a 16-year-old, imagined that I would not care or be impervious to being criticized and mocked, I would have been very surprised," she says. "And so I am glad, because I think this would be a miserable job if you let yourself care, if you let yourself be affected."
There is lots more in the interview. One other fun tidbit is this discussion of how she came to consider herself an originalist.
In our interview, Barrett said she was drawn to originalism when she read Justice Scalia's opinions in a constitutional law class during her second year at Notre Dame Law School. She said she was frustrated after a first-year criminal law class, reading liberal decisions of the Warren Court and finding them to be "unmoored." Scalia's opinions, with his originalist framework, made sense to her.
"I think I am different in style than Justice Scalia. I don't think I'm different in substance," she said. "I think one thing that was important to Justice Scalia is fidelity to his analytical framework, so fidelity to textualism and originalism, even when it led to places that he didn't want to go."
The full interview is worth a read. It is available here.
On Common Good Constitutionalism: Vermeule Response to Barrett
A reply to the Associate Justice's recent remarks.
In a recent NRO interview, Justice Amy Coney Barrett said she did not "like this common good constitutionalism movement," suggesting it was too "results-oriented."
At the New Digest, Professor Adrian Vermeule, author of Common Good Constitutionalism, has responded to Justice Barrett's comments. Here is a taste:
There is a serious ambiguity in Justice Barrett's critique.4 There is a sense of "result-oriented" that Justice Barrett would be quite right to criticize; in this sense, the judge must avoid result-orientation at all costs. This sense is captured in the federal judicial oath mandated by 28 U.SC. 453, which requires the judge to swear to "administer justice without respect to persons, and do equal right to the poor and to the rich." The judge must show no partiality whatsoever as between the parties to the case.
But I'm not at all sure that's what Justice Barrett means by "result-oriented." If, as I suspect, she is drawing upon a different sense of "result-oriented" widespread in originalist writing, she means something quite different: judges interpreting the law must never take into account the consequences for the common good or public interest of the various possible interpretations. Fiat sensus primigenius, ruat caelum - let the original meaning be done, though the heavens fall.
Common good constitutionalism does indeed hold that judges interpreting the law should sometimes take into account the consequences of their interpretations for the public interest; in that sense, although only in that sense, Barrett's charge of "result-orientation" is perfectly true. The difference between Barrett and the classical lawyer, however, is that the classical lawyer does not think it is bad for judges to be "result-oriented" in the second sense. Indeed I believe that "result-orientation" in the second sense is so firmly grounded in our legal theory and practice, from the very beginning of our republic, that any good-faith originalist ought to recognize a kind of bounded legal consequentialism as one component of her approach to adjudication.
The full essay is available here.
Justice Barrett is not the first jurist to critique common good constitutionalism. I noted Judge Bill Pryor's critique, as well as Prof. Vermeule's response (with Conor Casey).
Univ. of South Dakota Withdraws Planned Firing of Art Professor for Vulgar Tweet Calling Charlie Kirk a "Hate Spreading Nazi"
From today's notice of dismissal, filed by the plaintiff's lawyerin Hook v. Rave:
On October 3, defendants wisely abandoned their notice of intention to terminate Professor Hook for his First Amendment protected speech about a matter of substantial public interest. Defendants have returned Professor Hook to his full duties, and have not punished him in any way, nor do they seek to punish him in any way. So Professor Hook has received the relief he sought in this lawsuit, which makes this case moot. Accordingly, Professor Hook hereby dismisses it without prejudice in accordance with F. R. Civ. P. 41(a)(1)(A)(i).
Here's my post about an earlier court decision in the case:
[* * *]
From [the Sept. 24] decision by Judge Karen Schreier (D.S.D.) in Hook v. Rave:
Hook is a tenured Professor of Art at the University of South Dakota. He has taught at the University since 2006.
In the late afternoon on September 10, 2025, while at home and off work, Hook posted the following message concerning the recent shooting and killing of Charlie Kirk to his private Facebook account:
Okay. I don't give a flying f*** [the original reads "fuck" -EV] about this Kirk person. Apparently he was a hate spreading Nazi. I wasn't paying close enough attention to the idiotic right fringe to even know who he was. I'm sorry for his family that he was a hate spreading Nazi and got killed. I'm sure they deserved better. Maybe good people could now enter their lives. But geez, where was all this concern when the politicians in Minnesota were shot? And the school shootings? And Capitol Police? I have no thoughts or prayers for this hate spreading Nazi. A shrug, maybe.
Approximately three hours later, while still at home and off work, Hook removed the above message and made a second post. The second post stated:
Chief Justice Burger Set the Stage for the Originalist Revolution
While conservative criticisms of the Burger Court may be justified, those criticisms do not apply to the "The Chief." He had only one vote on the Court ... and, too often, too little support from his colleagues to reach originalist results.
My co-blogger Josh Blackman has an interesting post, observing that the current Roberts Court has largely left Warren Court precedents in place, while often undoing Burger Court precedents. Blackman's argument is well-made. But in concluding his post, Blackman diverts into an unnecessary attack on Chief Justice Burger. Blackman suggests it was Chief Justice Burger who was "driving those trains" that went off the tracks. As a former law clerk for "The Chief" (as we called him), I'm biased. But I believe Blackman's criticisms of The Chief miss their mark. Blackman fails to adequately consider the situation that The Chief all too often himself in—one vote on a nine-Justice court that was often inclined to reaffirm and even expand dubious Warren Court precedents. And, if he had joined or written dissenting opinions, the result would often have been that the case assignment would have then moved from him (as the senior, Chief Justice) to a very liberal justice, with an even worse decision likely emerging. Working within these considerable constraints, The Chief took important steps to help to set the stage for the later originalist revolution.
Blackman launches his attack by looking at nine decisions of the Burger Court that have since been reversed. For convenient reference, I reproduce Blackman's list below:
- Roe v. Wade (1973), reversed by Dobbs v. Jackson Women's Health Organization (2022).
- Board of Regents of California v. Bakke (1978), which largely upheld the use of affirmative action policies. This decision was (basically) reversed by Students for Fair Admissions v. Harvard (2024).
- Lemon v. Kurtzman (1971) prohibited any "entanglement" between church and state. Kennedy v. Bremerton School District (2022) effectively overruled the Lemon test.
- Abood v. Detroit Board of Education (1977) upheld the power of public sector unions to mandate certain dues from employees. Janus v. AFSCME (2018) overruled Abood.
- Chevron v. NRDC (1984) ruled that courts should defer to administrative agencies when a statute is "ambiguous." Loper Bright v. Raimondo (2024) overruled Chevron deference.
- Apodaca v. Oregon (1972) allowed non-unanimous juries. It was overruled by Ramos v. Louisiana (2020).
- Nevada v. Hall (1979) held that states lack sovereign immunity from private lawsuits filed against them in the courts of another state. It was overruled by Franchise Tax Board of California (2019).
- Williamson County Planning v. Hamilton Bank (1985) limited access to federal courts for plaintiffs raising Takings Clause claims. It was overruled by Knick v. Township of Scott (2019).
- Davis v. Bandemer (1986) held that claims of partisan gerrymandering were justiciable in federal court. It was overruled by Rucho v. Common Cause (2019).
After recounting these nine cases, Blackman writes that "I've heard it said that Chief Justice Burger could have done more on the Court if he had more conservative votes. I'm not so sure. Burger was in the majority of most of the overruled cases. … Justice Rehnquist, appointed around the same time, was often the lone voice of reason."
So let's look at this set of nine cases, with Blackman's argument in mind. Read More
Foreign Law in American Courts
"Religious Arbitration, Family Law, and Constitutional Limits"
I was one of the panelists on this program, and much enjoyed it. (It's framed around some controversies in Texas, but we're talking about much bigger questions.) You'll see that I pretty sharply disagree with the other panelists—my remarks start at around 38:50—but that's what makes it fun. Here's the summary from the producers:
In recent months, Texas Governor Greg Abbott announced a ban on "Sharia law and Sharia compounds" in the state, citing longstanding principles that U.S. and Texas law take precedence over conflicting foreign law. This position is reflected in the 2017 American Laws for American Courts statute and in an Attorney General opinion affirming that contracts violating Texas public policy cannot be enforced.
These commitments were tested in a North Texas family law case, where an Islamic prenuptial agreement called for disputes to be resolved under religious law. The Texas Supreme Court ultimately stayed the arbitration order and ordered review of the original arbitration agreement for "validity and enforceability."
Other recent developments - including video accounts of a Houston imam calling for boycotts of certain businesses and reports of a proposed Muslim-exclusive residential community ("EPIC") - have prompted legislative responses such as HB 4211, which requires property transfer disclosures and ensures disputes are adjudicated under Texas and U.S. law.
How should courts weigh religious arbitration against constitutional and statutory protections? What legal tools exist to address disputes that implicate cultural or religious norms? How can Americans both respect religious diversity and uphold constitutional imperatives?
Did DA's Office Retaliate Against Prosecutor, When She Was Serving as Juror, for Voting to Acquit Defendant?
That's the issue in Hagan v. Funk, decided last Monday by Chief Judge William L. Campbell, Jr. (M.D. Tenn.); here are the allegations from the Complaint:
Plaintiff was employed as a prosecutor for the Office of the District Attorney General of the 20th Judicial District of Tennessee ("DA's Office") when she received a jury summons. The DA's Office has an employee manual with a policy governing jury duty. The policy states:
Jury service is a responsibility of good citizenship, and all employees are expected to honor subpoenas for jury duty in any court. It is the office policy that employees serve rather than seek to be excused or exempted. Jury service is both a privilege and an obligation. Our court system is founded upon the right to a jury trial, and all citizens should participate in order to insure [sic] that this right is meaningful. Because jury service requires sacrifice, many citizens try to avoid this obligation. Our office should set a good example by our willingness to serve, and we should be positive about our justice system and encourage all citizens to take part.
Every employee is to notify their respective supervisor immediately upon the receipt of a jury notice so that arrangements can be made to cover the employee's office assignments. Attorneys should also bring the matter to the attention of the judge of their court where appropriate. On each day at the conclusion of jury service, the employee shall return to work at the office, unless it is after office hours. All jury fees belong to the employee and will not affect an employee's pay.
Upon receiving the jury summons, Plaintiff notified her supervisor as well as Defendant. Plaintiff appeared for jury service on July 15, 2024, for the case State of Tennessee v. Karlos Reynolds, 2023-B-1023. Plaintiff was juror number nine. Based on this number, she would presumptively serve on the jury unless either the Court removed her for cause or one of the parties used a peremptory challenge to remove her.
The First Amendment and Restrictions on Gathering Information by Drone
From Sixth Circuit Judge John Bush's very interesting opinion Friday respecting denial of rehearing en banc in Yoder v. Bowen:
This case involves an as-applied challenge to a Michigan law (the drone statute) that makes it illegal to "us[e] an unmanned vehicle or unmanned device that uses aerodynamic forces to achieve flight"—i.e., a drone—while "tak[ing] game or fish." Drone Deer Recovery, a plaintiff here, offers a service where it tracks downed animals using drones and then posts the location of the animals' carcasses online so hunters can more easily find their kill. The plaintiffs allege that the drone statute violates their First Amendment rights because it (1) is a content-based speech restriction, (2) violates the speech-inputs doctrine, and (3) unconstitutionally restricts their ability to engage in inherently expressive conduct. The panel rejected all three arguments and determined that the statute survived intermediate scrutiny.
{We have referred to a type of protected speech as "speech inputs," but it goes by different names in different jurisdictions. The Tenth Circuit, for example, has referred to it as "the protected creation of speech," and the Supreme Court has referred to it as "[s]peech in aid of" protected speech.}
I write separately because I have concerns about the panel's reasoning related to the speech-inputs doctrine. The Supreme Court has indicated that "heightened scrutiny"— something more than O'Brien intermediate scrutiny—applies when the government seeks to ban the means to create speech. See Sorrell v. IMS Health Inc. (2011) (noting that a Vermont statute banning the sale of certain pharmaceutical data effectively banned certain entities from speaking with physicians and pharmaceutical companies and was therefore subject to "heightened scrutiny").
Second Amendment Violated by Seizure of Firearms License from Alleged Domestic Violence Victim
From Tuesday's opinion by Judge Aida Delgado-Colón (D.P.R.) in Ramos-Cruz v. P.R., granting summary judgment to plaintiff on her Second Amendment claim:
The Court draws the following factual findings from the parties' admissions on the record and those statements of proposed facts submitted by plaintiff that comply with L. Civ. R. 56….
On November 19, 2022, after an argument with her husband, plaintiff left her residence in Ceiba and went to Luquillo where she called the police to make a report against him for domestic violence. At the Luquillo Police Station, PRPB [Puerto Rico Police Bureau] agents seized plaintiff's firearms license [a seizure that apparently made it illegal for her to acquire new guns -EV]. The agents then travelled to plaintiff's house, where her father-in-law was present, and proceeded to enter the home, where they seized her weapons and ammunition. This was done without her permission and without a court order, pursuant to Article 2.13 of [Puerto Rico Weapons Act]. The next day, on November 20, 2022, an ex parte temporary restraining order was entered in plaintiff's favor and against her husband….
Article 2.13… reads, in relevant part, as follows:
Any law enforcement officer shall temporarily seize the license, firearms, and/or ammunition of a citizen if he has grounds to believe that the firearms license holder has used or shall use said firearms and ammunition unlawfully to harm other persons; for uttering threats to commit a crime; for stating the intention to commit suicide; for repeatedly demonstrating negligence or carelessness in handling the firearm; when it is believed that the firearms license holder has a mental illness, is considered to be a habitual drunkard, or is addicted to controlled substances; or in any other situation of grave risk or danger that warrants the seizure.
The record before the Court shows that none of the enumerated exceptions applied to plaintiff's situation when she sought assistance from the PRPB. Rather, the PRPB effectuated the seizure pursuant to the last, broadly worded clause: "in any other situation of grave risk or danger that warrants the seizure." …
Oyez! Oyez! Oyez! The October Term 2025 of FantasySCOTUS is now in session
Predict all of the biggest cases at the Supreme Court.
I am honored to open up the 17th Season of FantasySCOTUS. I launched the site back in 2009 when I was still clerking. Now, more than decade later, thousands of Court watchers have made their predictions. Sign up today at FantasySCOTUS.net to predict the outcome of all the blockbusters this term.
The Heritage Guide to the Constitution: Essay Nos. 176–200
To continue my preview of The Heritage Guide to the Constitution, which will ship on October 14, here are the authors of essays 176–200.
- Essay No. 176: The Jury Trial Clause —Judge Kurt D. Engelhardt, Ian Brinton Hatch, & Greta Gieseke
- Essay No. 177: The Vicinage Clause —Brian C. Kalt
- Essay No. 178: The Informed Of Accusation (Arraignment) Clause —Judge Michael B. Brennan
- Essay No. 179: The Confrontation Clause —John F. Bash, III
- Essay No. 180: The Compulsory Process Clause —Judge Joel M. Carson Iii & Jefferson F. Serfass
- Essay No. 181: The Right To Counsel Clause —Judge Lawrence Vandyke & Alexandria Overcash
- Essay No. 182: The Civil Jury Trial Clause —Renée Lettow Lerner
- Essay No. 183: The Re-Examination Clause —Renée Lettow Lerner
- Essay No. 184: The Excessive Bail Clause —John F. Stinneford
- Essay No. 185: The Excessive Fines Clause —John F. Stinneford
- Essay No. 186: The Cruel And Unusual Punishments Clause —John F. Stinneford
- Essay No. 187: The Ninth Amendment —Ryan Williams
- Essay No. 188: The Tenth Amendment —Charles J. Cooper
- Essay No. 189: The Eleventh Amendment —Ernest A. Young
- Essay No. 190: The Twelfth Amendment —Michael T. Morley
- Essay No. 191: The Thirteenth Amendment —Kurt T. Lash
- Essay No. 192: The Citizenship Clause —Kurt T. Lash
- Essay No. 193: The State Action Clause —Lee J. Strang
- Essay No. 194: The Privileges Or Immunities Clause —Kurt T. Lash
- Essay No. 195: The Due Process Clause —Nathan S. Chapman & Michael W. Mcconnell
- Essay No. 196: The Equal Protection Clause —Christopher R. Green
- Essay No. 197: The Apportionment Of Representatives Clause —Gerard N. Magliocca
- Essay No. 198: The Insurrection Or Rebellion Clause —Gerard N. Magliocca
- Essay No. 199: The Public Debt Clause —Gerard N. Magliocca
- Essay No. 200: The Enforcement Clause—James C. Phillips
Today in Supreme Court History
Today in Supreme Court History: October 6, 2010
10/6/2010: Snyder v. Phelps is argued.
Second Amendment Roundup: Supreme Court grants cert in Wolford v. Lopez
Hawaii law bans firearms on private property open to the public without explicit permission.
On October 3, the Supreme Court granted cert in Wolford v. Lopez on the following issue: "Whether the Ninth Circuit erred in holding, in direct conflict with the Second Circuit, that Hawaii may presumptively prohibit the carry of handguns by licensed concealed carry permit holders on private property open to the public unless the property owner affirmatively gives express permission to the handgun carrier?"
In response to Bruen's holding that citizens may not be denied permits to carry firearm without a special need, several states enacted sweeping bans on where firearms may be carried. One such provision enacted by Hawaii prohibits the carrying of firearms by a permit holder onto private property open to the public unless the owner affirmatively gives permission by "unambiguous written or verbal authorization" or by the "posting of clear and conspicuous signage." The Ninth Circuit upheld this prohibition in Wolford v. Lopez (2024).
That conflicts with the Second Circuit's decision in Antonyuk v. James (2024), which found violative of the Second Amendment New York's ban on firearm possession by a permitee onto private property open to the public unless the owner or lessee of the property posts clear and conspicuous signage or otherwise gives express consent to bring the firearm onto the property. That created an unprecedented default presumption that carriage is banned, instead of the historical presumption that it is banned only if explicitly done so.
To show that Hawaii's reverse default presumption satisfied Bruen's requirement that a restriction find analogues in American historical tradition, Wolford pointed to a 1771 New Jersey law focusing on hunting that prohibited going on the lands of another armed without consent, and an 1865 Louisiana law that prohibited carrying firearms on the premises or plantation of another without consent. But as Judge Lawrence VanDyke pointed out, dissenting from denial of en banc rehearing, the 1771 New Jersey law was "an antipoaching and antitrespassing ordinance," while the 1865 Louisiana law was one of the "notorious Black Codes that sought to deprive African Americans of their rights, including the right to keep and bear arms otherwise protected by state law."
As I noted in a previous post, the United States filed an amicus curiae brief in support of the cert petition in Wolford, explaining that "after Bruen, five States, including Hawaii, inverted the longstanding presumption and enacted a novel default rule under which individuals may carry firearms on private property only if the owner provides express authorization, such as by posting a conspicuous sign allowing guns." As the brief explained, the Court's consideration of the issue "would help lower courts seeking to interpret the Second Amendment, legislatures seeking to comply with the Constitution, and (most important) ordinary Americans seeking to exercise their fundamental right to possess and carry arms for lawful purposes such as self-defense."
The Wolford cert petition also proposed that the Court resolve a second issue: "Whether the Ninth Circuit erred in solely relying on post-Reconstruction Era and later laws in applying Bruen's text, history and tradition test in direct conflict with the holdings of the Third, Fifth, Eighth and Eleventh Circuits?" While the Court did not grant cert on that issue, it is sure to covered in the briefing, and the Court may well expand on its prior rulings that focused on Founding-era history and allowed later history only if consistent with Founding-era history. On that topic, see Mark W. Smith's article "Attention Originalists: The Second Amendment was adopted in 1791, not 1868."
Another state that tried to nullify Bruen was New Jersey, which prohibited carrying a firearm on "private property, including but not limited to residential, commercial, industrial, agricultural, institutional or undeveloped property, unless the owner has provided express consent or has posted a sign indicating that it is permissible to carry on the premises a concealed handgun." After the briefing in Wolford was complete, on September 10 the Third Circuit decided Koons v. Attorney General New Jersey, which held this ban likely to be violative of the Second Amendment as applied to carriage on private property open to the public, further buttressing the challengers in Wolford.
The Supreme Court has now decided to resolve an outlier law without precedent in American history until a handful of states sought to push back on the Court's ruling in Bruen. Most of the other of the Court's prior Second Amendment precedents invalidated outlier laws – the handgun bans in the District of Columbia (Heller) and Chicago (McDonald), and the discretionary licensing law in New York (Bruen). However it decides Wolford is sure to give major guidance as applied to the avalanche of other Second Amendment cases being litigated mostly in the same restrictive states.
Oregon Court Strikes Down Trump's Federalization of National Guard
Judge Immergut's opinion is worth a look, not least because she was a Trump appointee with strong Republican credentials
The court's opinion, available here, has some powerful language regarding the President's deployment of national guard troops to protect "War-ravaged Portland," as Trump called it on Truth Social. Worth a look.
This case involves the intersection of three of the most fundamental principles in our constitutional democracy. The first concerns the relationship between the federal government and the states. The second concerns the relationship between the United States armed forces and domestic law enforcement. The third concerns the proper role of the judicial branch in ensuring that the executive branch complies with the laws and limitations imposed by the legislative branch. Whether we choose to follow what the Constitution mandates with respect to these three relationships goes to the heart of what it means to live under the rule of law in the United States. . . .
Plaintiffs bring claims alleging that Defendants' actions violate (1) the statutory authority granted the President in 10 U.S.C. § 12406, (2) Oregon's sovereign rights as protected in the Tenth Amendment, (3) the Posse Comitatus Act, (4) the Administrative Procedures Act, and (5) the separation of powers, as well as the Militia and Take Care Clauses of the U.S. Constitution. . . .
For the reasons discussed below, this Court finds that Plaintiffs are likely to succeed on their claim that the President's federalization of the Oregon National Guard exceeded his statutory authority under 10 U.S.C. § 12406 and was ultra vires. In addition, because Section 12406 defines the scope of Congress's constitutional delegation to the President to federalize the National Guard, Plaintiffs are likely to succeed on their claim that the President exceeded his constitutional authority and violated the Tenth Amendment. . . .
Under 10 U.S.C. § 12406, the President may federalize National Guard service members if: (1) the United States, or any of the Commonwealths or possessions, is invaded or is in danger of invasion by a foreign nation; (2) there is a rebellion or danger of a rebellion against the authority of the Government of the United States; or (3) the President is unable with the regular forces to execute the laws of the United States.
In Newsom II, the Ninth Circuit held that 10 U.S.C. § 12406 does not "preclude[] judicial review of the President's determination that a statutory precondition exists." However, a reviewing court must give "a great level of deference to the President's determination that a predicate condition exists." A court "review[s] the President's determination to ensure that it reflects a colorable assessment of the facts and law within a 'range of honest judgment.'" At the same time, the Executive's "exercise of his authority to maintain peace" must be "conceived in good faith, in the face of the emergency and directly related to the quelling of the disorder or the prevention of its continuance."
In this case, and unlike in Newsom II, Plaintiffs provide substantial evidence that the protests at the Portland ICE facility were not significantly violent or disruptive in the days—or even weeks—leading up to the President's directive on September 27, 2025. The record evidence establishes that while disruption outside the Portland ICE facility peaked in June of 2025, federal and local law enforcement officers were able to "quell[] . . . the disorder." As of September 27, 2025, it had been months since there was any sustained level of violent or disruptive protest activity in Portland. During this time frame, there were sporadic events requiring either PPB monitoring or federal law enforcement intervention, but overall, the protests were small and uneventful.
This deployment of additional federal law enforcement officers reduced the level of disorder between June and September to the point that in the immediate days leading up to the federalization order, around twenty or fewer protesters gathered outside the ICE Facility and "FPS indicated no issues or criminal reports." On September 26, the eve of the President's directive, law enforcement "observed approximately 8–15 people at any given time out front of ICE. Mostly sitting in lawn chairs and walking around. Energy was low, minimal activity." It is clear that "the regular forces," i.e. FPS and additional federal law enforcement, were able to execute the laws of the United States. . . .
"[A] great level of deference" is not equivalent to ignoring the facts on the ground. As the Ninth Circuit articulated, courts must "review the President's determination to ensure that it reflects a colorable assessment of the facts and law within a 'range of honest judgment.'" Here, this Court concludes that the President did not have a "colorable basis" to invoke § 12406(3) to federalize the National Guard because the situation on the ground belied an inability of federal law enforcement officers to execute federal law. The President's determination was simply untethered to the facts. . . .
[T]he following "key characteristics" provide the boundaries for what constitutes a "rebellion": First, a rebellion must not only be violent but also be armed. Second, a rebellion must be organized. Third, a rebellion must be open and avowed. Fourth, a rebellion must be against the government as a whole—often with an aim of overthrowing the government—rather than in opposition to a single law or issue. Here, the protests in Portland were not "a rebellion" and did not pose a "danger of a rebellion," especially in the days leading up to the federalization. As discussed above, Defendants presented evidence of sporadic violence against federal officers and property damage to a federal building. Defendants have not, however, proffered any evidence demonstrating that those episodes of violence were part of an organized attempt to overthrow the government as a whole, and therefore, Defendants have failed to show that the President had a colorable basis to conclude that Section 12406(2) was satisfied.
Furthermore, this country has a longstanding and foundational tradition of resistance to government overreach, especially in the form of military intrusion into civil affairs. "That tradition has deep roots in our history and found early expression, for example, in . . . the constitutional provisions for civilian control of the military." Laird v. Tatum, 408 U.S. 1, 15 (1972); see also James Madison, Address to the Constitutional Convention (1787), reprinted in 1 Records of the Federal Convention of 1787, at 465 ("A standing military force, with an overgrown Executive will not long be safe companions to liberty. The means of defence [against] foreign danger, have been always the instruments of tyranny at home."). This historical tradition boils down to a simple proposition: this is a nation of Constitutional law, not martial law. Defendants have made a range of arguments that, if accepted, risk blurring the line between civil and military federal power—to the detriment of this nation.
Gordon S. Wood Weighs in on Akhil Reed Amar's Born Equal: Remaking America's Constitution, 1840-1920
Praise from Wood for what I think is the best new book this year.
On September 16, Yale Law professor Akhil Reed Amar published Born Equal: Remaking America's Constitution, 1840-1920, the second volume of an in-progress three-volume history of America's constitutional project from 1760 to the present day. The first volume, The Words That Made Us: America's Constitutional Conversation, 1760-1840, was published in 2021. I much liked both volumes (more on that below), and I'm delighted to report that America's greatest historian of the Founding era, Gordon S. Wood, has recently publicly praised them as well.
Wood wrote a detailed review of Born Equal that he read aloud at a September 19 Yale Law School conference on originalism that I organized; Wood labeled Born Equal "wonderful" and went on to say that,
[I]t is the most extraordinary kind of history that I have read…. [Akhil] has paid tribute to the power of equality in our political and constitutional lives as no other historian ever has.
The complete transcript of Wood's glowing remarks may be found here, and may well be published in more polished form in the months ahead.
Kirkus Reviews awarded Born Equal a rare and much-coveted Kirkus Star and The Wall Street Journal ran a rave review by Adam J. White. The New York Times review by Jeff Shesol was generally favorable, but criticized Akhil's staunch defense of originalism. Read Born Equal and decide for yourself!
As I mentioned, I liked both volumes very much. Back in 2021 I described The Words That Made Us as:
Today in Supreme Court History: October 5, 1953
10/5/1953: Chief Justice Earl Warren takes the oath.
Sunday Open Thread
What's on your mind?
The Proposed "Compact for Academic Excellence in Higher Education" and the First Amendment
[1.] There's a lot going on in the Trump Administration's proposed "Compact," and there's a lot that we might want to ask about it. Some questions would have to do with whether particular demands (such as a tuition freeze or a 15% cap on foreign students or mandatory U.S. civics classes for foreign students) are a good idea. Some might be and some might not be. Some might have to do with the way that the Compact would rebalance power between universities and the federal government.
Some might have to do with whether particular demands (for instance, the requirement that universities require all applicants to take standardized admission tests) should be implemented top-down on a one-size-fits-all basis. The federal government may have the power to impose certain conditions on the recipients of government funds, but that doesn't mean that it necessarily should do so. This question of when conditions become excessive micromanagement perennially arises when it comes to government contracts and grants.
Some questions have to do with whether the Executive Branch can impose these conditions through just an announcement, whether this would require notice-and-comment regulatory rulemaking, or whether it would require express Congressional authorization. Similar questions have arisen in the past with regard to whether, for instance, Title IX should be understood to mandate university investigation of alleged sexual assault by students; whether it should be understood as mandating a preponderance-of-the-evidence standard in such situations rather than a clear-and-convincing-evidence; and other matters. In particular, the Compact seems to contemplate conditions on universities' "preferential treatment under the tax code," which I expect would likely require revisions to the tax code. But there too there have been controversies about where the Executive Branch has power to read provisions into tax exemption requirements that hadn't been expressly authorized by Congress (see, e.g., Bob Jones Univ. v. U.S. (1983)).
Still, I can at most note such matters—important as they are—since they aren't within my core area of expertise. So let me turn instead to the First Amendment problems posed by the Compact, which I am more knowledgeable about. I don't want to suggest that these are the most important issues, but that's where the light is best for me, so maybe I can find some keys there.
[2.] As a general matter, when the government is providing funding or other benefits for private parties' speech, it may not discriminate based on viewpoint. Thus, for instance, Rosenberger v. Rector (1995), held that when a public university funds student newspapers, it can't exclude ones that convey religious viewpoints. The Court there expressly "reaffirmed the requirement of viewpoint neutrality in the Government's provision of financial benefits." Many other precedents say the same.
To be sure, the government may create programs for conveying its own preferred viewpoints. As Rust v. Sullivan (1991) noted, Congress can set up a National Endowment for Democracy without setting up a National Endowment for Communism. But the Court has distinguished such government speech, which the government can select based on viewpoint, from government programs that subsidize a diverse range of private speech, as in Rosenberger. To quote Rosenberger again,
