A characteristically excellent analysis, from a leading scholar of the subject, at his Executive Functions substack. An excerpt:
A lot of people over the next few days are going to argue with confidence that President Trump violated, or didn't violate, the Constitution when he bombed Iran over the weekend without congressional authorization.
You might think that the Constitution would provide a clear answer to such a momentous question. But it doesn't.
Or you might think I would know the answer, since I (with Curt Bradley and Ashley Deeks) have a casebook that covers the issue; I have written about it for decades; and I served in the Office of Legal Counsel that is the storehouse of executive branch legal opinions on the topic, one of which has my name on it. But I don't know the answer.
I don't know the answer because I do not think there is anything approaching a settled or clear normative framework for analysis.
Colorado's 1876 Constitution is replete with provisions to prohibit corporate welfare, special privileges for government-favored big business, and government debt without voter consent. The protections have been fortified and extended by constitutional amendment, most notably in the 1992 Taxpayer's Bill of Rights. Yet for the past century, the Colorado Supreme Court, usually in cooperation with the other two branches, has nullified the taxpayer protections of the Colorado Constitution. This sad story is told in my new article for the Denver University Law Review's annual Tenth Circuit Symposium, Negating Democratic Consent: How the Colorado Supreme Court has Nullified Colorado Constitutional Limits on Taxes, Debt, and Corporate Privilege, 102 Denver Univ. Law Review 449 (2025). (The symposium includes states law articles on 10th Circuit states.)
For example, Colorado Constitution article XI, section 1, forbids government debt on behalf of corporations in the most comprehensive language possible:
Neither the state, nor any county, city, town, township or school district shall lend or pledge the credit or faith thereof, directly or indirectly, in any manner to, or in aid of, any person, company or corporation, public or private, for any amount, or for any purpose whatever; or become responsible for any debt, contract or liability of any person, company or corporation, public or private, in or out of the state.
The next section of the Constitution, article XI, section 2, also uses the broadest language possible to outlaw government aid to corporations:
Neither the state, nor any county, city, town, township, or school district shall make any donation or grant to, or in aid of, or become a subscriber to, or shareholder in any corporation or company or a joint owner with any person, company, or corporation, public or private, in or out of the state . . .
The statutory text contains certain narrow exceptions. For example, a government might acquire ownership of a corporation by forfeiture or escheat. By constitutional amendment, the people have created other exceptions, allowing for a government student loan programs and for government investment in energy industries.
The Colorado Supreme Court, however, has usurped for itself the power of constitutional amendment. Today, the Court does not enforce the text of the anti-corporate welfare sections of the Colorado Constitution, with their blanket language such as "directly or indirectly, in any manner to, or in aid of." Instead, according to the court, all corporate welfare is permissible whenever the legislature rationally believes that the welfare might have some beneficial effects. The plain text of the Colorado Constitution has in effect been replaced by the court's lawless imposition of a rational basis test that legalizes precisely what the Colorado Constitution was enacted to forbid.
The conservatives "thought they were constrained from speaking by a jurisprudence that bars them from invoking truths beyond the text of the Constitution."
In Civitas Outlook, I discussed how the Skrmetti majority refused to even acknowledge the right of the people to govern based on morality. Instead, the Court hid behind technical and legal formalisms. Hadley Arkes states the issue far better than I ever could. Here is a snippet:
The truth that dares not speak its name here is that this wide array of gender-affirming therapies and surgeries is simply predicated on a falsehood. And yet those are the words that the conservative justices apparently see themselves as barred from speaking. Something in conservative jurisprudence holds them back from appealing to the inescapable and objective truth that lies at the heart of these cases. But without it, what were these accomplished jurists able to explain here? What was their ground of justification in overriding the judgments of those parents who were absorbed in the grief and confusion that seized their children? . . . .
The only "instruction" that would be relevant, Justice Thomas, is the unyielding fact that the child is in a state of confusion: he is not occupying some body apart from his own; his sex was not "assigned" at birth but marked inescapably in the organs of reproduction, in the arrangement of his body. His sex is immutable and printed plainly upon him.
Those were the words that Chief Justice Roberts and five colleagues could not move themselves to speak. Or they thought they were constrained from speaking by a jurisprudence that bars them from invoking truths beyond the text of the Constitution—even on the question of what is a human being, the bearer of rights, and when does that "human person" begin? . . .
Without those points in place, the judgment of the Court simply dissolves into a chain of ipse dixits. Why was it not legitimate for the parents of stricken youngsters to order the procedures that might relieve their "gender dysphoria?" Answer: The legislature of Tennessee did not think it a legitimate medical remedy to choose—even though the children and the parents did not share that judgment and were willing to take their risks. One judgment had to prevail, and it was the judgment backed by the power of the State. To put a high finish on it, that "power" represented the authority of a people to govern itself through elected representatives. But when the people speak through their representatives, and override the judgments of parents about their children, they are still obliged to say something more than "we have brute the power to impose this judgment through brute enactment of the law."
Hadley closes by comparing Chief Justice Roberts's decision to Justice Holmes's majority decision in Buck v. Bell.
Unless the Court can explain the grounds that truly compelled its judgment in this case, conservative jurisprudence falls back, as it ever has, on nothing more, as Justice Holmes had it, than the power of the majority to rule and get its way.
Roberts is fond of citing Holmes's Lochner dissent. I don't think the Chief will appreciate the apt comparison to one of Holmes's other decisions that did not age so well.
We should recall that Holmes's grand opinion quickly drew the accolades of the academy and the educated class, quite as enthralled with the romance of euthanasia, as their latter-day counterparts have been about climate change. And all of the ingredients are now again in place: a "controversial medical" procedure, along with people with medical degrees more than eager to show just how they do it; and the case for it seems compelling enough to be enacted into law by those educated people, often with law degrees, who fill out the legislature. But might we not be forgiven for asking: Is this the best that conservative jurisprudence can really serve up now, a concurring opinion in Buck v Bell?
I think my piece, Arkes's piece, and some other emails I've received, reflect a growing awareness of the current Court's deficiency. Since Justice Scalia's passing, I think the Court has lost its way. The fixation on installing Justices who will overrule Chevron has neglected moral foundation that Justice Scalia brought to the Court. Well, Chevron is gone and Roe is overruled. What's next? I think the answer is letting the people govern themselves once again. I do not think it is necessary for the Justices to themselves judge based on any sense of natural law. Unlike Arkes, I do not consider myself a natural law theorist--though I am JWI-curious. Rather, it is enough for judges to be comfortable letting the people govern based on these principles--even when laws might offend modern sensibilities of individual autonomy. I'll admit my views on this topic have changed over the years. I was always persuaded by Scalia over Kennedy as a legal matter, but I didn't quite fully understand why till I read Skrmetti. Now, with the emptiness of Chief Justice Robert's decision, things seem far clearer.
The Court seems open to that end in the Establishment Clause context, such as in Kennedy v. Bremerton and Carson v. Maikin. But the Court is still living in Justice Kennedy's shadow with regard to the Due Process and Equal Protection Clauses. Current discussions about overruling Obergefell miss the point. If the people wish to maintain same-sex marriage, they can make that choice. But, the Court should allow the people to make that choice. As Scalia wrote in Obergefell, the Court disregarded "the freedom [of the people] to govern themselves."
Susette Kelo's famous "little pink house," which became a nationally known symbol of the case that bears her name (Institute for Justice). (Institute for Justice.)
Today is the 20th anniversary of Kelo v. City of New London, perhaps the most controversial property rights decision in the history of the Supreme Court. Although the Fifth Amendment only permits the taking of private property for "public use," the Court ruled that the transfer of condemned land to private parties for "economic development" is permitted by the Constitution. Building on earlier decisions such as Berman v. Parker (1954), a closely divided 5-4 majority ruled that virtually any potential benefit to the public qualifies as a "public use." The development project for which the property was taken failed so miserably that, for many years, the condemned land was used only by feral cats.
Feral cat on the site of one of the properties condemned in the Kelo case, 2011 (photo by Jackson Kuhl).
The first is an article at the Brennan Center State Court Report website, assessing the massive state reaction against Kelo. Many states enacted stronger protection for property rights, but it is not a fully adequate substitute for systematic nationwide enforcement of the Fifth Amendment Public Use Clause:
Twenty years ago today, the Supreme Court decided the controversial case Kelo v. City of New London, which held that private "economic development" is enough to satisfy the Fifth Amendment requirement that the government can only condemn property for a "public use." Kelo generated a massive political and judicial backlash, with 45 states enacting eminent domain reform laws in response and several state supreme courts repudiating Kelo as a guide to interpreting their state constitutions.
This reaction highlights potential synergies between litigation and political action, and the valuable role of state constitutions in protecting important individual rights when federal courts fail. But it also shows how uneven state protection of rights is not a fully adequate substitute for rigorous nationwide enforcement of the federal Constitution….
Kelo provoked a broader backlash than virtually any other modern Supreme Court ruling. The public overwhelmingly sympathized with property owners who had their homes taken for a dubious project, rather than with the city government and the private organization that took over the land. Polls showed that over 80 percent of the public disapproved of the ruling. It was widely condemned on both right and left, including by figures as varied as then-Rep. Bernie Sanders (D-VT) on the far left and radio talk show host Rush Limbaugh on the far right. Over the next few years, 45 states enacted eminent domain reform laws in reaction to the decision — the most widespread state legislative response to a Supreme Court decision in American history….
In a famous 1977 article, Supreme Court Justice William Brennan emphasized that state constitutions can often provide stronger protections for individual rights than they get under the Supreme Court's interpretation of the federal Constitution. The backlash against Kelo is in many ways a vindication of his thesis.
The state reaction to Kelo is also a dramatic example of how litigation and political action can be mutually reinforcing. Before Kelo, most Americans had little idea that eminent domain abuse was a significant problem or that it could be used to displace people from their homes in order to transfer the land to private interests….
It took the publicity surrounding Kelo to focus public attention on this dismaying reality. The resulting backlash — combined with forceful dissenting opinions by Justices Sandra Day O'Connor and Clarence Thomas — also helped lead many legal elites to rethink "public use," breaking the seeming consensus established by Berman. State court decisions rejecting Kelo as a guide to their state constitutions are an example of that trend…
But for all its successes, the political and judicial reaction against Kelo fell far short of ending the problem of abusive condemnations for transfer to private interests. As described in my book, about half of the new state laws provide little or no meaningful new protection for property owners against private "economic development" takings. They give the appearance of reform, but not the reality. In most cases, this sleight-of-hand was achieved by banning takings for "economic development" while at the same time still allowing condemnation of "blighted" property under a definition of "blight" so broad that virtually any property could be declared blighted…..
As a result, abusive takings continue in many states, ranging from a condemnation for purposes of building a pipeline that may never get built, to efforts to suppress construction of affordable housing, and even a plan to condemn a church to build pickleball courts. In much of the country, protection for property rights is much stronger than it was before Kelo. But state-by-state protections for constitutional rights are not a fully adequate substitute for systematic enforcement of the federal floor established by the Bill of Rights….
Some argue that leaving the issue to state and local governments promotes local diversity. But we can achieve even greater localism and diversity by letting each property owner determine for themselves how their land should be used. Protecting constitutional property rights is the ultimate localism.
As noted in the Brennan Center article, there is a real chance the Supreme Court might overturn Kelo, but earlier this year the justices passed up a case that would have been excellent opportunity to do just that:
Four current Supreme Court justices have expressed interest in revisiting or overruling Kelo. But the Court has so far refused to take a case raising that issue. Earlier this year, the justices chose not to review Bowers v. Oneida County Industrial Development Agency, a case brought by the Institute for Justice, the same public interest group that had represented the property owners in Kelo. I and many other property rights advocates believed Bowers to be an ideal vehicle for this issue.
The second article is part of a forthcoming Yale Journal on Regulation symposium on the 20th anniversary of the case. My contribution, entitled "Public Use, Exclusionary Zoning, and Democracy," is available for free download on SSRN. Here is the abstract:
The twentieth anniversary of Kelo v. City of New London is a good opportunity to consider the broader significance of public use for constitutional theory, and to explore parallels between the "public use" issue at stake in that case, and another major issue in constitutional property rights under the Takings Clause: exclusionary zoning. In the twenty years since Kelo, exclusionary zoning and the housing crisis it has caused have emerged as major issues in public policy and legal debate. Kelo famously ruled that the Fifth Amendment requirement that takings must be for a "public use" does not bar the employment of eminent domain to take homes for privately owned "economic development." The Court endorsed a broad definition of "public use" that included almost any disposition of condemned property that might benefit the public in some way. Exclusionary zoning – defined here as regulatory restrictions on the types of housing that can be built in a given area - is a major factor in the national housing crisis, that has increased housing costs, prevented millions of people from "moving to opportunity," and impaired economic growth and innovation. opportunities. There are striking and largely unnoticed parallels between the "public use" question decided in Kelo and the constitutional issues raised by exclusionary zoning.
Part I highlights the strikingly similar history of the two issues. In both cases, there is a strong originalist argument that the policy in question – private-to-private condemnations in one case, exclusionary zoning in the other – violate the property rights provisions of the Fifth Amendment. The former violates the requirement that the use of eminent domain be for a "public use;" the latter that severe restrictions on owners' rights to use their land require "just compensation" under the Takings Clause. But, in both cases, the Supreme Court and federal courts generally have taken a highly deferential approach since the rise of Progressive and New Deal-era skepticism of property rights. That skepticism was in large part driven by concerns that judicial protection for property rights is undemocratic, inhibits government planning, and tends to benefit the rich at the expense of the poor and disadvantaged.
Part II outlines ways in which the traditional conventional wisdom on these two issues is wrong. Judicial deference on both public use and exclusionary zoning has greatly harmed the poor and disadvantaged, particularly racial minorities. Moreover, stronger judicial review can actually further "representation-reinforcement" in two ways: by giving voice to groups excluded from the political process, and by empowering them to "vote with their feet."
Part III briefly highlights some synergies between judicial enforcement of public use limitations on eminent domain, and enforcement of restrictions on exclusionary zoning. Both help empower people to live where they wish. Striking down exclusionary zoning would make it harder for local governments to keep people out; Reversing Kelo would make it harder for them to expel those already living in the area. Opponents of exclusionary zoning could also potentially learn useful lessons from the Kelo experience on how litigation can be effectively combined with political action.
"[P]ublic condemnations, op-eds, and official complaints ... through proxies are independent constitutional violations" if the officials "engaged in conduct that was motivated by the plaintiff's protected speech and had the requisite chilling effect on First Amendment activity."
Jack Lipton was a prominent professor and administrator at Michigan State University, and in 2023-24 "he served as the Faculty Senate Chair," "the liaison between the MSU faculty" and the MSU Board of Trustees, which is elected statewide. He got into a dispute with two members of the BOT, Chair Rema Vassar and member Dennis Denno. Here's the backstory, from the May 28 decision by Chief Judge Hala Jarbou (W.D. Mich.) in Lipton v. Mich. State Univ. Bd. of Trustees(appeal pending):
[According to the Complaint, on] October 20, 2023 (the early days of Lipton's tenure as the Faculty Senate Chair), [BOT member Brianna] Scott sent an open letter to her fellow BOT members. The letter accused BOT Chair Vassar of ethical violations and called for Vassar's resignation. A week later, on October 27, 2023, the BOT held a highly attended meeting to discuss Vassar's alleged misconduct and whether she should resign. Lipton spoke at this meeting in his capacity as Faculty Senate Chair, reading a resolution the Faculty Senate passed that called for Vassar's resignation.
According to the amended complaint, the meeting was contentious and chaotic, and whenever "any meeting attendee spoke in support of holding Vassar accountable for her actions as outlined in Scott's letter, Vassar supporters interrupted and jeered them and attempted to prevent them from completing their statements." The typical rules regarding permission to speak were ignored, and the BOT Secretary was pressured to allow nonregistered speakers to voice their support for Vassar. There was a lack of order, culminating in police officers escorting at least one attendee from the meeting.
After the meeting, a reporter asked Lipton whether he thought the faculty's concerns, and the general allegations against Vassar, had been sufficiently addressed. Lipton, clarifying that "he would speak [to the reporter] as a private individual and not on behalf of the Faculty Senate," said: "The board meeting yesterday, filled with Chair Vassar supporters, demonstrated Trustee Scott's charges of intimidation and bullying in action. The chaos brought and disrespect shown by her supporters could have been stopped by a single statement from Chair Vassar, yet she elected to let the mob rule the room."
In the wake of Lipton's comment, Vassar and her BOT colleague Denno allegedly began a retaliation campaign against Lipton. Vassar and Denno met with MSU students, encouraging them to publicly condemn Lipton and file complaints of racial discrimination against him. Vassar's supporters and associates published statements and op-eds calling Lipton racist, anti-Palestinian, and anti-Muslim, citing his use of the term "mob" to describe the crowd. According to a third-party investigator that MSU hired, Vassar and Denno advised students and supporters on how to attack Lipton for his statement, coordinating with them on the phrasing of these public condemnations and complaints.
"Yet, Dobbs did not repudiate the basis of Roe and Casey, the notion that legislatures are not empowered to enact laws based on public notions of morality. And Skrmetti refused to acknowledge that foundational basis of our republic."
I often ask students two questions inspired by Justice Antonin Scalia: identify a decision where you disagree with the outcome, but agree with the reasoning, and identify a decision where you agree with the outcome, but disagree with the reasoning. These questions serve as a gut-check to ensure that their reasoning does not simply follow their policy preferences. Students generally answer the first question with ease. Justice Scalia, for example, often cited his vote to protect a protester's First Amendment right to burn an American flag. But students have a much tougher time with the second question. Usually, if they agree with the bottom line of an opinion, they find a way to accept the reasoning, even if not perfectly.
For me, United States v. Skrmetti falls into the second category. The Court, by a 6-3 vote, held that Tennessee can ban doctors from "transitioning" minors to the opposite sex. This holding would have seemed so obvious only a generation ago. Yet, in a short span, elite opinion shifted such that lower court judges and members of the Supreme Court came to believe this law was clearly unconstitutional. The majority opinion by Chief Justice John Roberts, as well as concurrences by Justices Clarence Thomas, Amy Coney Barrett, and Samuel Alito, got the bottom line correct. But upon reflection, I have doubts they had the best legal argument. Justice Sonia Sotomayor's dissent proved more persuasive than I expected–not a sentence I write very often. In short, Tennessee denied certain medical treatment to minors in large part based on their biological sex, and under longstanding precedent, sex-based classifications are reviewed more stringently.
That doesn't mean the Tennessee law was unconstitutional. Indeed, I think the state has such a strong interest in protecting children — especially from harm by their parents and doctors — that the law would still pass constitutional muster. But the majority opinion, and to a lesser extent the concurrences, engaged in hyper-technical readings of the statute that distracted from the real legal issues. To hear Chief Justice Roberts tell it, Tennessee simply issued a mundane regulation about which medical treatments are available for minors. But this approach ignored the real reason why Tennessee and so many other states have enacted such laws: the legislatures morally disapprove of transgenderism for minors, and sought to prevent children from medically transitioning to another sex. Full stop.
Here, I think, is the key paragraph:
Dobbs v. Jackson Women's Health Organization (2022) rightly overruled Roe and Casey. This decision returned the question of abortion to the elected branches. Yet, Dobbs did not repudiate the basis of Roe and Casey, the notion that legislatures are not empowered to enact laws based on public notions of morality. And Skrmetti refused to acknowledge that foundational basis of our republic. Indeed, Justice Barrett paid homage to Justice Kennedy. She wrote, "an individual law 'inexplicable by anything but animus' is unconstitutional." This was the essence of the line of cases stretching from Romer to Obergefell. It is dispiriting that a former Scalia clerk has abandoned her old boss's mantle and taken up with his jurisprudential nemesis. And I cannot fathom why Justice Thomas signed onto Barrett's concurrence. (There is still time for him to change his vote before the opinion is officially reported.) The right answer, as Thomas and Scalia argued for decades, is that unless the Constitution expressly protects a constitutional right or class, a law motivated by moral disapproval is valid.
I hope this essay will stimulate discussion about how the Court--an even apparently Justice Thomas--has lost its way since Justice Scalia's passing.
Sunday's Judicial Notice (David Lat) reminds us that lawyers shouldn't call the judge "honey." But there are other names you might also want to avoid—perhaps even more so—as we learn from Tuesday's opinion by Connecticut Supreme Court Chief Justice Raheem Mullins in Johnson v. Superior Court:
As a self-represented party, the plaintiff filed a petition for a writ of habeas corpus, alleging issues with his medical treatment while in the custody of the respondent, the Commissioner of Correction. After it addressed various pretrial motions, the trial court conducted the first day of the habeas trial on April 4, 2023.
On May 4, 2023, the trial court resumed the plaintiff's habeas trial. The hearing was held virtually, with the plaintiff, counsel and the witnesses all appearing onscreen. Several witnesses were present virtually and were prepared to testify. After the court asked the parties to identify themselves, the plaintiff identified himself as "Gregory Johnson, man. Everybody know[s] who I am. I don't got time for that." Thereafter, the following colloquy occurred:
"The Court: Mr. Johnson, I'm going to tell you right now. You've been here. You know you need to identify yourself.
"The [Plaintiff]: I identified myself (indiscernible).
"The Court: Just do what you need to do, Mr. Johnson.
"The [Plaintiff]: I identified myself already, man. I ain't got time for that….
"The Court: All right. Mr. Johnson, one more, and the hearing is over for the day. You understand? You're not at—
"The [Plaintiff]: I don't care.
"The Court: You're not out in the yard, Mr. Johnson—
"The [Plaintiff]: I don't care.
"The Court: —with your buddies….
"The Court: [The plaintiff], clearly, has forgotten the decorum of the courtroom. It's a regular context with [the plaintiff's] believing he is talking to one of his friends in the yard as opposed to the court.
Parikh is the elected Hamilton County clerk of courts…. In May 2022, Parikh issued a policy eliminating remote online access to court records in residential-eviction cases older than three years from the date of judgment satisfaction. He states that the purpose of the policy is to prevent members of the public, such as employers and landlords, from inappropriately relying on court documents when considering employment, housing, and other needs of individuals. "[I]t was and remains the belief of the Clerk's Office," he explains, "that these online inquiries led to misidentification of parties with similar names and produced inaccurate and unfair results that harmed citizens." The public remains able to access the records in person at the clerk's office during regular business hours.
The Hamilton County Municipal Court judges objected, and the Ohio Supreme Court sided with the judges:
Parikh restricted online access to court records for the policy reason of protecting what he viewed as the best interests of defendants in closed eviction cases. As discussed below, such a decision may be made only by the municipal-court judges, and they may order the clerk to rescind actions that intrude upon their judicial discretion.
Access to court records promotes openness, transparency of process, and accountability. This principle underlies which states that "[c]ourt records are presumed open to public access." … [A]lthough the Rules of Superintendence do not require that courts or clerks make all case records available online, the rules recognize that the public can access records more easily online than in person at the clerk's office, and they treat discontinuing online access as a means of restricting access to records….
Earlier today I wrote about the New York Times expose concerning the grading of a student seminar paper at the University of Florida. I've now had a chance to read the paper.
First, from a technical perspective, the paper is very well done. The writing is easy to understand. The footnotes are expertly bluebooked. The sentences are bit too long for my taste, but many law professors like long sentences with many clauses. I don't have the rubric, but I would imagine the student would receive full credit, or near-full-credit for these technical elements.
Second, the author also presents a fairly detailed analysis of modern originalist scholarship. He accurately describes the views of McGinnis and Rappaport, Randy Barnett, and Adrien Vermeule. The author brings in discussion of the Federalist Papers, records from the Constitutional Convention, and early congressional debates over slavery. Again, I don't have the rubric, but I would imagine the student would receive full credit, or near-full-credit for the literature/background information section.
Third, I'll turn to the substance. The basic argument is that under what the author describes as National Constitutionalism, the Constitution should be understood to protect the sovereignty of "the People." And, following Verdugo-Urquidez and Heller, "the People" are Americans, and not aliens. But the author doesn't stop there. Citing records from the early republic, he concludes that the founding generation sought to discourage immigration from non-White countries. He quotes Professors Gabriel Chin and Paul Finkelman who wrote, "whether or not they supported slavery, a majority of [the Founders] unambiguously conceived of the United States as a White country." (I'm not sure anyone would disagree with this point.)
This analysis leads the author to three conclusions. First, the author would read Article IV, Section 4 to permit the states to play a role to prevent the "invasion" of migrants. (This section more-or-less tracks Judge Ho's concurrence, and arguments advanced by the Trump DOJ.) Second, the author would allow the courts to strictly scrutinize immigration policies that would "dissolve the people and elect another." Third, the author would subject discrimination against aliens to mere rational basis review. He would also overrule Plyler v. Doe and Wong Kim Ark. The author recognizes that his positions are in tension with the Fourteenth and Fifteenth Amendments. But he cites the longstanding debates about whether these amendments were properly ratified, and whether they are substantively unconstitutional. If these amendments were not ratified, then we are left with the Constitution without the Reconstruction Amendments.
Here is my assessment. The article is laid out backwards. At the very end, the author contends that the Fourteenth and Fifteenth Amendments may have never been properly ratified. And his conception of National Constitutionalism is premised on those two amendments never changing the constitutional order. Or alternatively, he contends that the Fourteenth and Fifteenth Amendment should have no bearing on how immigration policy is understood. But if these points are wrong, then many of his points would not follow.
Were I to have advised the student on the paper, I would have had him reverse the entire theme. At the outset, the author would have the reader assume--at least for purposes of a thought experiment--that the Reconstruction Amendments were never ratified. Then, the reader would imagine that Congress adopted twentieth-century style open immigration laws. Would those laws violate the original Constitution? If the federal government failed to stop the flow of migrants, would the states then have the power under Article IV to repel the invasion? Could courts declare those laws as unconstitutional?
The author does repeatedly refer to a preference for White people, and blocking non-White immigrants. At least in this paper, the Author frames this preference in terms of how the Framers would have understood immigration--I think he accurately describes that history. Now, with the benefit of hindsight, we know that the author was in fact also articulating his own policy preferences. But based on the paper, the author was presenting this thesis as a matter of scholarship.
Where does this leave us? Is this the best student note I've ever read? No. Was it executed well from a technical perspective? Yes. Was it thoroughly researched? Yes. Did it present a coherent thesis based on history? Yes. Was it well organized? Not really. The article under-developed the core obstacle--the ratification of the Reconstruction Amendments--and doesn't explain how the Supreme Court would overrule certain landmark precedents. But these sorts of shortcomings are typical of law student papers. What would I give the paper, having never met the student or heard his presentation? Probably a B+ or maybe an A- if I was feeling generous. Then again, I didn't read any of the other papers in the class, so it is tough to compare. And remember, under the syllabus, the final paper is worth only 65% of the final score, so we do not know what other elements the student contributed. A final grade of A or A+ is well within the bounds of reasonable grading.
The strikes violate both the Constitution and the 1973 War Powers Act. Whether they are good policy is a more difficult question. This could turn out to be a rare instance where one of Trump's illegal actions has beneficial results.
Yesterday, US warplanes struck three Iranian nuclear sites. President Trump did not make any effort to get advance congressional authorization for this action, or even to consult with Congress. It is, therefore, a violation of both the Constitution and the 1973 War Powers Act. But it is possible this will turn out to be a rare instance where one of Trump's illegal actions has beneficial consequences.
Michael Ramsey, prominent conservative legal scholar and war powers expert has an excellent explanation of why Trump's air strikes violate the Constitution:
My longstanding view, developed in a series of articles, is that the Constitution's original meaning requires Congress to approve any material initiation of military hostilities by the United States. As explained at length in Textualism and War Powers, that conclusion rests principally on two points:
(1) the original meaning of "declare" war includes both formal announcements of the initiation of a state of war and the use of military force in a way that creates a state of war. In the eighteenth-century sense, war could be "declared" by words or by actions (and indeed, wars in the eighteenth century and earlier were often not begun with formal announcements but simply by launching military action -- a point noted by Hamilton in The Federalist).
As a result, the Constitution's assignment to Congress of the power to "declare" war gave Congress power over the decision to go to war, whether through formal announcement or by the use of force. A wide range of leading members of the founding generation -- including Washington, Hamilton, Madison, and James Wilson -- described Congress' power to declare war as exclusive (that is, that it was a power of Congress and therefore not a power of the President).
(2) the original meaning of "war" broadly included most uses of sovereign military force, including ones with limited scope and objectives. An early Supreme Court case, Bas v. Tingy, recognized that there could be general war or limited war -- both of which came within Congress' war power. The Bas case involved the so-called "Quasi-War" between the U.S. and France in the late 1790s, which consisted only of naval engagements. Notably, essentially everyone at the time -- including advocates of presidential power such as Hamilton and President John Adams -- thought the U.S. actions in the Quasi-War needed to be authorized by Congress (which they were).
Applied to the U.S. airstrikes on Iran, this reading seems to require congressional approval. The U.S. strikes constitute war in the original constitutional sense of the term: they are a use of force against a foreign sovereign adversary to compel an outcome. Although their objectives may be limited to forcing Iran to end its nuclear program, such a limited military objective still constitutes a war (albeit a limited war). And initiation of war, whether general or limited, and whether done by formal announcement or simply by the use of force, requires Congress' approval under the Constitution's declare war clause.
As Ramsey notes, there is an argument that relatively small-scale military actions don't qualify as wars and therefore are exempt from the requirement of congressional authorization. Even if that argument is correct in some situations, it doesn't apply here. The objective of these strikes - dismantling Iran's nuclear program, and the potential scale of the fighting (Iran is a major regional power and has substantial retaliatory capabilities) differentiates this situation from very narrow one-off strikes, such as Ronald Reagan's 1986 air strike against Libya.
Ramsey also has a compelling response to the argument that this action is legally justified by Iran's earlier support of terrorist attacks.
Unlike many of Trump's egregious abuses of emergency powers, this action is far from unprecedented. Previous presidents have also violated the Constitution in this way. Most notably, as Ramsey points out, Barack Obama, in 2011, waged a lengthy air campaign against Libya, intended to help overthrow that country's dictator, Moammar Gaddafi. For those keeping score, I condemned Obama's action and repeatedly criticized him for violating the Constitution and the War Powers Act (see also here). But Obama's illegal actions don't justify Trump's (and vice versa).
Ramsey's analysis is based on originalism. He suggests there might be a "living constitution" case for justifying such actions, based on "the speed of modern warfare and the exigencies of terrorism and potential nuclear attack." I disagree. Modern warfare is indeed faster than that of the eighteenth century. But Congress can move faster, too. Under modern conditions, Congress can be swiftly convened even if it is not in session (which, today, it almost always is). In this instance, Trump had ample opportunity to seek congressional authorization. He just chose not to.
In addition to violating the Constitution, the air strikes also violate the War Powers Act. Section 3 of that legislation requires that "[t]he President in every possible instance shall consult with Congress before introducing United States Armed Forces into hostilities or into situations where imminent involvement in hostilities is clearly indicated by the circumstances." There was no such advance consultation here, even though it was obviously "possible" to do it (US strikes against Iran have been under consideration since Israel began its air campaign on June 13, if not before).
The War Powers Act also requires withdrawal of US forces from "hostilities" after 90 days, unless Congress has authorized further involvement. Obama ultimately violated this requirement in the Libya conflict; we'll see if Trump ends up doing so here.
Legal scholars and commentators have to be open to the possibility that an illegal action might nonetheless have beneficial results. Like Michael Ramsey, I acknowledge that could be the case here.
If the US air strikes (combined with earlier and ongoing Israeli actions) really do severely damage Iran's nuclear program, that would be a good thing. If they succeed in overthrowing Iran's brutal regime, that would be better still. Since coming to power in 1979, Iran's theocratic dictatorship has sponsored numerous terrorist attacks (including some against the US), supported brutal terrorist groups around the Middle East (including Hamas, Hezbollah, and the Houthis), and brutally oppressed its own people, including by repressing women and minority ethnic and religious groups. Almost any plausible alternative government would be better. There is no contradiction between recognizing all of that, while also condemning Trump's many abuses of power and authoritarian tendencies.
I left the field of security studies many years ago, and therefore must be cognizant of the limits of my expertise. Thus, I will not try to give any definitive assessment of the policy merits of this campaign. I will limit myself to just a few tentative points.
First, war is inherently dynamic. What the great German military theorist Carl von Clausewitz called "friction" is ubiquitous, making prediction difficult. As he also put it, in On War, "everything in war is very simple, but the simplest thing is difficult." Much depends on how Iran reacts to these strikes, and how the US and Israel respond in turn.
Second, I have little faith in this administration's ability to conduct any prolonged conflict competently. Among other things, Pete Hegseth is not a competent secretary of defense, and Tulsi Gabbard is not a competent head of the intelligence community. Trump himself is notorious for his ignorance and poor judgment. That doesn't guarantee a bad outcome. But it certainly reduces the odds of success.
Finally, even if the military action here turns out to be successful, waging another war without proper congressional authorization is still a dangerous precedent. There is good reason for that constitutional requirement, and we eroded it at our peril. See my 2021 Washington Post article on this subject, for some of the reasons why:
The constitutional requirement of congressional authorization is more than just a legal technicality. Not only does it prevent dubious conflicts begun at the behest of a single man; it also increases the chances of success if we do enter a conflict. If the president is required to get congressional authorization for war, he will be forced to build up a broad political consensus behind his decision; that increases the likelihood that we will stay the course until victory is achieved, as opposed to bailing out when difficulties arise.
If such a consensus is absent, it is usually best to avoid the conflict entirely. The failure of Obama's 2011 military intervention in Libya, — he called the lack of planning for the aftermath of that conflict his "worst mistake" as president — was partly caused by his decision to forgo building the necessary political consensus for congressional authorization.
Although U.S. airstrikes against Libya lasted for some seven months, and helped bring about the overthrow of the regime of Libyan dictator Moammar Gaddafi, the Obama administration claimed there was no need for congressional authorization for its actions, on the dubious ground that it did not involve a genuine war, or even "armed hostilities" under the War Powers Act. Subsequently, the country descended into chaos and ISIS-aligned groups and other dangerous organizations took over substantial parts of its territory; the United States largely walked away.
Yesterday, Richard Fausset of the New York Times published an article "A White Nationalist Wrote a Law School Paper Promoting Racist Views. It Won Him an Award." This article represents the worst of modern-day advocacy journalism. Fausset obviously has no idea how law school seminars are graded, and made no effort to learn. Moreover, it is pretty clear here that there is an ongoing disciplinary proceeding against the student, so no one at the law school is able to comment. Fausset uses that silence to further sully the reputation of everyone involved.
I'll start with a personal disclosure. The course in question was co-taught by Judge John Badalamenti. You may not know Judge Badalamenti, but you are probably familiar with a case he argued: Yates v. United States (2014). Yes, Badalamenti, as a federal public defender, successfully argued the fish case before the Supreme Court. I've known Badalamenti since then, and have chatted with him over the years. Last fall, I spoke at the originalism conference he organized, which hosted the entire Florida Supreme Court, several members of the Eleventh Circuit, and scholars from across the ideological spectrum. I include these facts to show the high regard that Badalamenti is held in by his community.
In the Fall of 2024, Judge Badalamenti taught a seminar at the University of Florida, titled ADVANCED CONSTITUTIONAL INTERPRETATION: ORIGINALISM AND ITS FOES. The syllabus is available online. (It is not clear if Fausset ever bothered checking it.) The syllabus explains how grades are assigned:
Grades will be based 25% on class participation, 10% on reflection papers, and 65% on final papers.
The paper in question was certainly a large chunk of the final grade, but was not the only factor. As I understand the policy at the University of Florida, the awarding of a "book prize" is not discretionary. It is automatically given to the student with the highest score. And in a small seminar with roughly a dozen students, this book prize is not particularly significant. It is not like a law school wide prize. Howard Wasserman, who teaches at nearby Florida International University, explained:
To people unfamiliar with law school, the phrase "book award" sounds more prestigious than it is. Yes, Judge Badalamenti recognized merit in the paper and Damsky can put the honor on his c.v. (assuming he graduates law school). But this is not akin to a college- or university-wide honor in a paper competition.
The fact that a student received a high grade in a small seminar is not worthy of a New York Times expose. Aren't there actual problems to write about?
On the merits, the argument that the Constitution, as originally written, favors white people stretches back to the founding, and was articulated by William Lloyd Garrison and others. I, for one, favor the Frederick Douglass and Lysander Spooner approach, but there is a scholarly debate in this area.
The entire premise of the NY Times article is that Judge Badalamenti gave a distinguished prize to an avowed white supremacist. But the timeline undermines the narrative. Again, the class concluded in December 2024. But the student's relevant social media posts did not arise until February 2025, and the most egregious statements were made in March 2025. Does Fausset bother explaining whether Badalementi was even aware of the student's comments during the class? No, it is all left to insinuation.
Faussett writes that Badalementi "has earned praise from both liberals and conservatives over the course of his career." The linked article includes this passage:
The federal judge in Florida overseeing a conservative group's lawsuit against Target's LGBTQ+ Pride marketing is a Trump appointee and a member of the Federalist Society, which champions individual liberty and traditional values.
These facts describing US District Judge John Badalamenti, presented against a highly politicized backdrop, suggest a particular political leaning that could influence the way he will rule in the case. What people may not know is that the 49-year-old jurist has liberal supporters, came from a humble upbringing and considers political motivations incompatible with his role as a judge. But defying expectations and challenging assumptions is nothing new for him.
. . . .
The diagnosis shortly after becoming a federal judge was devastating to hear, Badalamenti said. But he found a friend and mentor in another former public defender and US district judge at the time, who later joined the Supreme Court: Justice Ketanji Brown Jackson.
"She mentored me through these difficult times and continues to be a tremendous friend and source of positivity," Badalamenti said in a follow-up email.
Jackson, whom President Joe Biden appointed to the Supreme Court in 2022, declined to comment through a spokesperson, but the representative confirmed the justice's friendship with Badalamenti.
Yes, Judge Badalementi is friends with KBJ. And as a federal defender, he spent his career defending people of color. A quick google search shows that he is on the board of Gentlemen's Quest. This group helps high risk high school students gain entry to college. A quick review suggests that Judge Badalamenti is the only white person on the board. Moreover, the Senate Judiciary Committee questionnaire states that he "served as a volunteer mentor for inner city middle school students in the Tampa community." This is not a white supremacist. Did Fausset even ask Chat GPT about Badalamenti?
These hits on conservatives are so predictable and unfortunate. They slander a good judge who spent his career fighting for the rights of all people, all in service of an attack on originalism. Look at Fausett's biography:
I write about conservative culture and gun issues, as well as the ongoing election interference case against former President Trump and some of his allies in Fulton County, Ga.
Fausset was asked to investigate only one side of the spectrum. This is not journalism. As Rush would say, these are activists with bylines.
Diamond Alternative Energy v. EPA presented the question of whether fuel manufacturers had standing to challenge regulations of fossil-fuel vehicles. Justice Kavanaugh, writing for seven members, found that the fuel company had standing. Justice Jackson, in dissent, found that the plaintiffs lacked standing.
Jackson's dissent repeats the familiar refrain that the Supreme Court is pro-business, and is more likely to find standing for businesses backed by the Chamber of Commerce than for civil rights plaintiffs. Jackson writes:
Standing is a constitutional doctrine meant to promote judicial restraint. By design, it "'prevent[s] the judicial process from being used to usurp the powers of the political branches'" and "helps safeguard the Judiciary's proper—and properly limited—role in our constitutional system." United States v. Texas, 599 U. S. 670, 675–676 (2023). But standing doctrine cannot serve that important purpose if the Judiciary fails to apply it evenhandedly. When courts adjust standing requirements to let certain litigants challenge the actions of the political branches but preclude suits by others with similar injuries, standing doctrine cannot perform its constraining function. Over time, such selectivity begets judicial overreach and erodes public trust in the impartiality of judicial decisionmaking. . . .
Jackson continues that the Court "rests its decision on a theory of standing that the Court has refused to apply in cases brought by less powerful plaintiffs." She concludes that "[t]his case gives fodder to the unfortunate perception that moneyed interests enjoy an easier road to relief in this Court than ordinary citizens."
Justice Kavanaugh responds to Justice Jackson in a paragraph with a long string cite:
JUSTICE JACKSON separately argues that the Court does not apply standing doctrine "evenhandedly." Post, at 1 (dissenting opinion). A review of standing cases over the last few years disproves that suggestion. See, e.g., Alliance for Hippocratic Medicine, 602 U. S., at 374; United States v. Texas, 599 U. S., at 674; Haaland v. Brackeen, 599 U. S. 255, 291–292 (2023); Reed v. Goertz, 598 U. S. 230, 234 (2023); TransUnion LLC v. Ramirez, 594 U. S. 413, 417– 418 (2021); California v. Texas, 593 U. S. 659, 666 (2021); Uzuegbunam, 592 U. S., at 282–283; Thole v. U. S. Bank N. A., 590 U. S. 538, 541–542 (2020); Department of Commerce, 588 U. S., at 766–768.
Kavanaugh offers no actual analysis on this point. He simply lists a series of standing cases from the past five years that "disprove" Jackson's point that the Court is likely to find standing for "moneyed interests." Kavanaugh acts as if this point is self-evident. But there is a problem. The string cite doesn't actually make his case--or at least not without some substantial explanation.
Of the nine cases cited, only two are business cases. TransUnion found that only certain plaintiffs had standing to sue TransUnion. And Thole found that participants in a benefit plan lacked standing to sue the bank. These cases, which generally favor big business, do not rebut Justice Jackson's point.
Two of the case involve civil rights cases. Uzuegbunam found that a student had standing to challenge a University's censorship of his speech. And Reed found that a prisoner had standing to challenge a DNA testing statute. These cases sort of address Justice Jackson's point, but not directly.
The other cases concern ideological strategic litigation brought by states or public interest groups. First, Alliance for Hippocratic Medicine (2024) found that a non-profit lacked standing to challenge the FDA's approval of mifepristone. Second, United States v. Texas (2023) found that Texas lacked standing to challenge a Biden-era immigration policy. Third, Haaland v. Brackeen (2023) found that Texas (and private plaintiffs) lacked standing to challenge the enforcement of the Indian Child Welfare Act. Fourth, California v. Texas (2021) found that Texas (and private plaintiffs) lacked standing to challenge the constitutionality of the Affordable Care Act after the penalty was reduced to $0. Fifth, in Department of Commerce (2019), New York had standing to challenge the inclusion of the citizenship question on the census. There is a sixth case that Justice Kavanaugh inexplicably did not cite: Murthy v. Missouri (2024) held that Missouri lacked standing to challenge the Biden Administration's "jawboning" of social media companies.
What do these six cases have in common? Red states lack standing, but blue states do have standing. It's really that simple--or at least that is the perception here in Texas. To show the Court is being "evenhanded," Kavanaugh lists how often conservative litigants lose on an otherwise conservative court.
Early in Kavanaugh's tenure, I objected when he made a point about how President Clinton signed a "strict" immigration bill. I wrote:
I have no doubt that Kavanaugh's intent here was as innocuous as in Rimini. But the implication was very different: The Court was not being "strict" toward immigrants; a bipartisan Congress and Clinton were being "strict" toward immigrants. In other words, don't blame us for interpreting the law in a tough fashion—even a Democrat was fine with it.
As several Kavanaugh clerks promptly told me, it has long been Kavanaugh's practice to reference the name of the President who signed the bill. There is definitely a Schoolhouse Rock virtue here. But I also think it conveys a substantive point. Indeed, I often stress that President Clinton signed both DOMA and RFRA to stress the bipartisan nature of those laws.
In Diamond Alternative Energy, Justice Kavanaugh lists all the times that the Court ruled against conservatives to show how it is being "even-handed." I recently wrote that "If [Chief Justice] Roberts views himself as an umpire, his strike zone will ensure that the red team and the blue team usually play a close game, and neither side wins by a large margin." Kavanaugh, regrettably, suggests he is keeping score as well. Kavanaugh has similarly praised the Nixon appointees for ruling against the President who appointed them in United States v. Nixon. Why is that fact relevant unless the standard presumption is that a Nixon appointee should rule in favor of President Nixon? Is this how Kavanaugh thinks of things? I suggested as much after reading Gorsuch and Kavanaugh's perplexing decisions in the tax return cases.
In any event, when Justice Kavanaugh says these cases "disprove" Justice Jackson's argument, he is tacitly acknowledging how the Court refuses to grant standing to red cases, even as it finds standing for moneyed interests. Both Jackson and Kavanaugh miss the obvious distinction. Here, we have another manifestation of Originalism, Inc.
By the way, I did not know this factoid, which I learned in Justice Jackson's dissent: "Cass Gilbert, who designed the Supreme Court building, also designed the Chamber of Commerce's headquarters in Washington, D. C., and the New York Life building in Manhattan, among other major commercial offices."
On Wednesday, the Court decided United States v. Skrmetti. This petition, brought by the Biden DOJ, only presented the question whether Tennessee's law violated the Equal Protection Clause. DOJ did not petition on the substantive due process issue. Indeed, under 42 U.S.C. § 2000h-2, the Attorney General only has the authority to intervene in an equal protection case.
Whenever an action has been commenced in any court of the United States seeking relief from the denial of equal protection of the laws under the fourteenth amendment to the Constitution on account of race, color, religion, sex or national origin, the Attorney General for or in the name of the United States may intervene in such action upon timely application if the Attorney General certifies that the case is of general public importance. In such action the United States shall be entitled to the same relief as if it had instituted the action.
The ACLU, which represented the plaintiffs, petitioned on both due process and equal protection in the case known as L.W. v. Skrmetti. The ACLU's petition remains pending, even though counsel for the ACLU was permitted to argue.
What happens next? Mahmoud v. Taylor is awaiting a decision. If Mahmoud addresses the due process clause with regard to parental rights, the Court might GVR the ACLU's Skrmetti petition.
In a previous post, I criticized a dangerous provision of the Senate version of Trump's "Big Beautiful Bill" that would radically undermine judicial protection for constitutional rights by requiring litigants seeking preliminary injunctions against illegal federal government actions to post potentially enormous bonds. There, I highlighted a critique by Arizona Supreme Court Justice Clint Bolick, who was previously a prominent libertarian public interest litigation.
Yesterday, a coalition of major, mostly libertarian and conservative, - public interest group leaders submitted a letter to the Senate opposing this provision and urging Congress to reject it. Signatories include leaders of the Firearms Policy Coalition (which organized the letter), the Institute for Justice, FIRE, the Goldwater Institute, the Liberty Justice Center, and more. Here is an excerpt from the letter:
We write as a coalition of organizations who rely on the federal judiciary to uphold constitutionally protected rights and serve as a check on unlawful government action. We are gravely concerned about a proposed provision in the Senate Judiciary Committee's language of the reconciliation package (Subtitle B, Section 203 of H.R. 1, the One Big Beautiful Bill Act) that, if enacted, would mandate that courts require security in order to issue a temporary restraining order or preliminary injunction against the federal government, effectively shutting down access to justice for most Americans. As it stands today, this provision would require a bond that covers the "costs and damages" sustained by the government if it were to ultimately prevail in the case. We're talking upwards of millions, if not billions, of dollars that could be required upfront, effectively shutting off people's ability to enjoin the federal government from causing irreparable harm….
This is not a partisan issue—it's a direct threat to constitutional accountability. If enacted, this provision could seriously impair meritorious public interest litigation across the board, no matter the issue or ideology. The substance of a claim wouldn't matter. What would matter is whether the plaintiff can afford to pay. Access to justice would hinge on wealth, not merit, leaving Americans of all political stripes without recourse when their rights are violated.
The courts use temporary restraining orders and preliminary injunctions to prevent unconstitutional or illegal policies from taking effect while a case is being litigated. This is often the only way to avoid immediate and irreversible harm, censorship of protected speech, illegal regulations that destroy livelihoods, or restrictions that prevent the peaceable exercise of constitutionally protected freedoms. These injunctions are only granted when a court determines the plaintiff is likely to prevail and that the harm without relief would be serious.
But under this provision, a plaintiff's ability to obtain that critical protection would depend not on the merits of their case, but on their ability to pay a potentially astronomical bond up front….
This is not legal reform. This is a financial blockade on constitutional accountability. It rigs the system in favor of unchecked federal power, and it sends a chilling message: unless you're wealthy, don't bother trying to protect your rights.
If this provision is enacted, it won't matter what political party is in power: its impact will be felt by everyone. Whether the issue is freedom of speech, religious liberty, due process, or any other fundamental freedom, this kind of legal barrier puts them all at risk in a "heads I win, tails you lose" framework—with the federal government on top.
No government should be allowed to insulate itself from judicial review by making it prohibitively expensive for Americans to petition the government for redress and seek to protect their rights through restraining orders and preliminary injunctions, often the last line of defense before suffering irreparable harm.
I agree completely! I would add that this provision creates a perverse incentive for government officials to actually increase the scale of their illegal policies. The larger the scale, the higher the potential costs "suffered" by the government if it is unable to immediately implement them. Challenging the illegal detention of a thousand people will probably require a bigger bond than challenging that of one or a few. Challenging the illegal seizure of a large amount of property would require a larger bond than challenging that of a small amount. And so on.
In my earlier post, I made a few additional points that bear repetition here:
Right now, Republicans are seeking to enact these restrictions in order to block injunctions constraining a GOP administration's policies. But, as Bolick notes [the coalition letter makes this point, as well], under a more left-wing administration the same tool can easily be turned against rights conservatives value. Consider a left-wing president who targets gun rights or religious liberty rights, or tries to censor speech DEI activists consider offensive.
Ultimately, it is more important to ensure the vast powers of the federal government cannot be used to undermine the Constitution and take away our rights than to ensure an administration can swiftly implement all its preferred policies. And if a rogue district court does impose an injunction improperly, higher courts can quickly stay or overturn it, as has happened a number of times in recent months.
If this Senate provision gets enacted, there is a chance courts might invalidate it as an unconstitutional assault on the power of judicial review - which it is. But it would be better if Congress does not go down this dangerous road in the first place.
It may be that this provision will be ruled out of order, because it violates the "Byrd Rule," which restricts the range of policies that can be enacted through reconciliation bills, bypassing the Senate filibuster. If not, Congress should strip this unjust and dangerous policy from the bill.
NOTE: As regular readers know, I have longtime associations with some of the groups that signed the coalition letter. for example, the Institute for Justice and I have worked together on various property rights issues, and I was a summer clerk there when I was a law student. Currently, the Liberty Justice Center and I are working together on the tariff case, where I am co-counsel along with several LJC attorneys.
UPDATE: In the initial version of this post, I forgot to include a link to the coalition letter. I apologize for that oversight, which has now been fixed.
A lot can happen in five years. June 2020, or Blue June as I called it, was one of the most depressing periods in recent Supreme Court history. After Justice Kennedy retired, Chief Justice Roberts became the new swing vote, and swung to the left in nearly every case. Perhaps the most confounding decision was Bostock. Justice Gorsuch, joined by Chief Justice Roberts, ruled that the Civil Rights Act of 1964 all along prohibited discrimination against gays, lesbians, and transgender people.
The decision was profoundlywrong. Yet, I think Bostock can be understood, at least in part, as a reflection of the zeitgeist. June 2020 was close to peak woke. The pandemic combined with #MeToo and the George Floyd "racial reckoning" created a perform storm for progressivism. All of the trend lines seemed to be moving towards the acceptance of what is often described as transgender ideology--the argument that biological sex and gender identity were distinct, and that irreversible medical treatment should be provided to minors to conform biological sex sex to gender identity.
But over the past five years, those trend lines reversed. This reversal was due, in part, to new medical information about how puberty blockers and cross-sex hormones affect minors. It was also due to revelations that public schools were secretly transitioning children without their parents' consent. And perhaps most critically, people became no longer afraid to criticize the orthodoxy. The left's most powerful tool was censorship--on social media in particular. But boycotts against Target and Bud Light, as well as demonstrations about biological males competing in female sports, shifted the Overton Window on what could be discussed. (I worry that Justice Barrett would see these movements as "animus.")
Supporting these shifts were state legislatures that passed laws restricting providing medical treatment to minors, and barring transgender athletes from sports. Were these laws clearly constitutional under United States v. Virginia? I'll just say that Justice Sotomayor's dissent was more persuasive than I expected. Were these laws consistent with the "because of" analysis under Bostock? Again, I think the dissent made the case more persuasively than I expected. Chief Justice Roberts gave us yet another Houdini opinion: focus on the exceptions for the medical treatment, and ignore the necessary role that biological sex plays in the regime. The man is a master of misdirection. Don't be fooled. I think the Sixth Circuit and Justice Alito got it right.
So what changed between 2020 and 2025? In particular, what can explain the votes of Chief Justice Roberts and Justice Gorsuch. In fairness, I'm not sure the Chief ever fully bought Gorsuch's position. As the sixth member, he had a free vote, and he could cast it to help create the appearance of bipartisanship. I would like to give Roberts the benefit of the doubt, but he surrendered the presumption of regularity after NFIB.
What about Justice Gorsuch? It is difficult to describe how much anger Gorsuch received within conservative circles for Bostock. That decision gave Adrien Vermeule the perfect opportunity to advance common good constitutionalism. Bostock also opened a window for the James Wilson Institute to promote the study of natural law. For many people (not me) Bostock was the first hint that something was wrong with the Trump appointees. At a Federalist Society Convention, Gorsuch joked that he doesn't care what we think about his decisions. But that isn't true. One doesn't become a Supreme Court justice unless one deeply cares what members of his community think. Noscitur a sociis. Judge a judge by the company he keeps.
I remain convinced that the full court press placed on the conservative Justices helped grease the skids for Dobbs. And I think that pressure had an effect on Justice Gorsuch as well.
For example, during oral argument in Skrmetti, Justice Gorsuch did not say a word. He did not open his mouth once. Even as the word "Bostock" was uttered more than twenty times, Gorsuch said nothing. He gave the Wall Street Journal editorial page nothing to scrutinize.
What about during the opinion hand down? Mark Walsh offered this account:
As she discusses her view that the majority is trying to distinguish "away" Bostock v. Clayton County, the 2020 decision that said Title VII covered sexual orientation and gender identity in employment, Justice Neil Gorsuch, the author of Bostock but a member of today's majority, turns just to his left and looks at her intently, with his hand to his head.
The sound of silence.
(I am grateful that SCOTUSBlog-Dispatch is re-investing in this valuable feature.)
In Skrmetti, Roberts and Gorsuch walked back Bostock. That much is clear. Will it be overruled? Justice Alito said he would sail under that pirate flag as a matter of statutory stare decisis.
I dissented in Bostock, but I accept the decision as a precedent that is entitled to the staunch protection we give statutory interpretation decisions
But it will not be extended a single league further.
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