The Volokh Conspiracy

In a 2015 amicus brief, I contended that President Obama's executive action known as DAPA was not supported by statutory authority. And in a footnote, I made an alternate argument, hinting at what would become known as the major questions doctrine:

[F]inding the wholesale authority in these provisions that the government claim would be akin to discovering the "elephants in mouseholes" that the Supreme
Court has described as indicia of an implausible delegation from Congress. See Whitman v. Am. Trucking Ass'ns, 531 U.S. 457, 468 (2001); FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 133–35 (2000).

To this day, the Supreme Court has somehow managed to avoid resolving this issue. In 2016, after Justice Scalia's death, the Court split 4-4 on the validity of DAPA. And in 2020, the Court ruled that the Trump Administration's rescission of DACA failed to adequately consider reliance interests. Last month, Judge Hanen heard oral argument in Texas's challenge to the DACA policy. Yes, this case is still going on.

Last week, I wrote about how U.S. v. Texas affects the standing inquiry in the DACA case. Here, I will discuss the impact of Biden v. Nebraska on the merits of the DACA litigation.

DACA turns on two sources of statutory authority:

6 U.S.C. § 202(5): "The Secretary shall be responsible for . . . Establishing national immigration enforcement policies and priorities."

8 U.S.C § 1103(a): "The Secretary of Homeland Security shall be charged with the administration and enforcement of this chapter and all other laws relating to the immigration and naturalization of aliens…"

That's it.

In Nebraska, Chief Justice Roberts's majority opinion found that the HEROES Act did not support the Secretary's loan forgiveness policy. A few elements seem relevant to the DACA litigation.

First, the Chief Justice found that the government's reading of the HEROES Act grants the Secretary the power to "rewrite" the statute.

Under the Government's reading of the HEROES Act, the Secretary would enjoy virtually unlimited power to rewrite the Education Act. This would "effec[t] a 'fundamental revision of the statute, changing it from [one sort of] schemeof . . . regulation' into an entirely different kind," West Virginia, 597 U. S., at ___ (slip op., at 24) (quoting MCI, 512 U. S., at 231)—one in which the Secretary may unilaterally define every aspect of federal student financial aid, provided he determines that recipients have "suffered direct economic hardship as a direct result of a . . . national emergency." 20 U. S. C. §1098ee(2)(D).

So too with the immigration two statutes cited above. If those provisions grant the Secretary the power to implement DACA, he would have the authority to rewrite the laws. (Curiously, Justice Kavanaugh's concurrence in Moore v. Harper focused on the state supreme court's ability to "rewrite" election law, so this standard is in the air.)

Second, the Chief Justice looked to "past practice under the statute."

So too here, where the Secretary of Education claims the authority, on his own, to release 43 million borrowers from their obligations to repay $430 billion in student loans. The Secretary has never previously claimed powers of this magnitude under the HEROES Act. As we have already noted, past waivers and modifications issued under the Act have been extremely modest and narrow in scope. The Act has been used only once before to waive or modify a provision related to debt cancellation: In 2003, the Secretary waived the requirement that borrowers seeking loan forgiveness under the Education Act's public service discharge provisions "perform uninterrupted, otherwise qualifying service for a specified length of time (for example, one year) or for consecutive periods of time, such as 5 consecutive years." 68 Fed. Reg. 69317. That waiver simply eased the requirement that service be uninterrupted to qualify for the public service loan forgiveness program. In sum, "[n]o regulation premised on" the HEROES Act "has even begun to approach the size or scope" of the Secretary's program. Alabama Assn., 594 U. S., at ___ (slip op., at 7).

Way back in 2014, I explained how there was no past practice to support DACA. People disagreed with me then, and now. In any event, the language here is quite helpful to Texas.

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The Americans with Disabilities Act was enacted in 1990. This landmark statute provided federal protection for a wide range of disabilities. But the statute created an express exception for "gender identity disorders not resulting from physical impairments." In Williams v. Kincaid, the Fourth Circuit found that "gender dysphoria" was not equivalent to what the ADA referred to as a "gender identity disorder." Thus, the panel ruled, gender dysphoria was a disability protected by the ABA. The panel favored this reading "to avoid a serious constitutional question." Specifically, the panel concluded that excluding protections for "gender dysphoria would discriminate against transgender people as a class, implicating the Equal Protection Clause of the Fourteenth Amendment." And, under circuit precedent (Grimm v. Gloucester County School Board), the classification did not survive intermediate scrutiny.

But the panel went further. It found that the enactment of this statute was tainted "evidence of discriminatory animus toward transgender people." The panel then quoted legislative history from members of Congress that analogized "gender identity disorders" with immoral and criminal behavior. Many of these statements echoed the claim in the Defense of Marriage Act that the law evinced a "moral disapproval" of same-sex marriage. The panel cited Romer, a classic Kennedy opinion that relied on the "discriminatory animus" standard.

In light of the "basic promise of equality … that animates the ADA," we see no legitimate reason why Congress would intend to exclude from the ADA's protections transgender people who suffer from gender dysphoria. Nat'l Fed. of the Blind, 813 F.3d at 510. The only reason we can glean from the text and legislative record is "a bare … desire to harm a politically unpopular group[, which] cannot constitute a legitimate governmental interest." Romer.

Since Justice Kennedy's retirement, I have wondered about the status of "animus"- and "bare desire to harm"- jurisprudence. I don't think Romer, Lawrence, or Obergefell will be overruled. (Sorry, Justice Thomas). But I am skeptical the Court finds similar animus in a future case.

Kincaid was appealed to the Supreme Court. On the mop-up list, the Supreme Court denied certiorari. Justice Alito, joined by Justice Thomas, dissented from the denial of certiorari. And he flagged the Equal Protection issue:

The panel majority sought to bolster its interpretation of the ADA by invoking the doctrine of constitutional avoidance. The majority argued that even if the ADA's text did not require this interpretation, it would nevertheless be necessary in order "to avoid a serious constitutional question" under the Equal Protection Clause. Citing Circuit precedent, the majority found that "the ADA's exclusion of 'gender identity disorders' " from the definition of disability was "evidence of . . . discriminatory animus" by Congress, and to support this conclusion, the majority pointed to "moral judgment[s]" expressed by legislators who backed the exclusion for "gender identity disorders."

Justice Alito rejected this Kennedy-esque approach to the Equal Protection Clause:

Finally, the Fourth Circuit's animus analysis relies too heavily on statements made by a few Members of Congress and does not sufficiently take into account the many considerations that Congress may have had in mind in adopting a piece of major legislation like the ADA. A legislative body "need not address all aspects of a problem in one fell swoop; policymakers may focus on their most pressing concerns." Williams-Yulee v. Florida Bar (2015). Congress may also have thought that coverage of gender-identity-related conditions would raise special free speech and free exercise concerns. It seems more than uncharitable to say, as the Fourth Circuit did, that "[t]he only reason we can glean" for excluding gender identity disorders is "'a bare . . . desire to harm a politically unpopular group.'" 45 F. 4th, at 773.

Were this the test, then Windsor would have upheld the Defense of Marriage Act. But we have a different Court now then we did a decade ago.

Cert was denied in Kincaid. And on quick glance, there appear to be vehicle problems. But the Supreme Court should clarify this issue sooner rather than later. It will be very difficult for a circuit split like this to sustain itself. Eventually, enough circuits will agree with the Fourth Circuit, thus making this issue harder to revisit.

In Brackeen, Justice Barrett faulted counsel for the adoptive parents. She wrote that they failed to "offer a theory for rationalizing" the Indian Commerce Clause. Therefore, she was not willing to accept their position. Admittedly, Indian law is very complicated, and the attorneys did not have answers to all of their questions. But in my view, that was not the usual standard in constitutional litigation. Rather, as I saw it, Justice Barrett was imposing a "staggeringly heavy" burden on the petitioners. Indeed, I'm not sure if the arguments in United States v. Lopez, as they were presented in 1996, would have been sufficient for Justice Barrett.

Will Baude offers a way of explaining Barrett's approach in Brackeen, as well as in Fulton v. City of Philadelphia. He calls it the "look before you leap" principle:

In both cases, Justice Barrett wants some account of where a theory of the law is supposed to take her before she decides whether to embrace it. In Brackeen, that's a theory of how to reconcile—or to not reconcile, either one!—the challengers' theory of federal Indian power with the Court's cases. In Fulton it's a theory of what would replace Employment Division v. Smith if Smith is to be overruled. It demonstrates, I think, a quite sensible refusal to just muddle through and assume the law will sort itself out later.

In 2021, I was somewhat flummoxed by Justice Barrett's concurrence in Fulton. She raised a host of questions that should have been apparent to anyone who has considered Smith over the past three decades. None of the questions were particularly insightful or novel. Sometimes, I attend a presentation of a terrible paper. I think the author has a bad idea that I cannot get behind, so I come up with a few random, polite questions to at least show interest in the topic, but I don't really care about the answers. That was how I saw Justice Barrett's Fulton concurrence--she was going through the motions because she did not want to overrule Smith. Was Justice Barrett actually interested in the answers to her questions? Doubtful. In the wake of Fulton, the Court has denied several petitions that would have given parties a chance to answer Justice Barrett's questions.

Was Justice Barrett looking before she leapt in Fulton and Brackeen. I think that theory only works if she would ever actually jump. With regard to Brackeen, I doubt any litigant can ever present her a perfect theory wrapped with an originalist bow about the Indian Commerce Clause. And with regard to Fulton, Smith is safe and sound, at least at it was interpreted in Roman Catholic Diocese and Fulton. And perhaps Justice Barrett may recognize Equal Protection problems with ICWA, but I am skeptical there are even four votes to grant cert on that followup case. Striking down ICWA on as applied grounds would create nearly as much chaos as the facial challenge.

Rather than "look before you leap," I think Justice Barrett simply favors judicial restraint. She resembles Justice Scalia, circa late 1980s or early 1990s. Her not-entirely-positive review of Barnett's Our Republican Constitution is the cleanest distillation of her judicial philosophy. Here is an excerpt from the introduction:

In this essay, I begin by developing the connection between Barnett's theory of the Constitution and his approach to judicial review. I then express doubt about the historical support for Barnett's approach, contend that the task he would give courts fails to account for the realities of the legislative process, and argue that he overestimates the institutional capacity of courts. I conclude by praising Barnett's attention to the often-misunderstood concept of judicial restraint. That is a point on which many can agree with Barnett, regardless whether they accept his republican take on our Constitution.

Justice Gorsuch would not sign onto this review. For all his faults, he is not a judicial restrainter. What about Justice Kavanaugh? I have no clue what he actually thinks. (More on his output this term in another post.)

That background brings me to Justice Barrett's concurrence in Biden v. Nebraska. She offered what I think is the Court's strongest defense of the major questions doctrine. But why did she do work that the parties did not? With all respect, the parties in Nebraska, and in West Virginia, did not present a coherent "theory for rationalizing" the MQD. (There are countless law professors who wrote lots of tweets to prove this point!) Justice Barrett did so on her own. I see no problem with this approach, but it does undermine her critiques of the lawyers in Brackeen for not connecting all the dots. If Justice Barrett wants to figure something out on her own, she can. (And I wish she would do it more, because she is one of the Court's best big thinkers!)

What, then, is the difference between Brackeen and Fulton on the one hand and Nebraska on the other hand? Well, Professor Barrett gave some thought to substantive canons before her appointment. Indeed, she cites her article in the first sentence of Part I-A, and then throughout her concurrence:

Substantive canons are rules of construction that advance values external to a statute. A. Barrett, Substantive Canons and Faithful Agency, 90 B. U. L. Rev. 109, 117 (2010) (Barrett). Some substantive canons, like the rule of lenity, play the modest role of breaking a tie between equally plausible interpretations of a statute. United States  v. Santo (2008) . Others are more aggressive—think of them as strong-form substantive canons. Unlike a tie-breaking rule, a strong-form canon counsels a court to strain statutory text to advance a particular value. Barrett 168. There are many such canons on the books, including constitutional avoidance, the clear-statement federalism rules, and the presumption against retroactivity. Id., at 138–145, 172–173.

As best as I can recall, Justice Barrett never wrote about the Free Exercise Clause and Smith, so it is indeed plausible she never gave much thought to the consequences of overruling that case. (Just like Justice Thomas never thought much about Roe before his confirmation!) And Justice Barrett likewise never wrote about the Indian Commerce Clause. (Who did?) But Justice Barrett did write about substantive canons! Perhaps, then, we can predict that Justice Barrett is comfortable "leaping" into issues that she wrote about as an academic. What are those topics? Her Senate Judiciary Committee questionnaire from her Seventh Circuit nomination lists eleven law review articles:

1. Catholic Judges in Capital Cases, Marquette Law Review (1998) (with John Garvey) (49 pages)
2. Stare Decisis and Due Process, University of Colorado Law Review (2003) (66 pages).
3. Statutory Stare Decisis in the Courts of Appeals, George Washington Law Review (2005) (37 pages).
4. The Supervisory Power of the Supreme Court, Columbia Law Review (2006).
5. Procedural Common Law, Virginia Law Review (2008) (77 pages).
6. Stare Decisis and Nonjudicial Actors, Notre Dame Law Review (2008) (27 pages).
7. Substantive Canons and Faithful Agency, Boston University Law Review (2010).
8. Precedent and Jurisprudential Disagreement, Texas Law Review (2013) (28 pages).
9. Suspension and Delegation, Cornell Law Review (2014).
10. Countering the Majoritarian Difficulty, Constitutional Commentary (2016) (Book Review) (18 pages).
11. Congressional Originalism, 18 University of Pennsylvania Journal of Constitutional Law (2016) (with John Copeland Nagle) (45 pages).

Litigants looking to present a case to the Supreme Court should read these few articles carefully, and cite accordingly. Justice Barrett's willingness to do something that was not done before will depend on how cohesive of a theory the litigants present. Though, in all likelihood, if Justice Barrett is not going to leap on the first jump, she will probably never leap. She said as much in Nebraska:

Thus, even assuming that the federal courts have not overstepped by adopting such canons in the past, I am wary of adopting new ones—and if the major questions doctrine were a newly minted strong-form canon, I would not embrace it. In my view, however, the major questions doctrine is neither new nor a strong-form canon.

The defining feature of Justice Barrett's jurisprudence so far is restraint, rather than originalism. I think Dobbs only came out the way it did because Roe and Casey were in fact egregiously wrong, and those decisions have wreaked decades of havoc on our republic. But beyond Dobbs, at least so far, Justice Barrett will take the road more traveled, and do what was done before.

Nebraska v. Biden was something of a surprise. Based on my read of the briefs and oral argument, I came to the tentative conclusion that Missouri lacked standing. But the Chief Justices's opinion was more persuasive than I expected. Then again, the Chief can be extremely slippery with his legal analysis.

I have no idea if the Missouri Attorney General can sue on behalf of the Missouri Higher Education Loan Authority (MOHELA). The majority resolved this issue largely on the basis of Arkansas v. Texas, which allowed Arkansas to sue on behalf of the University of Arkansas. The dissent responded that the University of Arkansas lacked an independent basis to sue, while MOHELA does have such authority. Rather, the dissenters parsed through decisions of the Missouri Supreme Court which found that similar institutions were not instrumentalities of the state. Does the dissent accurately read Missouri law? Who knows?

It seems to me that the correct course here would have been for the Eighth Circuit to certify the question to the Missouri Supreme Court. That body could have authoritatively resolved the status of MOHELA. Given that the Supreme Court's ruling sweeps nationwide (hello nationwide vacatur!), certification would have been appropriate. Instead, we are left with a standing analysis that is probably good for one ride. Well, if the Biden Administration goes forward with another executive action on student loan relief, Missouri can once again say mahalo MOHELA.

Moving onto the merits, I think the Court was on fairly strong textualist ground. (I'll talk about the major question doctrine in another post.) The Chief's discussion of "waive or modify" was far more persuasive than Justice Kagan's attempt to splice "waive" and "modify" as distinct concepts. Moreover, I'm not even sure which provisions of law were being "waived." The dissent put a lot of weight on the ability of the Secretary to modify the "terms." But such a reading would allow the Secretary to enact virtually any changes to the statutory program. Of course, the majority does not address how Secretary DeVos could have temporarily suspended interest payments. If the majority is right, then the Trump Administration acted unlawfully. I do not think that recent exercise of executive power serves as sufficient past practice to justify the Biden administration's policy. But that history does weaken Nebraska's case, however much.

In the end, the effect of Nebraska v. Biden was fairly broad--millions of well-educated Americans who received federally-subsidized loans will have to pay back the debt they agreed to pay back. But the legal consequences of this decision are fairly minor. This decision applies only to a rather obscure pocket of federal law, that had never before been used in this fashion. In another post, I will discuss the relationship between the student loan cases, and the never-ending DACA litigation.

Update: A helpful reader writes that the Missouri Supreme Court declines to accept certifications from the Eighth Circuit, even though a statute authorizes certification. I stand corrected!

For nearly five decades, affirmative action was sustained on the opinion of Justice Lewis Powell. The key vote in Bakke thought that a diverse student body could improve learning on campus. Ultimately, Grutter adopted Justice Powell's rationale, and held that universities have a compelling interest to pursue the educational benefits that flow from a diverse student body. That simple premise spawned an entire institution around "diversity." Universities were forced to frame every decision they took in terms of using "diversity" as a way to help students learn. Of course, the real justification for affirmation action could be found in Justice Marshall's Bakke opinion. He grounded racial preferences for black students (and not other races) in the centuries of oppression, slavery, segregation, and discrimination. Indeed, the "educational benefits" approach tokenized minority students as curiosities for white students to learn from. Advocates for affirmative action had to grit their teeth to stay in the good graces of old white folk like Justices Powell and O'Connor.

Fast forward to Students for Fair Admissions. The majority opinion did not formally reverse Grutter--though I agree with Justice Thomas that the precedent is all but overruled. Still, the "educational benefits" rationale seems to have been nullified. Harvard identifies several specific educational benefits it was pursuing:

Respondents have fallen short of satisfying that burden. First, the interests they view as compelling cannot be subjected to meaningful judicial review. Harvard identifies the following educational benefits that it is pursuing: (1) "training future leaders in the public and private sectors"; (2) preparing graduates to "adapt to an increasingly pluralistic society"; (3) "better educating its students through diversity"; and (4) "producing new knowledge stemming from diverse outlooks."

The Court easily found those rationales were not sufficient:

Although these are commendable goals, they are not sufficiently coherent for purposes of strict scrutiny. At the outset, it is unclear how courts are supposed to measure any of these goals. How is a court to know whether leaders have been adequately "train[ed]"; whether the exchange of ideas is "robust"; or whether "new knowledge" is being developed?

Of course, the shortcomings of the "diversity rationale" were apparent in Fisher II, and Grutter. Nothing has changed. The voluminous trial record was irrelevant. But the earlier Courts, stocked with "brave" judges of "wisdom," did not ask the hard questions. They blindly deferred to the universities.

After SFFA, are there any actual educational benefits that flow from diversity, which could be considered an articulable compelling interest? I don't think so. The remainder of the Chief's opinion barely mentions educational benefits. The buzz words to end all buzz words are no longer so buzzy. Justice Powell's concurrence is dead. Justice O'Connor's majority opinion is irrelevant.

It was to be expected that the majority would discard the "educational benefits" rationale. But I was surprised at how little that rationale featured in the dissents. Justices Sotomayor and Jackson wrote at length about white supremacy, institutional racism, and other reasons to justify affirmative action. But the purported benefits that can be obtained in the classroom were not on center stage. The phrase "educational benefits" appears only four times in Justice Sotomayor's dissent, and zero times in Justice Jackson's dissent.  Indeed, as Chief Justice Roberts pointed out, Justice Sotomayor cited Justice Powell "barely once," while Justice Jackson "ignores Justice Powell altogether." Rather, the dissenters rely almost exclusively on Justice Marshall's dissent. Under well-settled law, the universities have not invoked any sort of "remedial" interest. To the contrary, the dissenters adopted the en vogue theory that our society is plagued by structural racism and the Fourteenth Amendment must be interpreted to remedy that oppression. Chief Justice Roberts observed that "there is a reason" the dissenters have to rely on Justice Marshall's dissent, because they "surely cannot claim the mantle of stare decisis."

Going forward, can we drop the "educational benefits" charade? No one ever actually believed that racial preferences were justified by those purported benefits. But if not "educational benefits," then what compelling interest would suffice? The more I read the Chief's opinion, the more I conclude that no interest would suffice. Instead, admissions officers will have to go beyond trying to satisfy strict scrutiny. They will focus on this paragraph, and this paragraph alone, to consider race indirectly through the only means allowed:

At the same time, as all parties agree, nothing in this opinion should be construed as prohibiting universities from considering an applicant's discussion of how race affected his or her life, be it through discrimination, inspiration, or otherwise. But, despite the dissent's assertion to the contrary, universities may not simply establish through application essays or other means the regime we hold unlawful today. (A dissenting opinion is generally not the best source of legal advice on how to comply with the majority opinion.) "[W]hat cannot be done directly cannot be done indirectly. The Constitution deals with substance, not shadows," and the prohibition against racial discrimination is "levelled at the thing, not the name." Cummings v. Missouri (1867). A benefit to a student who overcame racial discrimination, for example, must be tied to that student's courage and determination. Or a benefit to a student whose heritage or culture motivated him or her to assume a leadership role or attain a particular goal must be tied to that student's unique ability to contribute to the university. In other words, the student must be treated based on his or her experiences as an individual—not on the basis of race.

In any event, we can finally say farewell to the "educational benefits" rationale. You will not be missed.

[This year, my annual post celebrating the Fourth of July is drawn from a chapter of Our Republican Constitution: Securing the Liberty and Sovereignty of We the People, and from a short essay on the same topic, The Declaration of Independence and the American Theory of Government: First Come Rights, and Then Comes Government." It also draws upon Sean Wilentz, No Property in Man: Slavery and Antislavery at the Nation's Founding]

The Declaration of Independence used to be read aloud at public gatherings every Fourth of July. Today, while all Americans have heard of it, all too few have read more than its second sentence. Yet the Declaration shows the natural rights foundation of the American Revolution, and provides important information about what the founders believed makes a constitution or government legitimate. It also raises the question of how these fundamental rights are reconciled with the idea of "the consent of the governed," another idea for which the Declaration is famous.

The adoption of the Declaration, and the public affirmation of its principles, led directly to the phased in abolition of slavery in half of the United States by the time the Constitution was drafted--as well as the abolition of slavery in the Northwest Territory. The Rhode Island gradual abolition law of 1784 read:

All men are entitled to Life, Liberty, and the Pursuit of Happiness, and the holding Mankind in a State of Slavery, as private property, which has gradually obtained by unrestrained Custom and the Permission of the Law, is repugnant to this Principle, and subversive of the Happiness of Mankind.

Later, the Declaration also assumed increasing importance in the struggle to abolish slavery. It became a lynchpin of the moral and constitutional arguments of the nineteenth-century abolitionists. As one New Yorker opposed to slavery wrote in 1797:

The right of property which every man has to his personal liberty is paramount to all the laws of property…. All I contend for at present is, that no claims of property can ever justly interfere with, or be suffered to impede the operation of that noble and eternal principle, that "all men are endowed by their Creator with certain unalienable rights–and that among these are life, liberty, and the pursuit of happiness.

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The most surprising case of the term was Groff v. DeJoy. I had no doubts that the postal worker would prevail. But the circuitous path by which the Court got there was shocking. Justice Alito wrote a unanimous opinion for the Court that reached a very careful compromise in a religious liberty case. Who had that on their SCOTUS bingo card?

What was the compromise? It turns out that TWA v. Hardison (1977) has been misread for five decades. Hundreds of judges throughout the federal judiciary consistently lacked the ability to read a Supreme Court decision. Even Judge Easterbrook, considered the paragon of textualism, misread the case. Justice Alito explains:

For example, two years ago, the Seventh Circuit told the EEOC that it would be an undue hardship on Wal-Mart (the Nation's largest private employer, with annual profits of over $11 billion) to be required to facilitate voluntary shift-trading to accommodate a prospective assistant manager's observance of the Sabbath. EEOC v. Walmart Stores East, L. P., 992 F. 3d 656, 659–660 (2021).

Now, in fairness, I think that Justice Alito's careful parsing of Justice White's majority opinion was illuminating. It really does seem that the "de minimis" line was not the Court's authoritative definition of "undue hardship." Justice Alito wrote:

The line read as follows: "To require TWA to bear more than a de minimis cost in order to give Hardison Saturdays off is an undue hardship." Id., at 84. Although this line would later be viewed by many lower courts as the authoritative interpretation of the statutory term "undue hardship," it is doubtful that it was meant to take on that large role. In responding to Justice Marshall's dissent, the Court described the governing standard quite differently, stating three times that an accommodation is not required when it entails "substantial" "costs" or "expenditures." Id., at 83, n. 14. This formulation suggests that an employer may be required to bear costs and make expenditures that are not "substantial." Of course, there is a big difference between costs and expenditures that are not "substantial" and those that are "de minimis," which is to say, so "very small or trifling" that that they are not even worth noticing.

Justice Alito is correct here. But how could the Supreme Court really have gone five decades without "clarifying" the doctrine? How many thousands of employees have been denied religious accommodations over the years because "jurists of wisdom" made so many errors. Indeed, the Supreme Court has denied review in several Hardison vehicles over the past few years.

At least the Court didn't just dismiss the "de minimis" language as dicta, like Chief Justice Roberts tried to do with the "viability" line from Roe.

On the plus side, all nine Justices formally buried the Lemon test. The majority opinion contained this line:

Just over three weeks later, the Court had handed down its (now abrogated)⁷ decision in Lemon v. Kurtzman, 403 U. S. 602 (1971) which adopted a test under which any law whose "principal or primary effect" "was to advance religion" was unconstitutional.

⁷ See Kennedy v. Bremerton School Dist., 597 U. S. ___, ___ (2022) (slip op., at 22).

Kennedy only said that Lemon was abandoned. Now, the majority agrees it was "abrogated." Lower courts, take note.

In Bruen, Justice Thomas observed that the Second Amendment, like the First Amendment, should be interpreted with an originalist standard. Thomas wrote that with the freedom of speech, "to carry that burden, the government must generally point to historical evidence about the reach of the First Amendment's protections." Really? That was news to me. Throughout the entire twentieth century, the Supreme Court erected an elaborate and intricate free speech jurisprudence. There are tiers of scrutiny, balancing tests, categorical tests, and more. But very little of the free speech caselaw could be called originalist. Sure, in some cases, the Court talks about history. But this jurisprudence was manufactured from the ground up.

Nowadays, the Court seems to eschew this sort of free-floating judging. Even when the Court develops new doctrine, it tries to ground those principles in history. But Counterman v. Colorado felt like a throwback to a different era. This case considered what the proper mens rea was in a true-threats case. Justice Kagan wrote the majority opinion, which was joined by Chief Justice Roberts and Justices Alito, Kavanaugh, and Jackson. Should it be purposeful, knowing, or recklessness?  The majority chose a recklessness standard. Why recklessness? Justice Kagan explained:

Among those standards, recklessness offers the right path forward.

The Court struck a balance between punishing threatening behavior and avoiding the chilling of protected speech. There is no originalist case for this standard or that standard. Rather, the Court made an overt value judgment.

Justice Barrett wrote a dissent, joined by Justice Thomas. Justice Barrett charged that the majority was engaging in an inherently legislative task:

The optimal balance strikes me as a question best left to the legislature, which could calibrate the mens rea to the circumstance—for example, higher for the criminal context and lower for the civil. The reality is that recklessness is not grounded in law, but in a Goldilocks judgment: Recklessness is not too much, not too little, but instead "just right."'

In response, Justice Kagan owned her open-ended balancing:

The dissent accuses the Court of making a "Goldilocks judgment" in favoring a recklessness standard. Post, at 13 (opinion of BARRETT, J.). But in law, as in life, there are worse things than being "just right."

How would Justices Barrett and Thomas have resolved this issue? The starting point is not the Justices' own sense of propriety, but history:

So is the silence in the historical record. Since 1791, true threats have been excluded from the "speech" protected by the First Amendment. R. A.V., 505 U. S., at 382–383, 388. If Counterman could show that a subjective requirement has been inherent in the definition of "true threat" since the founding, he would have a compelling case. But Counterman cannot make that showing. For starters, he produces no evidence directly addressing the meaning of the First Amendment—nothing from state ratifying conventions, political commentary, or even early debates about efforts to regulate threats in ways that might threaten speech. That is not surprising at the federal level, because the Federal Government did not prohibit threats until the early 20th century. Elonis, 575 U. S., at 760 (THOMAS, J., dissenting). Some States, however, both regulated threats and guaranteed the right to free speech in their own constitutions. Id., at 760–761. Yet even at the state level, there was apparently no discussion about the implications of these statutes for the constitutional right.

What should the Court do in the absence of historical support for this rule? The Justices should decline to expand the protections of the"true-threat" doctrine:

At the end of the day, then, the best historical case for Counterman does not add up to much. He is plainly not asking the Court to enforce a historically sanctioned rule, but rather to fashion a new one.

Justice Thomas wrote a separate dissent. He analogized the made-up true threats doctrine to the "actual malice" standard from New York Times v. Sullivan:

Like the majority's decision today, "New York Times and the Court's decisions extending it were policy-driven decisions masquerading as constitutional law." McKee v. Cosby, 586 U. S. ___, ___ (2019) (THOMAS, J., concurring

Moreover, Justice Thomas faults the majority for extending further this "flawed" jurisprudence.

Many Members of this Court havequestioned the soundness of New York Times and its numerous extensions. See, e.g., Berisha, 594 U. S., at ___–___ (GORSUCH, J., dissenting from denial of certiorari) (slip op., at 5–8); Coughlin v. Westinghouse Broadcasting & Cable, Inc., 476 U. S. 1187 (1986) (Burger, C. J., joined byRehnquist, J., dissenting from denial of certiorari); Gertz, 418 U. S., at 370 (White, J., dissenting); Rosenbloom v. Metromedia, Inc., 403 U. S. 29, 62 (1971) (Harlan, J., dissenting); id., at 78 (Marshall, J., dissenting); Rosenblatt v. Baer, 383 U. S. 75, 92 (1966) (Stewart, J., concurring); see also E. Kagan, A Libel Story: Sullivan Then and Now, 18 L. & Soc. Inquiry 197, 207 (1993); J. Lewis & B. Ottley, New York Times v. Sullivan at 50, 64 DePaul L. Rev. 1, 35–36 (2014) (collecting statements from Justice Scalia); cf. Tah v. Global Witness Publishing, Inc., 991 F. 3d 231, 251–256 (CADC 2021) (Silberman, J., dissenting in part) (questioning the doctrine). It is thus unfortunate that the majority chooses not only to prominently and uncritically invoke New York Times, but also to extend its flawed, policy-driven First Amendment analysis to true threats, a separate area of this Court's jurisprudence.

The Court should not extend doctrine that itself has no grounding in the Constitution's original meaning. Justices Barrett and Thomas are exactly right.

For three decades, Anthony Kennedy was America's moral arbiter. He alone got to decide what was legal and what was illegal. Abortion, sodomy, gay marriage, and so on. In Dobbs, the dissenters waxed nostalgia about Justice Kennedy, along with Justices O'Connor and Souter, as "judges of wisdom."

In 303 Creative, Justice Sotomayor's dissent expressed a similar yearning for the Hercules's of the day.

Around the country, there has been a backlash to the movement for liberty and equality for gender and sexual minorities. New forms of inclusion have been met with reactionary exclusion. This is heartbreaking. Sadly, it is also familiar. When the civil rights and women's rights movements sought equality in public life, some public establishments refused. Some even claimed, based on sincere religious beliefs, constitutional rights to discriminate. The brave Justices who once sat on this Court decisively rejected those claims. Now the Court faces a similar test.

No doubt, the "brave Justices" include Justice Kennedy, who single-handedly rewrote the law concerning gays and lesbians in America: Romer, Lawrence, Windsor, and Obergefell. In hindsight, Obergefell may seem like a foregone conclusion, but the three-decade trip from Bowers to Obergefell was anything but certain.

Still, I am not sure that the assignment of bravery is correct. Justice Kennedy was always extolled in elite circles for his progressive jurisprudence, while Justice Scalia and the dissenters were lambasted as bigots. Those dynamics were true a decade ago, but are even more stark now. Indeed, I think the bravest act is to rule against the sentiments of elite opinion. The six members of the majority did so with fearlessness.

Bench trials were held in both the Harvard and UNC cases. And both district court judges made extensive findings concerning how the universities used race in admissions. Did those findings matter to the Supreme Court? Probably not. In Students for Fair Admissions, Justice Sotomayor claims that the majority disregarded the findings of the trial court judges, and substituted its own facts.

The Court ignores these careful findings and concludes that Harvard engages in racial balancing because its "focus on numbers is obvious." Ante, at 31. Because SFFA failed to offer an expert and to prove its claim below, the majority is forced to reconstruct the record and conduct its own factual analysis. It thus relies on a single chart from SFFA's brief that truncates relevant data in the record. Compare ibid. (citing Brief for Petitioner in No. 20–1199, p. 23) with 4 App. in No. 20–1199, p. 1770. That chart cannot displace the careful factfinding by the District Court, which the First Circuit upheld on appeal under clear error review.

Justice Jackson made similar claims:

The majority cannot deny this factual finding. Instead, it conducts its own back-of-the-envelope calculations (its numbers appear nowhere in the District Court's opinion) regarding "the overall acceptance rates of academically excellent applicants to UNC," in an effort to trivialize the District Court's conclusion. I am inclined to stick with the District Court's findings over the majority's unauthenticated calculations.

Meanwhile, in 303 Creative, the web site designer and the state reached a series of factual stipulations. For example, the parties stipulated that Smith's web sites are "expressive" and Smith would create websites for gay and lesbian clients, so long as those web sites do not violate her beliefs. Did these facts matter to the majority? Yes, as it allowed the Court to skirt certain difficult questions about what types of speech are expressive. Justice Gorsuch's majority opinion relied extensively on those stipulations.

The Tenth Circuit held that the wedding websites Ms. Smith seeks to create qualify as "pure speech" under this Court's precedents. We agree. It is a conclusion that flows directly from the parties' stipulations. They have stipulated that Ms. Smith's websites promise to contain "images, words, symbols, and other modes of expression." They have stipulated that every website will be her "original, customized" creation. Id.. And they have stipulated that Ms. Smith will create these websites to communicate ideas—namely, to "celebrate and promote the couple's wedding and unique love story" and to "celebrat[e] and promot[e]" what Ms. Smith understands to be a true marriage.

In dissent, Justice Sotomayor downplays those stipulations. Indeed, the word "stipulation" appears nowhere in her opinion. Justice Gorsuch explains in his majority opinion:

When the dissent finally gets around to that question—more than halfway into its opinion—it reimagines the facts of this case from top to bottom. The dissent claims that Colorado wishes to regulate Ms. Smith's "conduct," not her speech. Forget Colorado's stipulation that Ms. Smith's activities are "expressive," App. to, and the Tenth Circuit's conclusion that the State seeks to compel "pure speech." The dissent chides us for deciding a pre-enforcement challenge.  But it ignores the Tenth Circuit's finding that Ms. Smith faces a credible threat of sanctions unless she conforms her views to the State's. The dissent suggests (over and over again) that any burden on speech here is "incidental." All despite the Tenth Circuit's finding that Colorado intends to force Ms. Smith to convey a message she does not believe with the "very purpose" of "[e]liminating . . . ideas" that differ from its own.

When the facts are on your side, argue the facts. If the law is on your side, argue the law. Otherwise, pound the table.

Just the facts, ma'am.

Fun fact: on the original Dragnet TV series, Joe Friday (played by Jack Webb) never actually said "Just the facts, ma'am," but that phrase has seeped into pop culture. It also appeared in the 1987 film starring Dan Aykroyd and Tom Hanks. If you have no idea what I'm talking about, you never watched Nick-at-night.